THE UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW

Law of Torts (LAW1310)

GENERAL PRINCIPLES OF NEGLIGENCE

(a)Duty of Care

________________________________________________________________

Semester 2 2019-2020
WS2/SYI
As adapted from J Cumberbatch

Readings

Required-

WVH Rogers Winfield & Jolowicz 19th ed – Chapter 5

Quinn & Elliot 12th ed -Chapters 2,4 and 5

Recommended-

Kodilinye 3rd ed- Chapter 4

Unlike other torts, negligence liability is not limited to particular kinds of interest
but can arise in a wide range of circumstances1. Negligence liability is based on
the conduct of the defendant in circumstances where a duty of care to the
claimant exists.

Requirements of the tort

There are four requirements of the tort namely:

A. a legal duty to take care to avoid harm. The Defendant owes this
duty to the claimant;
B. a breach of that duty of care by the defendant;

1
See Donoghue v Stevenson [1932] A.C 562 at 619 per Lord Macmillan ‘ the categories of negligence are
never closed.’

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C. damage to the claimant which results from the said breach ( i.e the
causal connection or causation)
D. in circumstances where such damage to the Claimant is not
unforeseeable and too remote.

 DUTY – whether the type of loss or damage suffered by this claimant in

the way in which it happened (and where it happened) is actionable;
 BREACH –whether D‟s conduct fell below the applicable standard of care;
 CAUSATION –whether the breach of duty is the immediate, proximate,
effective or operative cause of the damage;
 REMOTENESS –whether the loss or damage was of a type that was
reasonably foreseeable as likely to result from the breach of duty.

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 DUTY OF CARE

The first thing that must be established is that the Defendant owed a duty of care
in relation to Claimant and the type of damage suffered. If no duty of care exists,
then the type of loss or damage suffered by the claimant is not actionable in tort.

Originally, a duty of care was owed only in limited particular contexts. Some
courts sought to base or link liability to an underlying contractual relationship.

However, what happens where a remedy in contract is not available?

This was the situation in *Donoghue v Stevenson [1932] A.C 562 . In that case,
the original concept of duty of care was established by the enunciation of what is
known as the neighbour principle. That is the obligation to take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour.

Who is your neighbour per Lord Atkins in Donoghue v Stevenson?

„persons who are so closely and directly affected by ( the Defendant‟s ) act
that (he/she/it) ought to have them in contemplation as being so affected
when…(the Defendant)…(directs his)…mind to the acts or omissions
which are called in question‟

Therefore neighbour in this context does not mean the person who lives next
door or a person who is individually identifiable to the Defendant. Instead,
neighbour refers to person(s) who falls within a category of persons in
respect of whom it is expected that the Defendant should have foreseen
risk of harm.

Critical considerations-

- Reasonable foreseeability- (an objective test i.e whether a reasonable

person in the defendant‟s position would have foreseen the risk of
damage. This test is not concerned with what the defendant actually
foresaw)
- Sufficient proximity -Proximity refers to the relationship between the
parties, this may be physical (e.g in accident cases), circumstantial
(e.g in professional negligence matters) , casual or assumed ( may
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 arise by virtue the closeness or directness of the relationship between
the parties or activity which caused damage to the Claimant. Such
scenarios may either impose a responsibility or result in reliance by
one party on the other to take care). It appears that proximity
comprises of elements of foreseeability and judicial policy

Upon the application of Donoghue v Stevenson, a duty of care would be held to

exist as follows:

(i) In those situations where the court had already held a duty of care to
exist (doctrine of precedent); and

(ii) Its existence in novel situations would depend on whether policy

considerations demanded the creation of a duty of care.

The concept was then temporarily widened in Anns v Merton London

Borough [1978] A.C 728, then there was a retreat from this widening
in Murphy v Brentwood District Council [1990] W.L.R 414.

