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The tort of negligence does not impose liability whenever someone fails to take reasonable care. The claimant must show that the the defendant is ‘responsible’ for their loss, primarily by showing that the defendant owed them a ‘duty of care’.

The ‘duty of care’ cases ask two different questions: firstly, whether the context is appropriate for the tort of negligence; and secondly whether in fact there was a duty owed. The former can be called the notional duty. The law defines certain rules which determine as a matter of law whether a ‘duty’ could be owed. In this sense, the duty acts as a control mechanism for the tort of negligence. The second question asks whether a duty is in fact owed and involves an application of the defined rules or tests.

It is easier to understand the duty of care cases by distinguishing when the Court is discussing the notional duty and the factual duty. In some cases, the Judges seek to answer both of these questions during their judgement.

Categories of ‘duty of care’ cases

The first set of cases consider the theory of the ‘duty of care’ and attempt to identify a principles test. The following sets of cases each look at how the test or tests are applied in specific, troublesome contexts.

Cases

Theory of the duty of care

Historically, the tort of negligence recognised different ‘pockets’ of liability, with each pocket relating to a specific duty. There were no underlying principles of liability. The law has moved away from the pockets approach, and now takes a principled approach which links these cases through the concept of the ‘duty of care’.

An important issue which these cases raise is whether the duty of care is imposed or assumed. This impacts which factors the Court considers when making its decision: if the duty is assumed, the Court will look for some kind of assumption by the relevant party; whereas, if the duty is imposed there will be more emphasis on the wider contextual factors and policy behind the law.

Donoghue v Stevenson [1932]
The birth of the tort of negligence. This case began the shift from pockets of liability to a general duty to take reasonable care…

Hedley Byrne v Heller [1964]
This case introduced the ‘assumption of responsibility’ as a test for the duty of care…

Anns v Merton LBC [1978]
The House of Lords confirmed the shift to a principled approach to the duty of care Moreover, Lord Wilberforce famously outlined his two-stage test for a duty of care: (1) proximity, and (2) policy.

Caparo Industries plc v Dickman [1995]
In Caparo, the House of Lords endorsed Lord Bridge’s three-stage approach to the duty of care: (1) foreseeability of harm, (2) proximity between the claimant and defendant, and (3) policy.

Henderson v Merrett Syndicates [1995]
There may be concurrent liability in contract and the tort of negligence. A claimant is entitled to pursue the remedy which is most advantageous to them. However, the tort of negligence is subject to any contrary intention between the parties.

Robinson v Chief Constable of West Yorkshire [2018]
Lord Bridge did no create a tripartite test in Caparo Industries plc v Dickman. Instead, he identified a set of factors which indicate whether a duty of care is owed. These factors should only be considered in novel cases.


Pure economic loss

The Courts Have struggled with imposing a duty of care for pure economic loss.

Pure economic loss is strictly financial loss. In most cases, it is where the thing conferred (goods or services) is not worth as much as you paid for it.

General rule

Spartan Steel & Alloys Ltd v Martin & Co
The general rule in English Law is that a claimant is unable to recover damages for pure economic loss.

Assumption of responsibility

Hedley Byrne v Heller [1964]
This case introduced the ‘assumption of responsibility’ as a test for the duty of care.

Henderson v Merrett Syndicates [1995]
Application of the assumption of responsibility test, and analysis of how this duty is affected by the various contracts between different parties.

White v Jones [1995]
Applying the assumption of responsibility test, the Court imposed on a solicitor a duty to take reasonable care in favour of the intended beneficiaries of a will.

Steel v NRAM [2018]
Recent Supreme Court confirmation that the primary test for deciding whether a defendant owes a duty of care to protect another from pure economic loss is the assumption of responsibility test.

Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] [2018]
Application of the assumption of responsibility test where the claim is brought by an undisclosed principal against a negligent bank.


Defective property cases

Cases involving defective properties have proved particularly contentious

Anns v Merton LBC [1978]
The defendant Council was held to owe a duty to take reasonable care when reviewing the foundations of buildings under construction. They were held liable for the ‘inherent defect’ of the property itself.

D&F Estates v Church Commissioners of England [1989]
The builder of a property generally only owes a duty in the tort of negligence to future occupants or owners to take reasonable care not to cause damage to persons or property, not pure economic loss.

Murphy v Brentwood DC [1991]
Overturning Anns v Merton LBC, a local authority does not owe the future owners of a building a duty to take reasonable care to avoid causing them pure economic loss.

Professionals cases

Robinson v PE Jones [2011]
The appropriate test for a duty of care in the context of professionals (where the loss is pure economic loss) is the assumption of responsibility test. This test is not satisfied even where the claimant owners specifically request a builder to perform specific services.

Effect of a contract

A contract can either exclude a duty of care, or show there has not been an assumption of responsibility.

Greenway v Johnson Matthey plc [2018]
A bank does not owe an undisclosed principal a duty to take reasonable care when giving a credit reference.

Defective products

The manufacturer of a product owes to consumers a duty to take reasonable care that the product is free from defects.

Parliament has since passed the Consumer Protection Act 1987, which imposes strict liability for harm caused by defective products. Where a claimant is able to rely on the statute, there is no longer a need to rely on the tort of negligence. It is only in cases where the claim falls outside liability under the statute that a person will need to rely on the tort of negligence.

Donoghue v Stevenson [1932]
The birth of the tort of negligence. This case began the shift from pockets of liability to a general duty to take reasonable care.


Scope of the duty

The Courts have struggled where the claimant’s loss has been made larger by another, unrelated event. One way the Court’s have dealt with this problem is by defining the scope of the duty. The Court’s have said that the duty must be linked to and in respect of the kind of loss suffered.

SAAMCO [1997]
Lord Hoffmann introduced the concept of the ‘scope of the duty’: the claimant must show the defendant owed a duty of care in respect of the loss suffered.

BPE Solicitors v Hughes-Holland [1997]
In BPE Solicitors v Hughes-Holland, Lord Sumption reviewed the ‘scope of the duty’ principle as outlined by Lord Hoffmann in SAAMCO. He concluded the principle was (1) separate to causation and …

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