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An individual is not automatically liable for every negligent act that he or she commits and in order to sustain an action in negligence
it must be shown that the party at fault owed a duty of care to the person injured as a result of their actions.
Consequently, the onus is on the claimant to establish that the respondent owed them a duty of care.
The test for establishing whether a duty of care exists was initially set out in Donoghue v Stevenson (1932), the snail in the ginger beer bottle case. In putting forward the test to establish a duty of care Lord Atkin stated that:
‘You must take reasonable care to avoid acts and omissions which you could reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? ... any person so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in
question.’
It can be seen that this neighbour test for deciding the existence of a duty of care is an objective, rather than a subjective one. It is not a matter of what the respondent actually considered, but what they ought to have considered. Nor does the test require the contemplation of the resultant effect on the specifi c individual injured, but merely requires that identity of a class of individuals who might be injured as a consequence of the respondent’s lack of care.
The idea of the neighbour, or proximity, test was extended in Hedley Byrne v Heller (1964), which established the possibility of liability for negligent misrepresentation causing economic loss, where a party gave inaccurate advice or information to another party, within a special relationship, and that party subsequently and reasonably relied on it.
The test in Donoghue v Stevenson was extended further in Anns v Merton LBC (1978), Lord Wilberforce introducing a two stage test for establishing the existence of a duty, as follows:
– Is there a suffi cient relationship of proximity or neighbourhood between the alleged wrongdoer and the person who has suffered damage such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter?
– If the fi rst question is answered in the affi rmative, are there then any considerations which ought to negate, reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of duty may give rise?
The impact of Anns led to the expansion of negligence, as the policy reasons acted only to limit liability once a duty had been found to exist, as opposed to limiting the existence of the duty itself. However, there was gradual criticism of, and retreat from the approach taken by Lord Wilberforce. Thus in Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1984), it was stressed that
the proximity test had to be satisfi ed before a duty of care could be found to exist.
The decision in Anns was eventually overruled by Murphy v Brentwood DC (1990).
In Caparo Industries plc v Dickman (1990), a three stage test for establishing a duty of care was recommended. This requires consideration of the following questions:
– Was the harm caused reasonably foreseeable?
– Was there a relationship of proximity between the defendant and the claimant?
– In all the circumstances, is it just, fair and reasonable to impose a duty of care?
As regards the fi nal element above see Marc Rich & Co v Bishop Rock Marine Co Ltd (The Nicholas H) (1996), for a subsequent application of the Caparo approach. In that case the House of Lords relied on policy reasons for not imposing a duty of care.
The present position appears to be that in establishing the existence of a duty of care in negligence, an incremental approach must be taken. The claimant must show that the defendant foresaw that damage would occur to the claimant, that is, that there was suffi cient proximity in time, space and relationship between the claimant and the defendant. In practical terms, foreseeability of damage will determine proximity in the majority of personal injury cases. The courts will then, where appropriate, consider whether it is just and reasonable to impose a duty and whether there are any policy reasons for denying or limiting the existence of a duty, for example, under the fl oodgates argument.