Duty of Care — SQE1 FLK1 Tort Law

A woman at work is handed a cereal bar by a colleague. She did not buy it. She has no contract with anyone. She bites into it, and a sharp metal fragment from a worn cutting blade at the factory breaks a tooth and cuts her mouth badly. Can she sue the manufacturer? Yes. And the reason she can is a snail.

This is Duty of Care, the first topic in Tort Law, and the first hurdle in every negligence claim. No duty, and the claim dies at step one. Before breach. Before damage. Before anything. Duty questions are extremely common in SQE1. Keep our cereal bar in mind. We come back for it.

Here is the route. The neighbour principle first, and where duty came from. Then the modern approach, Caparo, and the way Robinson changed how you use it. Then the established categories. Then professional duty, and liability for words. Then omissions. Then pure economic loss. Then psychiatric harm, primary and secondary victims. And finally, where policy shuts duty out altogether.

Start with the shape of the claim. Three elements. Duty of care: did the defendant owe the claimant a legal duty to take care? Breach: did the defendant fall below the standard of care expected? Damage: did the claimant suffer damage caused by the breach and not too remote? Today is element one.

So where did duty come from? Mrs Donoghue drank a ginger beer that contained a decomposed snail, and became seriously ill. She had a problem. She had not bought the drink. Her friend had. No contract with the manufacturer, and under the old rules, no claim. The House of Lords held the manufacturer owed her a duty anyway.

Donoghue v Stevenson, from 1932. Lord Atkin's neighbour principle is the line to carry. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. And who is your neighbour? Persons so closely and directly affected by your act that you ought reasonably to have them in contemplation. No contract needed. Duty can exist between complete strangers. Which is why our cereal bar claim works.

But foreseeability is where duty starts, not where it ends. Later cases showed that foreseeability alone does not always create a duty. The courts also weigh proximity, and whether it is fair, just, and reasonable to impose one. In 1978 a generous two-stage test held sway. It was effectively overruled in 1990. It had opened the floodgates, said the critics.

The modern test is Caparo Industries v Dickman, from 1990. The House of Lords identified three considerations. One: foreseeability of damage. Was the damage a reasonably foreseeable consequence of the defendant's conduct? Two: proximity of relationship. Is the relationship close enough? Three: is it fair, just, and reasonable to impose a duty of care?

Two of those need care. Proximity is a legal concept, not physical distance. It covers reliance, voluntary assumption of responsibility, and directness of impact. And the third limb is a policy filter. Even where damage is foreseeable and the parties are proximate, a court may still refuse a duty, for reasons like flooding the courts or conflict with legislation.

Now the part candidates keep getting wrong. In 2018 the Supreme Court said there is no single general test for the existence of a duty of care. Caparo did not lay down a tripartite test to be applied mechanically to every case. Robinson v Chief Constable of West Yorkshire. Where the facts fall within an established category, or close to one, duty is settled by precedent.

Only in genuinely novel situations does the court reason incrementally, by analogy with decided cases, weighing foreseeability, proximity, and whether a duty is fair, just, and reasonable. So do not run the three limbs at every scenario. Ask the category question first.

So what is on the list? Road users, to other road users and to pedestrians. Manufacturers, to the ultimate consumer, no contract needed. That is our cereal bar, and it is why no wider analysis is needed. Builders, to those who occupy or use what they build. Schools, to their pupils, and heightened, because children are less able to look after themselves.

Doctors, to their patients, covering diagnosis, treatment, and advice. Employers, to employees, a threefold duty: competent staff, proper equipment, and a safe system of working. And occupiers, to their visitors. One warning. That list is not closed. Where a scenario does not fit, that is when you reason by analogy and weigh the three factors.

Professionals next. A solicitor, an accountant, a surveyor, a doctor. Each is judged by the skill and care of a reasonably competent practitioner in their field. Hold yourself out as a specialist, and you are measured against a specialist.

Then the landmark on words. A bank asked a credit reference agency about the financial standing of a customer. The agency gave a favourable reference, and added a disclaimer. The bank extended credit, the customer went bust, and the bank lost money. Hedley Byrne v Heller, from 1964.

The House of Lords held that a duty of care can arise for negligent misstatements where there is a special relationship. Three ingredients. One: the maker of the statement has special knowledge or skill. Two: the recipient reasonably relies on that skill and judgement. Three: the maker knows, or ought to know, that the recipient will rely on it.

