Workshop 1 - Duty of care (general negligence)

What is negligence, and what are the key elements required to prove a claim in negligence?

Negligence is the breach of a legal duty to take care by the defendant, resulting in loss or damage to the claimant. It is distinct from ordinary carelessness or recklessness in everyday language because it has a specific legal meaning.

To prove negligence, the claimant must establish the following elements:

1. Duty of care

2. Breach of duty

3. Causation

4. Remoteness of damage

5. Loss or damage

The court may also consider any available defences. Negligence is the most significant tort in both legal study and practice, dominating much of the law of civil obligations.

What elements must be established to succeed in a claim for negligence?

To establish a claim in negligence, the claimant must prove:

1. Loss or damage – the claimant suffered recognised loss or damage.

2. Duty of care – the defendant owed the claimant a duty of care.

3. Breach – the defendant breached that duty.

4. Causation – the breach caused the damage, both factually and legally.

5. Remoteness – the damage was reasonably foreseeable and not too remote.

6. Defences – the defendant may rely on one or more valid defences to avoid or reduce liability.

Why is identifying the type of loss important in negligence, and what types of loss are commonly recognised?

In negligence claims, the first issue is usually identifying the claimant’s loss or damage because the type of loss can determine the test used to establish a duty of care. Once the loss is identified, the court considers whether the defendant owed a duty of care in respect of that type of loss.

Common types of recognised loss include:

• Physical / bodily injury – e.g. a broken arm or skull fracture.

• Psychiatric harm – recognised mental illness beyond ordinary emotional distress, e.g. reactive depression.

• Property damage – e.g. damage to a car or house roof.

• Consequential economic loss – financial loss resulting from personal injury or property damage, e.g. lost wages due to injury or lost business revenue after property damage.

• Pure economic loss – financial loss not connected to physical injury or property damage, e.g. lost savings from negligent advice or business losses caused by a poorly designed advert.

Key areas studied in duty of care include:

1. Determining whether a duty of care exists.

2. Liability for omissions.

3. Liability for acts of third parties.

4. Whether public bodies owe a duty of care.

What is a duty of care, and why is it important in negligence claims?

A defendant cannot be liable for negligence unless the law first requires them to take care. This legal obligation is known as a duty of care.

The courts use the concept of duty of care to determine whether the defendant owed the claimant a legal responsibility to avoid causing harm. Without a duty of care, there can be no liability for carelessness.

This element of negligence focuses on:

• The use of legal authority and general principles to determine whether a duty of care exists.

• Examples of situations where courts have found a duty of care to exist or not exist.

• The “duty” stage within the negligence claim structure:

  1. Loss or damage

  2. Duty

  3. Breach

  4. Causation

  5. Remoteness

  6. Defences.

Why is Donoghue v Stevenson important in the development of duty of care?

Donoghue v Stevenson was the first major case to establish a general test for duty of care in negligence and is the foundation of modern negligence law.

Facts:
The claimant’s friend bought her a ginger beer in a café. The bottle was opaque, and after the claimant drank some of the beer, the remainder was poured out and found to contain a decomposed snail. The claimant became ill. She could not sue the café owner because there was no contract between them, as her friend had purchased the drink. Instead, she sued the manufacturer.

Held:
The House of Lords held, by a narrow majority, that the manufacturer owed a duty of care to the ultimate consumer. This was significant because, before this case, manufacturers were only liable to consumers in limited circumstances.

What is the “neighbour principle” from Donoghue v Stevenson, and what does it mean for duty of care?

The “neighbour principle” was developed by Lord Atkin in Donoghue v Stevenson as an early test for when a duty of care should be imposed. Although it has now been replaced by the modern test in Caparo Industries v Dickman, it remains highly important as a foundation of negligence law.

Lord Atkin explained that a person must take reasonable care to avoid acts or omissions they can reasonably foresee would likely injure their “neighbour.” In legal terms, your “neighbour” is not just anyone nearby, but people who are:

• Closely and directly affected by your actions, and

• Those you ought reasonably to have in mind when acting.

This introduces two key ideas:

• Foreseeability – you must be able to reasonably predict that harm could occur.

• Proximity – there must be a close and direct relationship between the parties.

Together, these concepts helped shape the modern approach to determining when a duty of care exists.

What is the significance of Caparo Industries v Dickman in determining duty of care?