In Anns v Merton LBC [1978] AC 728 Lord Wilberforce proposed that a prima
facie duty of care should be owed generally where the two-part Donoghue test
was satisfied (Stage 1) and where there were no policy considerations that
precluded it. (Stage 2) 
“...It is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit, the scope of the
duty or the class of person or the damages (sic) to which a breach of it may
give rise...”

The result of Anns v Merton was that if there were no policy considerations
against establishing a duty of care, then a duty could be imposed. This led to an
expansion in negligence liability since the first part of the test was easily met.

As a further consequence, tort (negligence) duties began to encroach into areas

previously covered by a requirement for there to be the existence of a contractual
relation in order for liability to exist.

See also Austin v AG of Barbados (1986) 21 Barb. LR 259 –K70

Reversal of position

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In *Murphy v Brentwood DC [1991] 1 AC 398, the House of Lords overruled
Anns v Merton and preferred the approach of the Australia High Court in
Sutherland Shire Council v Heyman (1985) 60 A.L. R 1, where the Court
stated as follows:

It is preferable, in my view, that the law should develop novel

categories of negligence incrementally and by analogy with
established categories, rather than by a massive extension of
a prima facie duty of care, restrained only by indefinable
„considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed‟.

This incremental approach meant that the establishment of new duties of care
would be more gradual and accepted by the Courts with reference to precedent
and analogy to previous cases.

Also see Yuen Kun Yeu v A.G of Hong Kong [1988] AC 175 (PC)

Did Murphy settle the law?

See *Caparo Industries plc. v Dickman [1990] 1 All ER 568 which established
a three stage test for determining whether a notional duty of care 2 exists. This
was the requirement that “ it is material to take into account whether it is [fair],
just and reasonable” that a duty of care should be imposed on a defendant in a
particular circumstance.

The stages under Caparo which must all coincide for a duty to arise are as
follows;

(i) It must be reasonably foreseeable3 that the defendant‟s conduct will

more likely than not cause injury, loss or damage to the claimant; (See

2
Notional duty of care refers to obligations to a general class of relationship and damage. The various
discussed in this worksheet under the subhead duty of care, set out the approaches used by Courts to
determine the scope and existence of various duties of care. Once a notional duty is established, a
Claimant has demonstrated that a factual duty exists that is that the Claimant comes within the scope of
that duty .
3

5
 Bolton v Stone [1951] AC 850;
Hilder v Associated Portland
Cement [1961] 1WLR 1434; Mowser v De Nobriga (1969) 15 WIR
147 (K68), Strickland v White & Barbados Rally Club (HC
(9/11/2012) – [barbadoslawcourts.gov.bb] );

(ii) There must be a sufficient element of neighbourhood or proximity

between the parties; (See Bourhill v Young [1943] AC 92;Caparo
Industries plc. v Dickman [1990] 1 All ER 568; Watson v British
Boxing Board of Control [2001] 1 WLR 1256;Goodwill v British
Pregnancy Advisory Service [1996] 1WLR 1397;
*Hill v Chief
Constable of West Yorkshire [1988] 2 WLR 1049); and

(iii) The court must consider it fair, just and reasonable4 to impose a duty
of care on the defendant... (See Mc Farlane v Tayside HB [1999] 4
All ER 96;
Mitchell v Glasgow CC [2009] 2 WLR 481;*Hill v CC of
West Yorkshire [1988] 2 WLR 1049; Commissioners of Customs &
Excise v Barclays Bank plc. [2006] 4 All ER 256 ;*Everett v
Comojo (UK) Ltd. [2012] 1 WLR 150 –K74; * Marc, Rich & Co AG v
Bishop Rock Marine Co Ltd. (The Nicholas H) [1996] AC 211 –
K73)

Case summary

Marc, Rich & Co AG v Bishop Rock Marine Co Ltd. (The Nicholas H) [1996]
AC 211 – K73 -Ship‟s surveyor, D3, advised that ship owned by DI and chartered
to D2 was seaworthy after temporary repairs. Ship subsequently sank with $
6million in cargo belonging to C. C claimed damages in negligence against D3.

