Negligence - Novel duties of care (Donoghue v Stevenson and ...

Learning Outcomes

This article explains how English law determines whether a duty of care exists in new negligence scenarios, focusing on the neighbour principle from Donoghue v Stevenson and the Caparo three-stage test. It examines the requirements of foreseeability, proximity, and the fair, just and reasonable test in novel duty situations and analyses the role of policy in limiting liability. It distinguishes between duties arising from positive acts and alleged duties based on omissions, outlines the incremental and by analogy approach endorsed in Caparo, and reviews leading authorities (including Robinson v Chief Constable of West Yorkshire Police) to clarify when Caparo should and should not be used.

SQE1 Syllabus

For SQE1, you are required to understand how the courts establish a duty of care in negligence, especially in situations where there is no established precedent, with a focus on the following syllabus points:

• the neighbour principle from Donoghue v Stevenson and its application to duty of care
• the Caparo three-stage test: foreseeability, proximity, and fair, just and reasonable
• development of novel duties incrementally and by analogy with existing categories
• the effect of Robinson v Chief Constable of West Yorkshire Police on the use of Caparo in non-novel cases
• how policy factors influence the imposition of new duties of care
• the distinction between established and novel duty situations
• how to apply these principles to factual scenarios in SQE1-style questions, including cases involving omissions and third-party acts

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the three requirements of the Caparo test for establishing a duty of care in a novel negligence situation?
2. What is the neighbour principle, and which case established it?
3. In what circumstances will the courts refuse to impose a duty of care in a new situation, even if harm is foreseeable?
4. True or false? If a claimant falls within an established duty situation, the Caparo test must still be applied.

Introduction

Negligence is the most frequently examined tort in SQE1. The first step in any negligence claim is to establish that the defendant owed the claimant a duty of care. In many situations, the existence of a duty is well established (such as between road users or doctor and patient). However, when a claim arises in a new context, the courts must decide whether to recognise a novel duty of care. This article explains how the courts approach this question, focusing on the neighbour principle from Donoghue v Stevenson and the Caparo three-stage test.

Modern authority also stresses that Caparo is not a universal formula to be rolled out in every negligence case. The Supreme Court in Robinson v Chief Constable of West Yorkshire Police [2018] confirmed that when you are dealing with an already established category of duty, or with liability arising from a defendant’s positive acts that injure the claimant, the court does not default to Caparo; it applies orthodox negligence principles within the existing framework. Caparo is reserved for genuinely novel categories where there is no sufficiently analogous duty.

Key Term: duty of care
A legal obligation requiring a person to take reasonable care to avoid causing foreseeable harm to others.

Established and Novel Duties of Care

English law distinguishes between established duty situations and novel duty situations.

• Established duty situations are relationships where the courts have already recognised a duty of care exists (e.g., driver to pedestrian, employer to employee, manufacturer to consumer, doctor to patient).
• Novel duty situations arise when the courts are asked to decide for the first time whether a duty of care should be imposed in a new context. In such cases the court generally proceeds incrementally and by analogy with established duties before turning to the Caparo test if no analogue can be found.

The law also distinguishes between duties regarding positive acts (where a defendant’s conduct directly injures the claimant) and alleged duties based on omissions (a failure to act, or a failure to confer a benefit). As a rule, the law is cautious about imposing duties based on omissions unless there is a recognised exception (such as assumption of responsibility, control over the source of danger, or a special relationship).

The Neighbour Principle: Donoghue v Stevenson

The modern law of negligence began with Donoghue v Stevenson [1932] AC 562. In this case, Mrs Donoghue became ill after drinking ginger beer containing a decomposed snail. She sued the manufacturer, even though she had no contract with them.

Lord Atkin set out the neighbour principle:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

Key Term: neighbour principle
The idea that a person owes a duty of care to those who are so closely and directly affected by their actions that they ought reasonably to have them in contemplation.

This principle introduced the concepts of foreseeability and proximity as the basis for imposing a duty of care beyond contractual relationships. The case also contains the “narrow rule” applicable to manufacturers and consumers: manufacturers must take reasonable care to prevent products leaving them in a condition likely to cause injury to ultimate users.

Key Term: foreseeability
The ability to predict that one's actions may cause harm to another person in the circumstances.

Key Term: proximity
The closeness of the relationship (not just physical) between the claimant and defendant, making it fair to impose a duty of care.

The neighbour principle is deliberately open-textured—“the categories of negligence are never closed”—so courts may recognise new duties where appropriate, but they do so with caution and, today, incrementally.

