Negligence and the duty of care

The law of negligence provides a remedy for those wronged by another.

In order to succeed in a case of negligence we must show three things :

1 that a duty of care exists
2 that the duty of care was breached and
3 that damage flows, from the duty of care.

Hillsborough and duty of care - a predicament

One of the problems with dealing with duty of care is that it is easy for us to assume that a duty of care exists. It seems a common sense approach. In reality the common sense and everyday application of the words duty of care are severely limited in law by the judges. How limited this duty of care can be seen if we consider the Hillsborough tragedy. Late in 1996 many newspapers carried letters from readers who wanted an explanation of how brothers and sisters of those who died at Hillsborough were denied compensation, whilst police officers at the scene received substantial damages.

Developing our understanding of the law concerning duty of care

This paper is intended to help the student appreciate the legal reasons for such decisions. A number of words play an important part in the law of negligence, or more importantly, the duty of care which we have to establish in order to bring an action for negligence. These words include foreseeability, neighbour, proximity and policy. Another word which is important is reasonable.

Let us examine a particular problem :

A motorist driving in a built up area knocks over a young child. The speed limit in the area is 30 mph. The driver was driving at 60 mph. The road where the accident occurred was in a heavily populated area.


This is a question of whether the driver owes a duty of care to those who use the road. The test of duty of care is stated in Donoghue v Stevenson 1932 AC 562.

In Donoghue, Lord Atkins describes a neighbour as someone who may be affected by our acts at any particular time. We are obliged to foresee the consequences our act may have on others. The term proximity was, said Lord Atkins :

such close and direct relations that the act complained of directly affects the person to whom the person alleged to be bound to take care would know would be directly affected by his careless act.

In Morgan Crucible Co plc v Hill Samuel & Co Ltd NLJ November 16 1990 p 1605 it was stated that not only should there be :

sufficient "relationship proximity" between plaintiff and defendant. It must also be "just and reasonable" to impose liability on the defendant for what has occurred" LJ Slade

Case law shows that the issues of neighbour, proximity and foreseeability are frequently the result of subjective decisions by judges, often termed policy decisions. We frequently see the phrase "It is not the policy to provide remedies for...". The cases related to the Hillsborough disaster such as Jones v Chief Constable of West Yorkshire NLJ December 7 1990 p 1717 and the subsequent appeal Jones v Wright 1991 NLJ May 10 1991 p 635 provide interesting examples of proximity and policy.

We can now add further problems to our case study :

The mother of the injured child comes upon the accident - a few moments after the accident occurred. Naturally, the mother was shocked and suffered from nervous shock for some considerable time after the accident. The mother sues the driver.


Cases such as McLoughlin v O'Brian 1982 2 All ER 298 tell us that a mother coming upon the scene of an accident to her child, and suffering nervous shock as a consequence, can sue the driver for negligence. In McLoughlin it was held that it was foreseeable that a mother could suffer shock on coming upon an accident involving her child.

To appreciate the part proximity and policy play in such cases refer to the Hillsborough accident cases mentioned earlier.

Lets add a further complication to our problem.

A business man going to an urgent meeting was caught up in the aftermath of the accident and delayed from attending an urgent business meeting. Asa consequence the business man lost a vital order. The business man felt that the driver should have foreseen that his negligent driving would inconvenience other road users and cause them loss.


It is clear that the business man has been inconvenienced and has suffered loss as a consequence of the negligent driving. The question we need now address is whether the driver is legally liable to the business man?

The case of Caparo v Dickman NLJ February 23 1990 p 248 is interesting to refer to especially the speech of Lord Bridge.

To fully appreciate the legal application of duty of care the following extract from LJ Parker's speech in Jones v Wright NLJ May 19 1991 p 636 is illuminating :

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyers question Who is my neighbour ? receives a restricted reply.

This extract from the speech of Lord Parker comes from Donoghue v Stevenson. Lord Parker goes on :

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour?. The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question. ( The words in italics are those emphasised by LJ Parker)

The general test in Donoghue is more subjective than the more specific two part test proposed by Lord Wilberforce in Anns v Merton LBC 1978. The more objective test and I believe a test more favourable to the plaintiff fell foul of the House of Lords, especially Lords Bridge and Keith in the years 1985 - 1990.

In our case the likelihood is that the negligent driver would not be regarded as having reasonably foreseen the damage to the business man. It is likely that whilst the business man is a neighbour that relationship would not have sufficient proximity to have legal consequences.

Further problems we can introduce into the situation include one where

the child's injury was not serious but required the child to be taken to hospital in an ambulance for a precautionary check up. On the way to the hospital the ambulance driver ignores jumps a red light (He was not using his emergency lighting or other signal) and crashes into another vehicle . The result is that the young child now suffers from a fractured arm and other problems. our problem is to examine the legal responsibility of the driver in the original accident and of the ambulance driver.


The law says that the defendant will be liable for the consequences of his breach of duty which are reasonably foreseeable. This was stated in The Wagon Mound 1961 In this case it was held foreseeable that the spillage of fuel oil would cause fouling of slipways . It was not foreseeable that the fuel oil would ignite and cause fire damage.