Held: All three elements had to be present for there to be a duty of care owed.
Even assuming foreseeability, it would not be fair just and reasonable to impose
a duty since the damage suffered was indirect (no proximity), there was no
reliance on D3 by C, D3 was a public body acting in the public interest, and the
existence of risk allocation by the Hague Rules between D1 and C militated
against this.

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There are multiple considerations in this context. Among these are;
(i) There is a greater likelihood of liability for faulty conduct rather than the imposition of strict liability;
(ii) Physical damage more readily compensable than economic loss;
(iii) No imposition of a duty of care if this would unduly restrict the discretion of a public authority

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Has there been a significant change in the law since Anns?

Recent developments do they change the Caparo position?

See recent decision of UK Supreme Court in Robinson v Chief Constable of

West Yorkshire [2018] UKSC 4,

There Lord Reed, explained that the Caparo decision was misunderstood and
that the „ whole point‟ of Caparo was „to repudiate the idea that there is a single
test which can be applied in all cases in order to determine whether a duty of
care exists, and instead to adopt an approach based, in the manner
characteristic of the common law, on precedent, and on the development of the
law incrementally and by analogy with established authorities.‟

Holding in Robinson

„It is mistaken to believe that the test set out in Caparo Industries Plc v
Dickman[19990] AC 605 applies to all claims in the modern law of negligence
and that the court will only impose a duty of care where it considers it fair, just
and reasonable to do so. The whole point of the judgment in Caparo is to
repudiate the idea that there is a single test which can be applied to cases to
determine whether a duty of care exists. Instead, common law principles,
precedent and established authorities should be applied.‟

The correct approach as per Robinson is as follows:

„In the ordinary run of cases, courts should consider what had been
decided previously and follow the precedents (unless it was
necessary to consider whether the precedents should be departed
from). In cases where the question whether a duty of care arose had
not previously been decided, the courts would consider the closest
analogies in the existing law, with a view to maintaining the
coherence of the law and the avoidance of inappropriate distinctions.
The courts also had to exercise judgment when deciding whether a
duty of care should be recognised in a novel type of case. It was the
exercise of judgment in those circumstances that involved
consideration of what was 'fair, just and reasonable'. The courts
would weigh up the reasons for and against imposing liability, in

7
 order to decide whether the existence of a duty of care would be just
and reasonable.‟

Robinson has been applied by the Supreme Court and the lower Courts in other
cases in 2018 and 2019 including:

N and another v Poole Borough Council (AIRE Centre and others

intervening) [2019] 2 WLR 1478 per Lord Reed at paras 63 and 64

63 „Most recently, the decision of this court in 2018 in the case

of Robinson v Chief Constable of West Yorkshire Police[2018] AC 736
drew together several strands in the previous case law…

64Robinson did not lay down any new principle of law, but three
matters in particular were clarified. First, the decision explained …,
that Caparo did not impose a universal tripartite test for the existence
of a duty of care, but recommended an incremental approach to novel
situations, based on the use of established categories of liability as
guided, by analogy, to the existence and scope of a duty of care in
cases which fall outside them. The question whether the imposition
of a duty of care would be fair, just and reasonable forms part of
the assessment of whether such an incremental step ought to be
taken. It follows that, in the ordinary run of cases, courts should apply
established principles of law, rather than basing their decisions on their
assessment of the requirements of public policy. Secondly, the
decision reaffirmed the significance of the distinction between harming
the claimant and failing to protect the claimant from harm (including
harm caused by third parties)… Thirdly, the decision confirmed,
following … numerous older authorities, that public authorities are
generally subject to the same general principles of the law of
negligence as private individuals and bodies, except to the extent that
legislation requires a departure from those principles. That is the basic
premise of the consequent framework for determining the existence or
non-existence of a duty of care on the part of a public authority.‟

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James-Bowen and others v Commissioner of Police of the Metropolis
[2018] 1 WLR 4021 at paras 22 and 23

22. „In Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR
595 this court recently held, with regard to [ the question as to whether the
imposition of a duty of care was fair, just and reasonable as indicated in
Caparo]… that it is normally only in a novel type of case, where
established principles do not provide an answer, that the courts need to go
beyond those principles in order to decide whether a duty of care should
be recognised.’