The Caparo Three-Stage Test

While the neighbour principle was a major step forward, the courts needed a more structured approach for new situations. This was provided by Caparo Industries plc v Dickman [1990] 2 AC 605.

The Caparo test requires three elements to be satisfied before a duty of care will be imposed in a novel situation:

1. Foreseeability of harm – Was it reasonably foreseeable that the defendant’s conduct could cause harm to the claimant?
2. Proximity of relationship – Was there a sufficiently close relationship between the claimant and defendant?
3. Fair, just and reasonable – Is it fair, just and reasonable to impose a duty of care in the circumstances?

Key Term: Caparo test
The three-stage approach for establishing a duty of care in novel negligence cases: foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.

Caparo also endorsed a second route to duty: development “incrementally and by analogy” with existing categories. Where a close analogue exists, the court will prefer that route over creating a broad new category of duty.

Key Term: incremental approach
The principle that the law on duty of care should develop step by step and by analogy with established duties, rather than by creating wide new categories.

Key Term: fair, just and reasonable
A policy-sensitive judgment asking whether imposing a duty would be appropriate given wider considerations (floodgates, defensive practices, statutory schemes, and the proper role of courts).

Applying the Caparo Test

The Caparo test is only used where there is no established duty situation. If the relationship is already recognised by the courts, there is no need to apply Caparo.

• Foreseeability: Would a reasonable person in the defendant’s position have foreseen that their actions could cause harm to the claimant? Foreseeability alone is not enough; it filters out remote claims but does not determine duty by itself.
• Proximity: Is there a close and direct relationship between the parties? Proximity focuses on whether the claimant is part of a determinate class whom the defendant ought to have in mind, not the world at large.
• Fair, just and reasonable: Are there policy reasons that militate against imposing a duty? Courts consider avoiding indeterminate liability, the risk of defensive practices, statutory frameworks and remedies, and whether the alleged duty would require courts to supervise or re-allocate public resources.

Caparo is not a universal test. The Supreme Court in Robinson clarified that general negligence principles govern established categories and liability for positive acts; Caparo is for genuinely novel situations. For example, a police officer who injures a pedestrian while making an arrest owes the same duty as any other road user—there is no need to apply Caparo (Robinson).

Omissions and third-party acts: how Caparo interacts with special rules

• Omissions: The common law generally does not impose a duty to prevent harm caused by failure to act, absent special circumstances. In Stovin v Wise [1996] AC 923 a local authority’s failure to exercise a statutory power to remove a road hazard did not give rise to a duty at common law. Exceptions include:

  • Control over a source of danger or over the claimant (e.g., Dorset Yacht [1970] where borstal officers had control over young offenders)
  • Assumption of responsibility (e.g., Barrett v Ministry of Defence [1995] where responsibility was assumed for a vulnerable person’s safety)
  • Creating or adopting a risk (e.g., Goldman v Hargrave [1967] where a landowner who failed to extinguish a fire he had adopted was liable)

• Acts of third parties: There is no general duty to prevent harm caused by third parties. Smith v Littlewoods [1987] sets out the key exceptions, many of which parallel the omissions exceptions. A duty may arise where the defendant:

  • has a special relationship with the claimant
  • has a special relationship with the third party (e.g., position of authority or control, as in Dorset Yacht)
  • creates a source of danger, and interference by third parties is reasonably foreseeable
  • fails to take steps to abate a known danger created by third parties

In cases about criminal acts of third parties, courts are cautious. For example, the hotel owner in Ala’Najjar v Cumberland Hotel [2019] was not under a general duty to prevent an assault by third parties. In Mitchell v Glasgow City Council [2009] the House of Lords rejected a duty on a council to warn a tenant about another tenant’s violent propensities on the fair, just and reasonable limb, absent assumption of responsibility or control.

Worked Example 1.1

A social media company launches a new app. Due to a coding error, users’ private data is leaked online. A user sues the company for distress and financial loss.

Question: Should the court impose a duty of care on the company to the user?

Answer:
The court would apply the Caparo test. Harm from a data breach is foreseeable. There is proximity because the user provided data to the company. It is likely fair, just and reasonable to impose a duty, as companies are expected to protect user data. A duty of care would probably be recognised.

Worked Example 1.2

A local council fails to grit a rarely used rural road during icy weather. A driver skids and is injured. There is no established duty for councils to grit every road.

Question: Will the court impose a duty of care?

Answer:
The court would apply the Caparo test. Harm is foreseeable, but proximity may be weak if the road is rarely used and the alleged duty is to confer a benefit. Policy reasons (such as limited resources, statutory frameworks, and the risk of opening the floodgates to claims) may mean it is not fair, just and reasonable to impose a duty. The claim may fail on the third limb.

