Tort Law: Negligence and the Duty of Care

Negligence has three building blocks: a duty of care, a breach of that duty, and damage caused by the breach that is not too remote. This guide covers the first and most heavily examined element, the duty of care, from Lord Atkin's neighbour principle to the modern approach the Supreme Court set out in Robinson.

1. The Neighbour Principle

The modern law of negligence begins with a snail in a ginger beer bottle. Lord Atkin held that you owe a duty to take reasonable care to avoid acts or omissions that you can reasonably foresee would injure your "neighbour", meaning anyone so closely and directly affected by your act that you ought to have them in contemplation.

2. The Caparo Three-Stage Test

For decades the courts asked three questions before recognising a novel duty: was the harm reasonably foreseeable; was there a relationship of proximity between the parties; and is it fair, just and reasonable to impose a duty?

3. The Modern, Incremental Approach

The Supreme Court has since corrected a common misreading. Caparo is not a universal test to be applied mechanically to every case. Where an established line of authority already recognises or denies a duty, the court simply applies it. The three-stage analysis is reserved for genuinely novel situations.

Established duty situations

Some relationships carry a settled duty: manufacturer and consumer, one road user and another, doctor and patient, employer and employee. In these categories you cite the precedent and move on rather than reopening Caparo.

4. Worked Example

ISSUE: Does the driver owe the cyclist a duty of care?

RULE: Road users owe a settled duty to other road users. This is an established category, so there is no need to apply the full Caparo test (Robinson).

APPLICATION: The driver and cyclist are both road users in an established relationship of proximity. Injury to a nearby cyclist from careless driving is plainly foreseeable.

CONCLUSION: A duty of care is owed. The analysis then moves on to breach and causation.

Examiner Insights

Conclusion

The duty of care is the gateway to liability in negligence. Start from established categories, reason by analogy, and keep the three-stage test for the rare novel case. That structure is what separates a confident answer from a recited one.