Caparo Industries v Dickman is a key case that refined the modern approach to establishing a duty of care and limited the earlier expansion of negligence claims seen after Donoghue v Stevenson.

During the 1970s and 1980s, courts were increasingly willing to find duties of care in new situations, significantly expanding negligence law. However, Caparo introduced a more cautious, incremental approach. The court emphasised that there is no single “magic formula” for duty of care and that courts should develop the law step by step using existing precedent.

The three-stage Caparo test applies where there is no existing precedent:

1. Foreseeability of harm – it must be reasonably foreseeable that the defendant’s conduct could cause harm to the claimant (objectively assessed).

2. Proximity – there must be a sufficiently close relationship between claimant and defendant.

3. Fair, just and reasonable – it must be appropriate to impose a duty of care in the circumstances.

Overall, Caparo established that courts should build duty of care incrementally by analogy with established cases rather than applying a broad general test in all situations.

What does “analogy with established authority” mean in determining a duty of care?

“Analogy with established authority” means that courts determine whether a duty of care exists in a new or novel situation by comparing it to previous cases where a duty of care has already been recognised or rejected.

In many situations, there is already clear precedent (e.g. road users owing duties to other road users), so a duty of care is automatically accepted and no further test is needed.

It is only in novel cases—where no existing duty has been established—that courts apply a more incremental approach following Caparo Industries v Dickman. In these cases, judges decide whether to recognise a duty by looking at earlier cases and reasoning by analogy.

This involves identifying the legally significant features of previous decisions, especially those relating to the relationship between claimant and defendant, such as proximity. If the key features of a past case are similar, a duty of care is more likely to be found. If they are different, a duty may not be imposed.

A particularly important example of proximity is where the defendant has assumed responsibility for the claimant, which often supports the existence of a duty of care.

What does “fair, just and reasonable” mean in the Caparo duty of care test, and what policy factors do courts consider?

“Fair, just and reasonable” is the third stage of the Caparo Industries v Dickman test. It requires the court to exercise judgement when deciding whether it is appropriate to impose a duty of care in a novel case.

This stage is not strictly legal or formulaic; instead, it involves a broad policy-based assessment of the wider impact of imposing liability on society. Courts consider how recognising a duty of care might affect social, economic, and political interests.

Key policy considerations include:

• Floodgates – concern that recognising one claim could lead to a large number of similar claims, overwhelming the courts (particularly relevant in psychiatric harm cases).

• Insurance – courts may be more willing to impose a duty where the defendant is insured or able to spread the cost of compensation.

• Crushing liability – avoiding liability that would impose disproportionate financial burdens on the defendant.

• Deterrence – encouraging careful behaviour by holding parties accountable for negligence.

• Maintenance of high standards – supporting professional or public standards of care.

• Defensive practices – avoiding situations where fear of liability leads defendants to act overly cautiously or inefficiently.

Overall, this stage allows courts to balance fairness to the claimant with broader societal consequences when deciding whether a duty of care should exist.

How did Robinson v Chief Constable of West Yorkshire Police clarify the approach to duty of care after Caparo Industries v Dickman?

Robinson v Chief Constable of West Yorkshire Police confirmed and clarified the approach to duty of care following Caparo Industries v Dickman. It emphasised that the courts should not treat the Caparo test as a universal formula for every case.

Instead, the correct approach is:

• Start with established principles and precedent – if existing case law already covers the situation, it should be applied directly.

• Only in novel cases (where no clear precedent exists), courts should go further and decide whether to recognise a new duty of care.

• In those novel cases, courts should proceed incrementally and by analogy with established authority, identifying the legally significant features of earlier cases.

The judgment also confirmed that the “fair, just and reasonable” stage remains relevant, but it is part of the court’s evaluative judgment in novel cases rather than a free-standing test used in every situation.

How is a duty of care determined in negligence, and what role do precedents play?

When determining whether a duty of care is owed, the first step is to ask whether there is an existing precedent that clearly establishes whether a duty is owed in the situation.

If YES, the court simply applies that precedent and there is no need to apply broader tests like Caparo Industries v Dickman.

There are many established areas where duty of care is already well settled, including:

• Nettleship v Weston – road users owe a duty of care to other road users to avoid causing physical injury through careless driving.

• Cassidy v Ministry of Health – medical professionals owe a duty of care to patients once they accept them for treatment.