Worked Example 1.3

Police officers are arresting a suspect on a busy street. During the arrest, an officer backs into a passer-by, causing injury. The claimant sues the police force.

Question: Is Caparo the right test, and does a duty exist?

Answer:
Caparo is not the right test. This is not a novel situation; it involves injury caused by a positive act. Under Robinson, the police owe the ordinary duty of care applicable to those who may foreseeably injure others through their acts. Foreseeability and proximity are clear, and no policy reason negates duty in these circumstances. A duty exists.

Worked Example 1.4

Investors rely on audited accounts of a company and suffer loss when the accounts turn out to be inaccurate. They sue the auditors for negligence.

Question: Will a duty be found?

Answer:
Applying Caparo, although loss to investors is foreseeable, proximity is lacking because the auditors’ duty is owed primarily to the company, not to indeterminate classes of potential investors. On the fair, just and reasonable limb, imposing a duty to investors at large risks indeterminate liability. A duty is unlikely to be recognised (as in Caparo itself).

Worked Example 1.5

A local authority is aware that a tenant has threatened violence against a neighbour. The authority writes to the tenant about eviction. Shortly afterwards the tenant assaults the neighbour. The neighbour sues the authority for failing to warn them.

Question: Is a duty likely?

Answer:
The court would apply Caparo in this novel context involving alleged omissions and third-party criminal acts. Foreseeability is present, but proximity may be weak. On the fair, just and reasonable limb, policy concerns and the absence of assumption of responsibility or control mean a duty to warn is unlikely (Mitchell).

Worked Example 1.6

A retail occupier is aware that trespassers sometimes enter a derelict building and start fires. The occupier takes no steps to secure the building. An intruder starts a fire which spreads to neighbouring property.

Question: Is the occupier likely to owe a duty to neighbours?

Answer:
This engages exceptions to the general rule against liability for third-party acts. The occupier has adopted a source of danger and knows trespassers are interfering. Foreseeability and proximity to neighbours are present, and it is fair, just and reasonable to impose a duty to take reasonable steps to prevent or reduce risk. A duty is likely.

Policy Factors and Limiting Liability

The third limb of the Caparo test allows the courts to consider public policy. Even if harm is foreseeable and there is proximity, the courts may refuse to impose a duty if it would not be fair, just and reasonable. Common policy reasons include:

• Avoiding unlimited or indeterminate liability (for example, duties to broad classes of investors or users not closely identified)
• Preventing defensive practices that may harm the public interest (e.g., chilling public authority functions)
• Respecting democratic choices about resource allocation—courts avoid imposing duties that effectively require public bodies to spend resources in a particular way (Stovin v Wise)
• Recognising existing statutory frameworks and remedies (e.g., regulators, ombudsmen) and avoiding duplication
• Ensuring courts do not supervise general standards of public administration rather than specific legal duties
• Maintaining boundaries around liability for criminal acts by third parties unless a recognised exception applies

Policy does not operate as blanket immunity—particularly where the defendant’s positive acts cause harm. Robinson makes clear that public bodies, including the police, may be liable in negligence like any private defendant where their actions cause foreseeable injury.

Key Term: fair, just and reasonable
A policy-sensitive balancing that asks whether imposing a duty would be appropriate given wider legal and social considerations.

Exam Warning

The Caparo test is only used in novel situations. If the facts fall within an established duty category (e.g., road users), do not apply Caparo in your answer—simply state that a duty exists.

Revision Tip

In SQE1 questions, always identify whether the scenario is an established or novel duty situation before deciding whether to apply the Caparo test. Where a defendant’s positive act causes harm, start with orthodox negligence principles; reserve Caparo for new categories.

Summary Table: Established vs Novel Duty Situations

Key Point Checklist

This article has covered the following key knowledge points:

• The distinction between established and novel duty of care situations in negligence
• The neighbour principle from Donoghue v Stevenson and its focus on foreseeability and proximity, including the manufacturer–consumer “narrow rule”
• The Caparo three-stage test: foreseeability, proximity, and fair, just and reasonable
• The incremental and by analogy approach: prefer analogous established duties before creating new ones
• Robinson’s clarification that Caparo is not a universal test and that positive acts attract orthodox negligence liability
• The role of policy factors in limiting the imposition of new duties of care
• How omissions and third-party acts are treated, including the recognised exceptions (assumption of responsibility, control, creation/adoption of danger)
• The Caparo test is only used where there is no established duty situation

Key Terms and Concepts

• duty of care
• neighbour principle
• foreseeability
• proximity
• Caparo test
• incremental approach
• fair, just and reasonable