Should a duty of care extend to a new situation?

23. „As Lord Reed JSC explained in Robinson, in determining whether

such a duty should be recognised the law will proceed incrementally and
by analogy with previous decisions.‟

The authors of Elliot & Quinn’s Tort Law at page 25 address the question of the
relevance of Caparo following the decision in Robinson and state as follows
“[t]he decision in Robinson does not mean that the Caparo test is entirely done
away with. The Supreme Court suggested that the Caparo test would still be
relevant in cases where the courts were being „asked to depart from previous
authorities‟ or „consider an extension to the law of negligence‟

Question:
1.The law on duty of care is unclear and the Courts rely on policy to establish
duties of care at their whim and fancy. Critically discuss

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POLICY AND THE IMPOSITION OF A DUTY OF CARE .

The circumstances where the Courts have imposed a duty of care for policy
reasons include:

- psychiatric injury
- pure economic loss

1. Psychiatric injury

A duty of care is owed to those foreseeably and directly involved in the horrific
event caused by the defendant's negligence. The liability which arose in this
regard was historically classified as that arising from “nervous shock”.

In order for the Claimant to recover damages he or she must have suffered
physical or psychiatric injury. Mere shock by itself is not actionable, such shock
must have induced or brought on an injury.

Examples:

- a woman who had a miscarriage as a result of witnessing the

aftermath of a terrible road accident Bourhill v Young
- a man who was involved in an minor accident which was caused by
the Defendant . However, the shock from the accident resulted in the
recurrence and worsening of the disease myalgic encephalomyelitis
(Page v Smith )
- an illness in which a shocking event causes symptoms including:
difficulty sleeping, clinical depression, personality changes and post-
traumatic stress disorder

Typical Claimants include (see generally White v Chief Constable of the South
Yorkshire Police ) :

- Those suffering shock through involuntary participation in the event

itself but suffer no physical injury;
- The Claimant who is a primary victim of the event
- Rescuers (in some circumstances)

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 - Witnesses to horrific events who were not in direct physical danger.
Note however, that policy considerations impose requirements
additional to foreseeability for these types Claimants

„In other cases, however, the claimant will only recover damages if the nature of
the event is such that a person of ordinary fortitude may foreseeably suffer
shock.‟ See Halsbury's Laws of England Negligence (Volume 78 (2018) ) para 11

See generally:

Bourhill v Young [1943] AC 92

McLoughlin v O'Brian [1983] 1 AC 410.

White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

Page v Smith [1996] AC 155,

Dulieu v White & Sons [1901] 2 KB 669

Cullin v London Fire & Civil Defence Authority [1999] P.I.Q.R P314

Two categories of victims of psychiatric injury

A. Primary victims

The primary victim is one who is put at risk of physical injury by the negligence of
the defendant. The primary victim is immediately or directly involved in the
incident and within the range of foreseeable physical injury. If the primary victim
suffers psychiatric illness, he or she may recover damages once it is reasonably
foreseeable that the victim would suffer some personal injury, whether physical
or otherwise. The defendant must also take the claimant as she has found her 5.

Page v Smith [1995] 2 All ER 736- this is the case in which the law relating to
primary victims was established

5
See Elliot & Quinn at page 109 – ‘So long as a bystander of normal fortitude would be likely to suffer
psychiatric injury, it does not matter that that psychiatric injury is made more serious by some
characteristic personal to the claimant; but if the psychiatric injury would not have occurred at all to
someone without the claimant’s particular susceptibility, there is no claim.’