• Baker v T E Hopkins & Son Ltd – a duty of care can extend to rescuers where harm is reasonably foreseeable.

• Robinson v Chief Constable of West Yorkshire Police – the police owe a duty of care to the public to avoid reasonably foreseeable physical injury during arrests.

In these situations, duty of care is already established, so the legal analysis focuses on applying the precedent rather than re-testing the principles of duty.

How is precedent applied to determine duty of care in a negligence scenario involving police arrest and injury?

In negligence, where there is an existing precedent, the court applies it directly rather than using the Caparo Industries v Dickman test.

In this scenario, Ursula v PC Harper, the key issue is whether the police owed a duty of care. The relevant authority is Robinson v Chief Constable of West Yorkshire Police, which establishes that where harm is a direct result of police action, officers owe a duty to avoid causing reasonably foreseeable physical injury during arrests.

Application:

• Parties: Ursula v PC Harper

• Tort: Negligence

• Loss: Personal injury (broken wrist)

Because the police were carrying out an arrest in a crowded café, and the suspect was known to be violent and likely to resist, it was reasonably foreseeable that bystanders could be injured during the arrest.

Therefore, applying Robinson v Chief Constable of West Yorkshire Police, a duty of care is clearly owed to Ursula to protect her from foreseeable physical injury during the operation.

How is a duty of care established in a novel case with no clear precedent, and what does Watson v BBBC show about this approach?

Where there is no clear precedent, courts do not automatically apply an existing duty of care. Instead, they consider whether a duty should be recognised by applying the Caparo framework and reasoning by analogy with existing cases.

In such situations, the court asks:

• Is harm reasonably foreseeable?

• Is there sufficient proximity between claimant and defendant (often shown through relationships like assumption of responsibility)?

• Is it fair, just and reasonable to impose a duty?

This is an evaluative and incremental process, based on identifying the legally significant features of earlier authorities and comparing them to the new situation.

A key example is Watson v British Boxing Board of Control. In this case, a boxer suffered severe brain damage and claimed that proper medical assistance should have been provided at ringside.

The court held that a duty of care was owed because:

• The injury was reasonably foreseeable.

• The BBBC had assumed responsibility by regulating and controlling medical safety standards in boxing.

• It was fair, just and reasonable to impose liability, as doing so would not create unfair or unlimited obligations on other organisations.

Overall, the case demonstrates how courts use existing principles (especially assumption of responsibility and proximity) to extend duty of care incrementally in novel situations, rather than creating entirely new rules.

What is the general rule on liability for omissions in negligence?

In negligence, the law generally does not impose liability for omissions (a failure to act). Instead, liability is usually only imposed where the defendant has positively caused harm.

The general rule, established in Smith v Littlewoods Organisation Ltd, is that there is no duty to prevent harm to others simply by acting as a “rescuer” or by intervening.

An omission refers to a failure to confer a benefit or take action to help someone, rather than actively causing damage. For example, a stranger who sees a child drowning is under no general legal obligation to attempt a rescue.

Therefore, in tort law, there is ordinarily no liability for failing to act, unless an exception applies.

What are the exceptions to the general rule that there is no liability for omissions in negligence?

Although the general rule in negligence is that there is no liability for omissions (a failure to act), there are several key exceptions where the law does impose a positive duty to act. This was confirmed in Smith v Littlewoods Organisation Ltd.

A duty of care for an omission may arise in the following situations:

• Statutory duty – where legislation imposes an obligation to act.

• Contractual duty – where a defendant has agreed (e.g. in a contract) to act, such as a solicitor failing to issue proceedings on time.

• Control over the claimant – where the defendant has sufficient control over another person and must take steps to prevent harm.

• Assumption of responsibility – where the defendant has taken responsibility for the claimant’s safety or interests.

• Creation of risk – where the defendant’s actions have created or contributed to a dangerous situation, requiring them to take steps to prevent harm.

These exceptions often feel justified because they involve a relationship of proximity between the parties, unlike a pure bystander situation (e.g. a stranger witnessing a child drowning).

When determining whether a duty exists for an omission, courts still apply the same general approach:

• Check for existing precedent, and if none exists,

• Use analogy with established cases, considering foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.

What are the five exceptions to the general rule that there is no duty of care for omissions in negligence?

Question:
What are the five exceptions to the general rule that there is no duty of care for omissions in negligence?