And the sting. The disclaimer negatived the duty, so no liability arose. The principle was established and the claimant still lost. A disclaimer can prevent a duty, but only if it is brought to the recipient's attention before they rely on the statement.

The thread through all of it is assumption of responsibility, express or implied. A surveyor valuing a modest house for a mortgage lender owed a duty to the buyer who relied on the report, with no contract between them. A solicitor who let a will sit on the file owed a duty to the intended beneficiary. An employer writing a reference owed a duty to the person it was about.

And the limit. In Caparo itself, accountants prepared statutory accounts. Investors bought shares relying on them, and lost. No duty. There was no assumption of responsibility to the investing public. The accounts existed so that members could control the company, not to guide investment decisions. Always ask what the statement was for.

Now omissions, and here instinct misleads. You are walking along a canal towpath. A child playing at the edge slips in. She cannot swim. You are a strong swimmer and could reach her from the bank without any real risk. You walk on, and she drowns. Tort, or no tort?

No tort. There is no general duty to act to save another from a danger you did not create. You are not legally required to rescue anyone, even where you could do it easily and safely. Negligence is about positive acts that cause harm, not about failures to act.

The policy is blunt. A duty to act would mean everyone owes everyone else help at all times. Unworkable, and a massive intrusion on personal freedom. But four exceptions matter, and this is where the marks are.

One: assumed responsibility. Take on the protection of someone voluntarily and you must carry it out with reasonable care. A doctor who starts treating a patient cannot walk away mid-treatment. Two: a special relationship. Parent and child. Prison officer and prisoner. Teacher and pupil. Three: a statutory duty to act. Four: creation of danger. Create the danger yourself and you may have to take reasonable steps to prevent harm from it.

And the leading case marks the edge. An empty cinema was repeatedly vandalised by trespassers, and the damage reached a neighbour's property. No duty. The damage was caused by third-party trespassers. The owners had not created the danger, and had not assumed responsibility for the neighbour's property.

Pure economic loss has a topic of its own later, so take the duty point now. Pure economic loss is financial loss that is not consequential on physical injury or damage to property. A house worth less because it was built with defective foundations. The house is not damaged. It was just built badly in the first place.

The general rule is that no duty arises. Defective but not dangerous, and the owner's loss is pure economic loss. The policy is floodgates, indeterminate liability, and a sense that contract law is the better home for that kind of risk, because the parties can allocate it themselves.

Then the distinction the papers love. A van reverses into a car parked outside a printing works. The car goes through the window and wrecks the press behind it. The business takes no work for the three weeks it takes to replace the press. Window, press, lost profit. Recoverable, or not?

All three. The window and the press are physical damage to the business's own property. The lost profit flows from that damage, which makes it consequential economic loss, and consequential loss is recoverable. Pure economic loss is the loss that stands alone. And its biggest exception you have already met. Negligent misstatement.

Psychiatric harm now. The courts allow it, and then control it hard, because the floodgates concern is real. Psychiatric harm is common, and it is subjective. So the law splits claimants in two. Primary victims, and secondary victims.

A primary victim is directly involved in the accident and within the zone of physical danger. No extra control mechanisms. Normal negligence rules. Take a head-on collision. One driver climbs out without a scratch, but the shock triggers a severe relapse of a stress-related illness that had been in remission for years. Primary, or secondary?

Primary. He was within the zone of physical danger at the time. A primary victim recovers for psychiatric harm with no physical injury at all, so long as physical injury was foreseeable. And it does not matter that a person of ordinary fortitude would have shaken it off.

A secondary victim is not directly involved, but suffers psychiatric harm from witnessing the event or its aftermath. A mother who sees her child killed on the road. Here the law imposes strict control mechanisms, and they come out of the Hillsborough litigation. Alcock v Chief Constable of South Yorkshire, from 1992.

Four mechanisms, and all four must be satisfied. One: a close tie of love and affection with the primary victim. Presumed for parents and children, and for spouses and civil partners. Anyone else must prove it. Two: the claimant perceived the event, or its immediate aftermath, with their own unaided senses. Three: proximity in time and space. Four: a recognised psychiatric illness caused by shock.

