Introduction to the Tort of Negligence - Duty of Care
Negligence has been defined as: “The breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant.” (L.B. Curzon, Dictionary of Law).
A claimant (formerly known as, plaintiff) must prove three things in order to succeed in an action for negligence: a duty of care, breach of that duty and causation.
A duty of care was originally established by applying Lord Atkin’s “Neighbour” Test from Donoghue v Stevenson (the dead snail in a bottle of ginger beer case). The modern three-stage test was laid down by the House of Lords in Caparo Industries v Dickman. The court must now consider:
(A) Whether the consequences of the defendant’s act were reasonably foreseeable.
For example, damage or harm was held to be reasonably foreseeable in: Kent v Griffiths and Jolley v Sutton LBC.
However, it was not foreseeable that the claimant would suffer harm or damage in: Bourhill v Young and Topp v London Country Bus.
(B) Whether there is a relationship of proximity between the parties, ie a legal relationship or physical closeness.
For example, there was proximity in Donoghue v Stevenson and also in Home Office v Dorset Yacht Club.
However, there was no proximity in Caparo v Dickman.
For the police, see Osman v Ferguson (which also refers to Hill v Chief Constable of W. Yorkshire) on proximity between the police and members of the public.
(C) Whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty.
It was held not to be fair, just and reasonable to impose a duty on the police in Hill v Chief Constable of W. Yorkshire.
Note that in Kinsella v Chief Constable of Nottinghamshire, it was stated that the general rule in Hill did not provide blanket immunity in all cases, but in each case a balancing exercise had to be carried out.
However, a duty was imposed on the fire brigade in Capital v Hampshire County Council.