3.3 - Negligence duty of care

The Gateway Question

Negligence is usually built in three main stages: duty of care, breach of duty and damage. Duty is the gateway. If the defendant did not owe the claimant a duty of care, the negligence claim fails before the court reaches breach, causation, remoteness or remedies.

For this lesson, the scope is physical injury to people and damage to property. Pure economic loss and psychiatric injury have their own stricter duty rules in later tort work, so do not import those restrictions into an ordinary physical injury scenario unless the question specifically raises them.

The duty question asks whether the law recognises a relationship in which the defendant had to take reasonable care to avoid harming this claimant. It is not the same as asking whether the defendant behaved carelessly. For example, a driver may owe a pedestrian a duty as a road user, but breach is the separate question of whether the driver fell below the standard of the reasonable driver.

Use this order in an AQA scenario:

Common confusion: students often write "a duty was breached" before proving that a duty exists. Keep the gateway question separate, then move on.

The Neighbour Principle

The starting authority is Donoghue v Stevenson. The case established that a manufacturer of a product could owe a duty to the ultimate consumer where the consumer was likely to be closely and directly affected by the manufacturer's lack of reasonable care.

Its broader legal tool is the neighbour principle. A legal "neighbour" is not simply someone nearby.

In operational terms:

1. identify the defendant's act or omission
2. identify the claimant and the type of harm
3. ask whether a person in the claimant's position was closely and directly affected
4. ask whether that harm was reasonably foreseeable if the defendant failed to take care

The threshold is reasonable foreseeability of harm to a class of persons, not precise prediction of the exact accident. If a poorly sealed drink bottle could physically injure consumers, the consumer does not need to prove that the manufacturer foresaw the exact way the defect would be discovered.

The legal consequence is that, where the neighbour principle is satisfied in an established physical injury or property damage context, the court can recognise a duty and move to breach. The principle is especially useful for explaining why negligence is not limited to contracts: the claimant may have bought the product from a retailer, but the manufacturer can still owe a duty.

Common confusion: Donoghue is not a full answer to every duty problem. It gives the foundation of foreseeability and closeness, but modern AQA answers also need to recognise established duty categories and the Caparo test for novel duty issues.

Established Duties And Robinson

For many AQA physical injury scenarios, the duty is already established by precedent or by a close analogy with precedent. Robinson v Chief Constable of West Yorkshire Police is important because it confirms that where an established duty category exists, the court should normally follow that established category rather than mechanically applying the full Caparo three-part test.

This matters in road accident questions. One road user ordinarily owes a duty of care to other road users and pedestrians because they are foreseeably and directly affected by careless driving. AQA examiner reports warn that long Caparo discussions in this kind of established road user situation can waste time. The better method is:

1. identify the established duty category, such as road user to road user or driver to pedestrian
2. explain why the claimant falls within the class foreseeably affected
3. state that the duty is recognised, so the answer can move on to breach

This does not mean duty can be merely asserted. You still need a legal framework. A strong AQA sentence would be: "Following Robinson, a court should use an established duty category where one exists; this is a standard road user situation, and it is reasonably foreseeable that careless driving may injure a pedestrian, so a duty is likely."

The threshold is low in ordinary physical injury cases between directly interacting parties. It becomes harder where the claimant is remote, the defendant did not create the risk, the harm was caused by a third party, or the situation does not fit an established category.

Common confusion: Robinson does not remove Caparo from the specification. It tells you not to overuse Caparo where the law already recognises the duty. Caparo remains important for novel or borderline duty questions.

The Caparo Three-Part Test

Caparo Industries plc v Dickman gives the three-part test used at AQA depth for deciding whether to impose a duty of care, especially where the situation is novel or not clearly covered by an established duty. The claimant must show:

The first two stages are claimant-focused: could this defendant's conduct foreseeably and directly affect this claimant? The third stage is law-focused: should this category of duty be recognised at all?

The threshold for foreseeability is not certainty. It is whether a reasonable person in the defendant's position would foresee a real risk of harm. Proximity is not only distance. Two people may be physically close without a legal relationship, and two people may be legally proximate because of direct dealings even if not standing next to each other.

The legal consequence is all-or-nothing at the duty stage. If one Caparo stage fails, no duty is imposed for that claim. If all stages are satisfied, the answer still must prove breach and damage.