Answer:
The general rule in negligence is that there is no liability for a failure to act (omission). However, there are five key exceptions where the law does impose a positive duty to act:

1. Statutory duty – where legislation requires action. For example, under the Occupiers’ Liability Act 1957, occupiers must ensure premises are reasonably safe for visitors; failure to do so can create liability.

2. Contractual duty – where a duty arises from a contract. If a party fails to perform contractual obligations, they may be liable. For example, Stansbie v Troman shows liability where a contractual obligation was not properly fulfilled.

3. Control over the claimant – where the defendant has a high degree of control over another person and must take steps to prevent harm. In Reeves v Commissioner of Police for the Metropolis, the police were liable because they had custody of a prisoner and failed to prevent his suicide.

4. Assumption of responsibility – where the defendant voluntarily takes responsibility for another’s welfare. In Barrett v Ministry of Defence, liability arose once an officer began caring for an intoxicated individual and then left him unattended.

5. Creation of risk – where the defendant creates or contributes to a dangerous situation and must take reasonable steps to prevent harm. In Goldman v Hargrave, liability arose after the defendant failed to take reasonable steps to prevent a fire from reigniting and spreading.

Overall, these exceptions are closely linked to proximity and relationships between the parties, and are often analysed when deciding whether a duty of care exists in omission cases using analogy and the Caparo approach.

How should a court approach a novel omissions case when determining whether a duty of care is owed?

In a novel omissions case (where there is no directly applicable precedent), the court starts with the general rule that there is no duty of care for a failure to act.

It then considers whether a duty should nevertheless be imposed by:

• Drawing analogies with existing cases, and

• Applying the Caparo three-stage test:

  1. Foreseeability of harm

  2. Proximity between claimant and defendant

  3. Whether it is fair, just and reasonable to impose a duty

The courts develop the law incrementally, meaning they extend existing principles step by step rather than creating entirely new categories of liability.

A particularly important factor in omissions cases is proximity, especially the relationship between the claimant and defendant. Many of the recognised exceptions to the no-duty rule (such as assumption of responsibility or control) are essentially ways of establishing sufficient proximity.

Therefore, when analysing omissions, it is often effective to discuss the recognised exceptions under the broader heading of proximity and relational responsibility.

What is the legal position on omissions and the emergency services in negligence?

The courts treat emergency services differently depending on the role they are performing and the circumstances of the alleged omission.

• Ambulance service: The ambulance service owes a duty of care to respond to a 999 call within a reasonable time (Kent v Griffiths & Others). However, breach may not be found if they reasonably prioritise a more serious emergency or allocate resources elsewhere. Importantly, duty and breach are separate issues.

• Fire brigade: The fire service generally owes no duty to attend a fire, but once it does attend, it must not make the situation worse through positive acts (Capital and Counties plc v Hampshire County Council).

• Police: The police generally owe no duty to respond to emergency calls, such as responding to burglar alarms (Alexandrou v Oxford). However, they may owe duties in other contexts, particularly where there is control or assumption of responsibility, as seen in Reeves v Commissioner of Police for the Metropolis.

Overall, emergency services are usually not liable for pure omissions in responding to emergencies, but liability may arise where a duty is already established or where their actions worsen the situation.

Does Ursula owe Emilia a duty of care in an omissions scenario where she fails to rescue a drowning child?

The general rule in negligence is that there is no duty of care for a failure to act (omission), as established in Smith v Littlewoods Organisation Ltd. This means there is generally no legal obligation to rescue someone in danger.

In this scenario (Emilia v Ursula), there is no existing precedent that imposes a duty of care on a bystander in Ursula’s position, and none of the recognised exceptions apply:

• Ursula has no control over Emilia.

• She has not assumed responsibility for Emilia’s welfare.

• She has not created the danger.

• There is no statutory or contractual duty between them.

Therefore, applying the general rule, Ursula does not owe a duty of care to Emilia for failing to rescue her.

A duty might only arise if the facts were different—for example, if Ursula had a special relationship with Emilia (such as being a parent) or if she had created the risk (e.g. leaving a gate open leading to the lake).

Do the police owe a duty of care in an omissions scenario where a prisoner in custody takes their own life?

In negligence, the general rule is that there is no duty of care for omissions, meaning there is no obligation to act to prevent harm unless an exception applies (Smith v Littlewoods Organisation Ltd).