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 C.f. McFarlane v Wilkinson [1997] 2 Lloyd‟s Rep. 250- establishes that a
Claimant‟s fear for her own physical safety which results in psychiatric injury
must be reasonable. Here, the Claimant who was as on a support vessel
approx.100 metres from an oil rig which caught fire, was unable to recover for
nervous shock as he was free to take shelter if he wished and, hence, was not
endangered.

In Alcock Lord Oliver included rescuers in the category of primary victims and
noted as follows at pages 407 and 409:

Cases “… in which the Claimant was involved, either mediately or

immediately as a participant…”

The duty was owed “ not only to those threatened… by..[the Defendant‟s]
careless acts but also to those who, as a result, are induced to go to the
rescue and suffer injury in so doing.”

Note however, that the authors of Halsbury‟s Law of England cite White for the
principle that „a rescuer who seeks to be compensated for psychiatric harm must
satisfy the threshold requirement that he objectively exposed himself to personal
danger or reasonably believed that he was doing so.‟

B. Secondary victims

The secondary victim is one who suffers psychiatric injury as a result of

witnessing the death or injury, or its immediate aftermath, of another person.
Secondary victims will only be successful if it established that a bystander
of reasonable fortitude would be likely to suffer psychiatric injury. If the claimant
is unusually susceptible to shock, he or she will not succeed as reasonable
foreseeability cannot be established.

Recovery depends on the principles enunciated in

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 – secondary victim

per Lord Oliver at p 407- “ was no more than the passive and unwilling witness
of injury caused to other.”

In addition to satisfying reasonable foreseeability a secondary victim must

also satisfy the following tests:

(i) Close ties of love and affection with the person killed, injured or
imperiled; (note that the secondary victim must not only establish the
type of relationship but demonstrate that the he and the victim were in
fact close);

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 (ii) Proximity both in time and space to the accident or its immediate
aftermath;

(iii) That the psychiatric injury was caused by “a sudden violent

appreciation of a horrifying event…” ( i.e the Claimant must have
perceived event through his/her senses Boardman v
Sanderson [1964] 1 WLR 1317, rather than hearing about it from a
third person);
(iv) The illness must have been induced by the event

See generally:
McLoughlin v O’Brien [1982] 2 All ER 298
Frost (White) v Chief Constable of South Yorkshire [1999] 1 All ER 1
Greatorex v Greatorex [2000] 1 WLR 1470
Attia v British Gas plc. [1988] QB 304
Wilchombe v Princess Margaret Hospital (2002, The Bahamas) K124-5
Alleyne v AG of Barbados (2005, Barbados) K125

Questions:
2. A defendant is usually liable only for the type of damage he could have
reasonably foreseen as likely to result from the negligent act. Is physical
injury of the same type as psychiatric injury?

3. Is the requirement of close ties of love and affection limited only to parent/
child; spouses and the closet family members? Or does it include friends,
by-standers?

4. Can a claimant recover for psychiatric injury in cases where there is

damage to property?

5. Anil is walking along the street when a car driven by someone who is
drunk veers towards him; he narrowly avoids injury by throwing himself out
of the way, but the driver is killed. Anil later develops post-traumatic stress
disorder. Can he claim for psychiatric injury? 6 If your answer is yes,
explain whether Anil can claim as a primary or secondary victim.

6
Question 4.5 from Elliot & Quinn

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2. Pure economic loss

The Courts have been reluctant to compensate for pure economic loss in tort,
and historically only provided a contractual remedy. One reason for this related to
the differing objectives of remedies under the law of tort and the law of contract.
In addition, reluctance stemmed from a concern that to grant such a remedy
would result in an opening up of the “floodgates” with the potential that economic
losses could be significant and incalculable.

