The Courts' Approach to the Idea of the Duty of Care From Early Case to Caparo

The Courts' Approach to the Idea of the Duty of Care From Early Case to Caparo

The concept of duty of care serves to define the interests that are

protected by the tort of negligence[1]. Negligence is the breach by

the defendant of a legal duty to care, which results in damage to the

claimant[2].

Prior to 1932 there was no general principle of duty of care, there

were merely a few clearly defined circumstances where the courts held

a duty of care was owed. E.g. Parent and child, Doctors and patients,

and Motorists and other road users owe a duty to one another.

An attempt was made to create a rationale for all the discrete duty

situations by Brett MR in Heaven v. Pender (1883)[3]. The majority of

the court of Appeal refused to establish a general principle to test

when a duty of care arises and decided to maintain the traditional

case by case approach.

The development of the doctrine of duty of care really began with the

case of Donoghue v. Stevenson (1932)[4] and the establishment of the

'neighbour' principle by Lord Atkin;

"You must take reasonable care to avoid acts or omissions which you

can reasonably foresee would be likely to injure your neighbour".

The 'neighbour' principle was confirmed by the House of Lords in

Hedley Byrne v. Heller (1964)[5] as being a flexible test which could

be applied in any situation. In this particular case the Lords applied

a variant of the 'neighbour' principle to the special situation of

pure economic loss. The 'neighbour' principle was based on reasonable

foreseeability and proximity, and in Home Office v. Dorset Yacht Co.

(1970)[6] Lord Reid said it should apply in all cases unles...

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.... London Borough Of Merton (1978) AC 728.

[17] Sutherland Shire Council (1985) 157 CLR 424.

[18] Caparo Industries v. Dickman (1990) 2 AC 605.

[19] Spring v. Guardian Assurance (1994) 3 ALL ER 129.

[20] Barrett v. Enfield Borough Council (1999) Unreported, but

available at www.lawtel.com

[21] King v. Phillips (1952) 1 ALL ER 617.

[22] X (Minors) v. Bedfordshire County Council (1995) 2 AC 633.

[23] Osman v. Ferguson (1993) 4 ALL ER 344.

[24] Hall v. Simons and Others (2000) 3 ALL ER 673.

[25] Smoldon v. Whitworth and Nolan (1997) PIQR 133.

[26] White v. Jones (1995) 1 ALL ER 691.

[27] Spring v. Guardian Assurance (1994) 3 ALL ER 129.

[28] Philcox v. Civil Aviation Authority (1995) Unreported, but

available on www.lawtel.com

[29] S.6 Human Rights Act 1998; Acts of public authorities.