Ordinary grief, sorrow, or distress will not do. And watching on television does not count. In the Hillsborough claims, relatives who watched live on television were held not to be secondary victims. Television is not your own unaided senses. Make sure your claimant was actually there.

One recent tightening. The Supreme Court now requires a secondary victim to be proximate to an external, shocking accident, rather than to the consequences of a medical condition. A daughter watching her father die of a condition the hospital failed to diagnose is not proximate to a qualifying event.

Last, policy. Even where damage is foreseeable and the parties are proximate, a court may refuse a duty, and the leading case is stark. The mother of the last victim of the Yorkshire Ripper sued the police for failing to catch the killer earlier. Hill v Chief Constable of West Yorkshire, from 1989. No duty to individual members of the public in the investigation of crime.

Three reasons. Floodgates, because every victim of an unsolved crime could sue. Diversion of police resources from fighting crime to defending claims. And conflict with the police's public duty to investigate impartially. The same logic once protected local authorities exercising child protection functions, on the ground that a duty would push social workers into defensive practice.

But do not over-read that. Being a public body is not an immunity. In Robinson, officers carrying a man to a police van struck a woman waiting at a bus stop and knocked her into the road. Ordinary principles applied, and a duty was owed. Investigating crime, no duty. Physically knocking someone over, duty. Ask what the specific function was.

A word on how SQE1 tests this. You are not asked to recall case names. You get a scenario, five answers, and one instruction: pick the best. So learn the rules, and how they decide facts. The names in this episode are memory pegs, nothing more.

If you keep only three. Donoghue v Stevenson, for the neighbour principle and the death of the no-contract rule. Caparo, for foreseeability, proximity, and fair, just, and reasonable. And Robinson, because it tells you when not to reach for Caparo at all. Category first. Three limbs only if the situation is novel.

Four traps. One: always identify whether the defendant's conduct is a positive act or an omission. Drive carelessly and injure someone, that is an act, and you are liable. See someone drowning and walk on, and you have committed no tort, unless you created the danger or assumed a duty.

Two: foreseeability is not a duty. Candidates spot foreseeable harm and stop there. The courts want proximity too, and fair, just, and reasonable. And in an established category you need none of that reasoning, because precedent settles it.

Three: with any psychiatric harm question, ask primary or secondary first. If primary, normal rules apply. If secondary, run all four control mechanisms. If even one of them fails, there is no duty for the psychiatric harm.

Four: being a public body does not exclude duty on its own. Ask whether the specific function in question involves the kind of policy considerations that justify exclusion. Analyse each situation on its own facts.

Quick check. A partly built office block collapses through the contractor's negligence, trapping several workers. A news channel broadcasts live from the scene all day. Sixty miles away a woman watches for hours, knowing her husband is one of the men inside. She sees stretchers carried from the rubble, though broadcasting rules mean no casualty can be identified. Her husband dies. She is later diagnosed with post-traumatic stress disorder and a severe depressive illness.

Can she recover from the contractor? Three candidate answers. One: yes, because as his wife she is presumed to have a close tie of love and affection. Two: yes, because she has developed a recognised psychiatric illness brought on by shock. Three: no, because she did not perceive the collapse or its immediate aftermath with her own unaided senses. Pause here if you want a moment.

The answer is three. A secondary victim must perceive the shocking event, or its immediate aftermath, through their own unaided senses, and be proximate to it in time and space. Watching a live broadcast from miles away, where no individual casualty can be identified, does not satisfy that.

She fails a mechanism the law treats as essential, however strong her relationship with her husband. Why the others fail. One is right about the presumption between spouses. The claim simply fails on a different limb. Two is right that her conditions are recognised psychiatric illnesses. That is not the obstacle.

Five things to take away. One: duty is the first hurdle, and the neighbour principle means no contract is needed. Two: ask the category question first. Established category, duty by precedent. Novel situation, and only then foreseeability, proximity, and fair, just, and reasonable.

Three: no duty for omissions, unless there is assumed responsibility, a special relationship, a statutory duty, or creation of danger. Four: pure economic loss is generally out, negligent misstatement is the way back in, and loss flowing from physical damage is recoverable. Five: primary victims get the normal rules, secondary victims must satisfy every control mechanism.

And our cereal bar? Manufacturer to ultimate consumer. An established category, a duty owed, and settled since 1932. Next time, Breach of Duty.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.