However, this case falls within a well-established exception: where the defendant has control over the claimant and/or assumes responsibility for their welfare, a positive duty to act may arise.

In this scenario, the police have arrested and detained the prisoner, meaning the prisoner is in their custody and control. The prisoner has also explicitly communicated suicidal intent, making harm reasonably foreseeable.

Applying Reeves v Commissioner of Police for the Metropolis, the police owe a duty of care to take reasonable steps to prevent a prisoner in their custody from causing harm to themselves, including suicide.

Therefore, the police do owe a duty of care to the prisoner’s estate because custody creates sufficient proximity and triggers an exception to the no-liability-for-omissions rule.

What is meant by “liability for acts of third parties” in negligence, and how is it relevant to duty of care?

“Liability for acts of third parties” refers to situations where a claimant suffers harm caused not directly by the defendant, but by another person (a third party), and the issue is whether the defendant can still be held responsible in negligence.

The general question is whether the defendant owed a duty of care to prevent harm caused by that third party. This forms part of the duty stage in the negligence sequence:
loss or damage → duty → breach → causation → remoteness → defences.

The key issue is whether the law should impose a duty on the defendant to protect the claimant from the actions of someone else, which is not the default position in negligence.

This area is important because it helps determine whether, in cases involving third-party wrongdoing (such as theft, violence, or criminal acts), the defendant can still be liable for failing to prevent that harm.

What is the general rule on liability for harm caused by third parties in negligence, and how is duty of care assessed in such cases?

The general rule in negligence is that a defendant is only liable for harm they directly cause, and there is no duty of care to prevent harm caused by third parties, as established in Smith v Littlewoods Organisation Ltd.

This means that, as a starting point, the law does not impose liability where the damage is caused by someone else’s actions, even if the defendant could have taken steps to prevent it.

However, there are exceptions where a duty to prevent third-party harm may arise. When determining whether such a duty exists, the court will:

• First check whether there is existing precedent establishing a duty in similar circumstances.

• If not, apply an incremental approach, using the Caparo Industries v Dickman test:

  • Foreseeability of harm

  • Proximity between the parties

  • Whether it is fair, just and reasonable to impose a duty

In this area, courts pay particular attention to relationships of proximity, not only between claimant and defendant, but also between the defendant and the third party whose actions caused the harm.

Overall, liability for third-party acts is developed cautiously and incrementally, based on analogy with established cases rather than broad general rules.

What are the exceptions to the general rule that there is no duty of care to prevent harm caused by third parties in negligence?

The general rule in negligence is that there is no duty of care to prevent harm caused by third parties, as confirmed in Smith v Littlewoods Organisation Ltd.

However, there are key exceptions where a duty of care may arise:

1. Sufficient proximity between defendant and claimant – where the relationship between the parties is sufficiently close to justify imposing a duty.

2. Sufficient proximity between defendant and third party – where the defendant has a close relationship or control over the wrongdoer.

3. Creation of danger – where the defendant has created or contributed to the risk that allows the third party to cause harm.

4. Risk arising on defendant’s premises – where the harm occurs due to a danger on property controlled by the defendant.

These exceptions reflect situations where there is enough proximity or responsibility to justify imposing a positive duty to prevent harm caused by others.

Question:
When will there be sufficient proximity between the defendant and claimant to impose a duty of care for harm caused by third parties? (exception 1)

The general rule is that there is no duty of care to prevent harm caused by third parties, as confirmed in Smith v Littlewoods Organisation Ltd. However, one key exception arises where there is sufficient proximity between the defendant and claimant, meaning a special relationship exists.

Case law shows that proximity is usually established where the claimant is an identifiable victim at risk over and above the general public, and where the defendant has assumed responsibility for their safety.

Key authorities include:

• Stansbie v Troman – a decorator owed a duty to secure the property he was working on, creating proximity through a contractual relationship.

• Home Office v Dorset Yacht Co Ltd – the Home Office was liable where borstal boys under its control escaped and caused damage; the claimants were identifiable victims at particular risk.

• Swinney v Chief Constable of Northumbria Police – the police owed a duty to protect an informant whose identity they had failed to safeguard, showing assumption of responsibility.

In contrast:

• Hill v Chief Constable of West Yorkshire – no duty was owed because victims of the Yorkshire Ripper were not identifiable individuals, but members of a large, unascertainable group, meaning insufficient proximity.