Pure economic loss may be defined as financial loss suffered by the claimant
unconnected to any physical injury to the Claimant‟s person or property. Loss is
entirely relational or suffered because of damage to another‟s person or property.
It is essentially a claim for loss of expected benefits that is usually remedied in
contract.

See: Spartan Steel & Alloys Ltd. v Martin & Co. [1973] QB 27

Q What damage did the defendant cause to the claimant‟s property? Was not all
the loss suffered purely economic? What is the element of principle or policy that
precludes recovery for pure economic loss?

See also:

The Mineral Transporter [1986] AC 1

Murphy v Brentwood DC [1990] 2 All ER 908

Muirhead v Industrial Tank Specialties [1986] QB 507

C.f. Caltex Oil Ltd. v The Dredge Willemstad 91976-77) 136 CLR 529

Canadian National Ry. V Norsk Pacific (1992) 91 DLR (4 th) 289

Recovery for pure economic loss may be available in circumstances of negligent

misstatement or advice, negligent provision or performance of services. It is not
available for defective products. Pure economic loss in such circumstances is
generally recoverable where the defendant may be said to have voluntarily
assumed responsibility to the claimant to use reasonable care in its undertaking.
The test is objective.

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Locus classicus: Hedley Byrne & Co. Ltd. v Heller & Partners [1984] AC 465

Basis of liability:

(i) reasonable reliance by the claimant on D‟s skill;

(ii) actual or constructive knowledge by D that claimant is so relying;

(iii) absence of reasonable care and skill by D

In Hedley Byrne, the House of Lords laid down a number of requirements that
Claimants must satisfy to establish a duty of care. There must be:

 a „special relationship‟ between the parties.

A special relationship arises in a business context. Lord Reid described it as

arising where it „is plain that the party seeking information or advice was trusting
the other to exercise such a degree of care as the circumstances required, where
it was reasonable for him to do that, and where the other gave the information or
advice when he knew or ought to have known that the enquirer was relying on
him‟

 an assumption of responsibility by the party giving the advice or providing

the service.

An objective test is used to determine whether responsibly was assumed by the

Defendant. The Courts have observed that merely issuing disclaimers will not
always exclude liability. The impact of disclaimers is fact sensitive ( Contrast
Omega Trust Co Ltd v Wright Son & Pepper (No 1) [1997] PNLR 424 and
Smith v Eric S Bush [1990] 1 AC 831 )

 reliance by the party receiving the advice

Under this requirement, the Courts look at the purpose for such the advice was
provided, consider whether the Defendant knew or could have reasonably
foreseen that the advice would be relied on by advisee and/or a by the third
party or a specific class of persons.

 it must be reasonable for the Claimant to have relied on the advice.

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Interestingly the existence of a contact or a contractual context( i.e a chain
contracts through which parties are indirectly linked e.g a project involving client,
developer and subcontractors) may support the imposition of a tortious duty.
However, the absence of a contractual relationship is not fatal. (*See Junior
Books Ltd v Vietchi [1983] 1 AC 520 –Recovery of pure economic loss
permitted even where no contractual nexus between the parties)

In determining reasonableness, the Court will take into account the relationship
between the parties and the context within which the advice was given. For
example:

- was the advice given in an informal, social or business context; or

- are there any specific circumstances in the case which lend to the
conclusion that the Claimant should have obtained independent advice
or should not have relied on the advice (e.g draft documents, or advice
with disclaimers)

Q How does this relationship differ from a contractual one?

See also:

James McNaughton Paper Group v Hicks, Anderson & Co [1991] 2 QB 113

Royal Bank Trust Co (Trinidad) Ltd. v Pampellone (1986) 35 WIR 392

Caparo Industries plc v Dickman [1990] 2 AC 605

Calvert v William Hill Credit Ltd. [2009] 2 WLR 1065

White v Jones [1995] 1 All ER 691

Maharaj v Republic Bank Ltd. (1987) [K121-2]

Question:
6. Critically discuss recoverability for pure economic loss as a result of
negligence.

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