Duty of care in English law

Following the firm establishment of the neighbour principle in negligence, it became clear in subsequent years that it did not represent an easily applicable approach to new forms of duty, or to unprecedented situations of negligence.[5] As such, new categories of negligence evolved, as in Hedley Byrne & Co Ltd v Heller & Partners Ltd,[6] to cover different types of negligent acts, rather than a coherent doctrine or ratio being taken from Donoghue v Stevenson.[7] Some thirty years after Donoghue was decided, in Home Office v Dorset Yacht Co Ltd,[8] Lord Reid stated judicially that: "the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion."[9] It was not until the case of Anns v Merton London Borough Council[10] however, that the neighbour principle was adopted in a formal test for negligence. The case involved the negligent construction of a block of maisonettes, commissioned by the Merton London Borough Council. The flats, finished in 1972, had poorly constructed foundations, resulting in sloping of floors, and cracks in the walls. The lessees of the maisonettes sued the council in negligence, alleging a duty of care existed for the building to be properly constructed and in a usable state.

In rejecting the previous evolution of duty of care, a categorical approach where a claim would have to fit under previous situations a duty had been found, the House of Lords unanimously found a duty to exist. The test established by Lord Wilberforce – known as the Anns test – imposed a prima facie duty of care where:

• A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage, such that carelessness on the part of the former is likely to cause damage to the latter;[11]
• There are no considerations relevant which may reduce or limit the scope of any imposed duty.[12]

Following the establishment of the two stage test for a duty of care, there was a marked judicial retreat from the test, which was widely seen as being too inclusive, and being too easily applicable to cases which might be contrary to public policy.[13] The test was formally overruled in Murphy v Brentwood District Council,[14] where the House of Lords invoked the Practice Statement to depart from the Anns test. The resultant test for a duty of care - which remains good law today - can be found in the judgments of Caparo Industries plc v Dickman.[15] A large criticism of the Anns test had been that it combined the test for proximity of relationship with foreseeability of harm.[16] Whereas Lord Atkin's neighbour principle emphasised a need for both a proximate relationship, as well as a foreseeability of harm, the Anns test did not make such a clear distinction. Richard Kidner has stated that this led the courts to sometimes ignore relevant policy considerations,[17] and to encourage "lazy thinking and woolly analysis".[18] The resounding test attempts to reconcile the need for a control device, proximity of relationship, with foreseeability of harm. Lord Oliver's speech in Caparo Industries plc v Dickman summarises the test for a duty of care:[19]

• The harm which occurred must be a reasonable foreseeable result of the defendant's conduct;
• A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage;
• It is fair, just and reasonable to impose liability.

In reintroducing the need for proximity as a central control device, it has been stated that these three stages are 'ingredients' of liability, rather than tests in their own right.[20] For example, liability can arise between complete strangers, where positive acts involving foreseeable physical harm occur; where negligent omissions and misstatements occur however, it is necessary to show a proximate relationship, as well as a foreseeability of harm.[21]

It has been established at common law that those who attempt rescue are owed a duty of care by those who create dangerous situations, in which it is foreseeable rescuers may intervene.[27] This duty can apply to professional rescuers – such as doctors or lifeguards – as much as ordinary individuals, and may even apply where the rescuer engages in a careless or reckless rescue attempt.[28] The basis for this liability was first recognised in Haynes v Harwood.[29] Here, a child who threw a stone at a horse, causing it to bolt, was liable to a policeman who attempted to stop it subsequently, and was injured. The duty was confirmed in the later case of Baker v T E Hopkins & Son Ltd,[30] with Wilmer LJ stating that:

Assuming the rescuer not to have acted unreasonably, therefore, it seems to me that he must normally belong to the class of persons who ought to be within the contemplation of the wrongdoer as being closely and directly affected by the latter's act.[31]

The duty of care owed to a rescuer is separate from that owed to those he is rescuing.[32] Where individuals trespassed onto a railway line, putting themselves in danger, they were not owed a duty of care; however, the stationmaster who attempted rescue and was fatally injured was owed a duty of care, as it was foreseeable he would attempt a rescue.[33] Equally, a duty of care may arise where an individual imperils himself, and a rescuer is injured, despite the individual clearly owing himself no duty of care.[34]

The duty of care owed to protect others from psychiatric harm is different from that owed for physical harm, with additional control devices and distinctions present in order to limit liability.[43] A successful claim for psychiatric harm must result from a sudden shock (caused by a traumatising event),[43] and the victim must be of ordinary fortitude and mental strength, and not especially susceptible to the harm in question.[44] Whilst a prima facie duty of care is imposed for physical harm where the criteria of proximity, foreseeability, and policy are fulfilled, liability for psychiatric harm rests upon an individual's connection to a traumatising event; those not physically endangered may not be owed a duty of care unless they can fulfil several relational criteria.[45]

The decision of Page v Smith[46] establishes liability for psychiatric harm where an individual is endangered physically. Victims in this category are known as primary victims, and are automatically owed a duty of care, as explained by Lord Lloyd:

Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both.

— Page v Smith [1996] AC 155, at 190

Further individuals are classed as secondary victims, and must meet several criteria in order to establish a duty of care is owed to them. There are several types of victims whom the court have recognised; employees who suffer excessive stress at work,[lower-alpha 1] individuals witnessing the destruction of their property,[lower-alpha 2] while those witnessing especially traumatising scenes involving others are secondary victims.[47] Case law surrounding psychiatric harm focuses primarily on secondary victims; recovery for witnessing the injury and harm of others has been limited primarily by the decision of Alcock v Chief Constable of South Yorkshire,[48] which establishes several boundaries and criteria for imposing liability. There must be a close tie of 'love and affection' between the primary victim, and the secondary victim witnessing the traumatic event.[49] Additionally, the cause of the harm must be close and proximate to the shocking event in question, and it must be witnessed by the means of the victim's senses, and not via some form of communication.[50]

Negligence which causes no physical or psychiatric harm, but causes economic loss to an individual or organisation, is termed pure economic loss. The idea that a duty of care may be owed to protect against the economic loss of others has been seen as problematic,[51] as the bounds of such liability are potentially unforeseeable, and difficult to establish.[52] Thus, there are several limits in place on the recovery of pure economic loss, with some categories of economic loss being totally unrecoverable altogether. Those affected by damage caused to the property of another company or individual, or who suffer loss due to the purchase of a defective product, for example, cannot ordinarily recover any losses incurred as a result.[53] Instances where a duty of care is recognised generally involve the negligent performance of a service, or the negligent misstatements of professionals, which are then relied upon by others.

The development of pure economic loss stems from the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd,[6] where it was first recognised that a duty of care may arise not to cause economic loss to others through negligent misstatements.[54] In this case, Hedley Byrne, an advertising agency, approached Heller & Partners for a credit check on a third company, Easipower Ltd, before carrying out advertising orders on their behalf. Heller & Partners reported that Easipower Ltd was credit-worthy, and in reliance on this statement, Hedley Byrne placed advertising orders for them.[55] When subsequently Easipower Ltd was declared bankrupt, Hedley Byrne took legal action against Heller & Partners, alleging they had been owed a duty of care when consulting for a credit reference. Whilst Hedley Byrne did not succeed in their claim,[lower-alpha 3] the House of Lords recognised that such a duty may be owed, where a relationship of reliance exists between two parties.[55]