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Historically, the tort of negligence recognised different ‘pockets’ of liability, with each pocket relating to a context and 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.

It is probably true that most cases call the duty an ‘imposed’ duty, but whether they in fact look for an imposed duty is not so clear. I myself believe that the duty should be an imposed duty, and criticise cases which look for a specific undertaking. In these case summaries, however, I only look to identify what was decided in the case.

Cases

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…

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