Egg shell rule re remoteness

This means that the wrongdoer must take his victim as he finds him. This means that if you injure someone you are liable to whatever harm he suffers even if greater than expected. The greater damage might be due to the victim having a weak heart, thin skull or as in Smith v Leech Brain & Co. Ltd 1962 a pre malignant cancer triggered off by a splash of molten metal.

The latter case of Robinson v Post Office 1974 concerned the plaintiff cutting his leg as he came down an oily ladder. When his leg was treated he was given an anti-tetanus injection. He was allergic to it and the result was brain damage. The Post Office were held liable as it was foreseeable that the dangerous ladder would cause some injury. It was also foreseeable that such an injury would require medical treatment so the Post Office were liable for all the consequences of the treatment.

Liability in Novus actus interveniens (Intervening action)

Liability may be escaped if the defendant can prove that the injury suffered by the plaintiff was the result of a subsequent and intervening action which broke the chain of causation linking injury to the tortuous act.

In Scott v Shepherd 1773 the defendant threw a lighted firework on to Yates¼ market stall. Yates picked it up, threw it away, the firework landing on a stall owned by Ryal, who also threw it away. It exploded in the plaintiffs face causing injury. In this case the court ruled that there was no break in the causation change (damage was not too remote) as it was reasonably foreseeable that people would throw a lighted firework away.

It must be stated that these cases are must difficult to decide. They depend on the subjective assessment of the judge. The consequence is that case law is shrouded with cases both for and against intervening actions. All we will do here is to give some illustrating cases.

Davies v Liverpool Corporation 1949 saw the corporation being held liable for the negligence of the tram conductor who let a passenger ring the bell as another passenger was getting on the tram. The corporation claimed that the action by the passenger was an intervening action. The court held that the act of the passenger did not break the chain of causation.

Four cases in 1969 are worthy of examination. In McKew v Holland and Hansen and Cubitts (Scotland) Ltd 1969 the plaintiff who had injured a leg due to the negligence of his employers, frequently lost the use of the leg. One day whilst going down stairs with no handrail the leg gave way causing further injury. In this case it was held that the act of going down unprotected stairs was an intervening action that broke the chain of causation. Contrast this with :

Wieland v Cyril Lord Carpets 1969 involves a plaintiff injured by the negligence of Cyril Lord being further injured whilst walking down stairs. Her initial injury led to her neck being immobilised and whilst coming down stairs wearing her neck collar and bifocal spectacles she further stumbled and injured herself. In this case the further injury was not due to an intervening factor as she was acting perfectly reasonably in carefully walking down stairs in her own home.

In Tremain v Pike 1969 the defendant allowed a field to become infested with rats. The plaintiff contacted Weil¼s disease from contact with rats¼ urine. The judge held that the contacting of Weil¼s disease was too remote as it was only reasonably foreseeable that the plaintiff would be bitten or poisoned.

A fourth case was Barnett v Chelsea and Kensington Hospital Management Committee 1969

A better understanding of the Hillsborough duty of care cases

We have seen that the words policy, proximity, foreseeability can all drastically reduce the numbers and categories of people affected by the duty of care. If we consider two aspects of the Hillsborough case we can better appreciate the judicial decisions that tormented so many late in 1996.

In cases of nervous shock to loved ones. the policy (as in McLoughlin) was to accept that many categories of person would be affected by injury or death caused to a loved one by the negligence of another. What the judges have done is to say that the duty of care only affects parents. In 1990 (Jones v Chief Constable of West Yorkshire) the trial judge attempted to extend the category of persons owed a duty of care to brothers. This decision was dismissed by the Court of appeal. Thus the legal precedent is McLoughlin.

There is another area negligence that states that rescuers and others may be affected by the scenes they witness or come upon. It was this part of the law of negligence which affected the policemen who sued their Chief Constable for damages as a result of police negligence at Hillsborough. Their employer was liable to them .They were the first in the chain of causation, for this type of nervous shock case. Others such as brothers of the injured police would not be able to claim damages because of the policy decisions to restrict liability.

The consequence of policy can clearly be seen in the Caparo case. In this case the plaintiff claimed compensation because they purchased a company, taking the published and audited report and accounts as correct. They were not, and the purchaser sued the auditor alleging negligence. It was held that the auditor did not owe a duty of care to the person relying on the accounts to purchase shares r the company. The duty of care was restricted to the members of the company (shareholders) It was to the shareholders alone to whom a duty of care was owed.

It should be clear that the Hillsborough anomaly is to be understood through the judicial limitation of the duty of care. We can see the affect of Lord Parker's words in the Hillsborough appeal that

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyers question Who is my neighbour ? receives a restricted reply.

The application of nervous shock cases covers a number of issues. It s one issue to examine the duty of care owed to parents. In this instance that parents are at the top of the list. Others (although they was late 1996 case that seeks to extend the duty of care to step brothers and sisters) such a full brothers were specifically denied compensation as the duty of care owed to them was remote.

In the police officer case their employer owed them a duty of care. This was direct relationship and it was in another area of the law of negligence. Thus the officers were entitled to compensation as they were on the top of their particular "relationship" list.
Stephen John B Sc(Econ) M Sc M Ed MBA M Phil FIPD
Updated December 1996
Copyright Stephen John 1996

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