• Mitchell v Glasgow City Council and CN v Poole Borough Council – confirmed that mere knowledge of risk or statutory powers is not enough; there must be an assumption of responsibility to establish proximity.

Overall, sufficient proximity in third-party cases is most likely where the claimant is identifiable and the defendant has, through conduct or words, assumed responsibility for protecting them.

When will there be sufficient proximity between the defendant and a third party to impose a duty of care for harm caused by that third party? (exception 2)

The general rule is that there is no duty of care to prevent harm caused by third parties, as set out in Smith v Littlewoods Organisation Ltd. One key exception is where there is sufficient proximity between the defendant and the third party, usually based on a special relationship involving control or supervision. In these situations, the defendant may be under a duty to take reasonable steps to prevent the third party causing harm.

Case law shows that proximity is generally established where the third party is under the defendant’s care, custody, or control at the time of the harm:

• Home Office v Dorset Yacht Co Ltd – the Home Office owed a duty because borstal boys were under its supervision, creating a special relationship of control. Liability was limited to harm occurring during or closely connected to their escape.

• Hill v Chief Constable of West Yorkshire – no duty was owed because the police did not have control over the serial killer at the time of the murders, so there was insufficient proximity.

• Palmer v Tees Health Authority – no duty arose where a psychiatric patient later committed a violent act, because he was not under the authority’s care and control at the time of the killing.

In summary, sufficient proximity between the defendant and third party is usually established where the defendant has custody, supervision, or control over the third party at the relevant time, creating a responsibility to prevent foreseeable harm.

When will a defendant owe a duty of care where they have created a danger leading to harm caused by a third party? (exception 3)

The general rule is that there is no duty of care to prevent harm caused by third parties, as established in Smith v Littlewoods Organisation Ltd. However, an exception arises where the defendant has created or contributed to a dangerous situation, and a third party then causes harm as a result.

In these cases, the defendant may still be liable because their conduct has set the risk in motion, even though the immediate harm is caused by someone else.

A key example is Stansbie v Troman, where a decorator failed to secure a property while working in it. This omission allowed burglars to enter and cause damage. The court held that the decorator owed a duty of care because his failure had created the opportunity for the third party’s wrongdoing, making the harm foreseeable and linking it back to his conduct.

Therefore, where a defendant creates a danger or enables a risk to arise, a duty of care may be imposed even if a third party is the immediate cause of the damage.

Question:
When can a duty of care arise for dangers on a defendant’s premises caused by third parties? (exception 4)

The general rule is that there is no duty of care to prevent harm caused by third parties, as confirmed in Smith v Littlewoods Organisation Ltd. However, an exception arises where there is a danger on the defendant’s premises caused by a third party, and the defendant knows or ought reasonably to know about it.

In such cases, the defendant may owe a duty of care to take reasonable steps to remove or reduce the risk of harm to others. This is because control over premises creates a level of responsibility to manage known dangers on the land.

In Smith v Littlewoods Organisation Ltd, vandals broke into a derelict cinema owned by the defendant and started a fire, which spread to neighbouring property. The House of Lords held that the defendant was not liable, because they had no actual or constructive knowledge of the risk and there was no history of break-ins. Therefore, the danger was not sufficiently foreseeable.

This shows that liability in this exception depends heavily on knowledge (actual or constructive) of the risk and the ability of the defendant to take reasonable steps to prevent harm occurring on their premises.

Question:
How should a duty of care be determined in a novel case involving harm caused by a third party?

In a novel act of third-party case, where there is no directly applicable precedent, the court starts with the general rule that there is no duty of care to prevent harm caused by third parties, as established in Smith v Littlewoods Organisation Ltd.

The court then considers whether an exception should be recognised by:

• Drawing analogies with existing case law, and

• Applying the Caparo three-stage test:

  1. Foreseeability of harm

  2. Proximity

  3. Whether it is fair, just and reasonable to impose a duty

The aim is to develop the law incrementally, extending established principles only where justified by analogy with prior authorities.

In this area, the most important factor is proximity, which may arise in two key relationships:

• Between the claimant and defendant (e.g. identifiable victim or assumption of responsibility), and

• Between the defendant and third party (e.g. control or supervision of the wrongdoer).

Because of this, it is often useful to structure analysis of third-party liability around the recognised exceptions based on proximity, as these reflect the main circumstances in which courts are willing to impose a duty of care.

How are the exceptions to liability for third-party acts categorised, and what approach was approved in Robinson?

Although the exceptions to the general rule (that there is no duty to prevent harm caused by third parties) are often taught in separate categories, they can also be grouped in a broader way.

In Robinson v Chief Constable of West Yorkshire Police, the court approved a helpful categorisation of situations where a duty of care can arise in relation to harm caused by a third party. A defendant (A) may owe a duty to a claimant (B) where:

1. Assumption of responsibility – A has taken responsibility to protect B from the danger.

2. Interference with protection – A has acted in a way that prevents others from protecting B from the danger.

3. Control over the source of danger – A has a special level of control over the person or thing causing the risk.

4. Status-based obligation – A’s role or status creates a duty to protect B from the danger.

These categories overlap with the earlier exceptions discussed in the topic. For example:

• Assumption of responsibility often explains cases where there is sufficient proximity between claimant and defendant.

• Control over the source of danger reflects situations involving supervision or custody of third parties, or dangers on the defendant’s premises.

Overall, this approach reinforces that third-party liability is not based on a single rule, but on whether one of these recognised relationships or responsibilities justifies imposing a duty of care.

What role do “fair, just and reasonable” and policy considerations play in imposing a duty of care on public bodies?

Following CN v Poole Borough Council, the courts have emphasised that the same general principles of negligence apply to public bodies as to private individuals, particularly focusing on established doctrines such as assumption of responsibility rather than broad policy arguments.

As a result, the scope for using policy considerations to deny a duty of care against public bodies has become more limited. In novel cases, courts will usually prioritise established legal principles over policy reasoning.

However, two policy considerations may still have limited relevance when deciding whether it is “fair, just and reasonable” to impose a duty:

• Public funding (taxpayer burden): If a claim succeeds against a public body, damages are ultimately paid from public funds, which may weigh against imposing a duty in a new or uncertain area.

• Defensive practices: Courts may be cautious about imposing duties that could lead public bodies to act defensively, restricting or over-cautiously delivering public services due to fear of litigation.

Overall, while these policy factors may still be considered, they play a secondary role compared to applying established negligence principles such as duty, proximity, and assumption of responsibility.

How do policy considerations such as “defensive practices” and “floodgates” apply in negligence, and what does Hill v Chief Constable of West Yorkshire illustrate?

Policy considerations can influence whether it is fair, just and reasonable to impose a duty of care, particularly in cases involving public bodies, although their role is now more limited following CN v Poole Borough Council.

In Hill v Chief Constable of West Yorkshire, the court refused to impose a duty of care on the police for failing to apprehend a serial killer earlier. One of the key reasons was policy-based concern about the wider consequences of liability.

The court highlighted two main policy issues:

• Defensive practices: If the police were liable for failing to catch criminals, they might adopt overly cautious or inefficient policing strategies to avoid being sued.

• Floodgates and resource diversion: Allowing such claims could lead to a large number of similar cases, placing a heavy burden on the courts and diverting limited police resources (time, money, and manpower) away from effective law enforcement.

Overall, Hill shows how courts may rely on policy considerations to avoid imposing duties that could negatively affect the efficiency and operation of public services.

What is the distinction between “policy” and “operational” matters in negligence involving public bodies, and how does Rigby v Chief Constable of Northamptonshire illustrate this?

In negligence claims against public bodies, courts have historically distinguished between policy decisions and operational actions when considering whether a duty of care should be imposed or breached.

• Policy matters involve high-level decisions about how public bodies are organised, funded, or equipped. Courts are generally reluctant to interfere with these decisions, as they involve resource allocation and broader governmental judgment.

• Operational matters involve the day-to-day execution of those policy decisions. These can give rise to liability if carried out negligently.

This distinction is illustrated in Rigby v Chief Constable of Northamptonshire. In that case, the police used CS gas without properly considering the fire risk, which led to a fire and damage.

The court held that:

• The decision to equip the police with CS gas rather than a non-flammable alternative was a policy decision, and the court would not interfere with it.

• However, the use of the CS gas in the specific situation was operational, and the negligent way it was deployed could give rise to liability.

Overall, this case shows that while courts respect policy decisions made by public authorities, they may still impose liability where negligence occurs in the operational implementation of those decisions.