Duty of care
The establishment of a duty of care is usually broken up into a three-step test. The first case to establish a general duty of care was Donoghue v Stevenson.[3] Famously, Mrs Donoghue claimed compensation for illness after she consumed a ginger beer containing a decomposed snail in a public house in Paisley, Scotland. The bottle was opaque so neither Mrs Donoghue nor the shopkeeper could see a snail, and at the time she could not sue the shopkeeper for breach of contract or consumer rights. The House of Lords by a majority held that the manufacturer, Mr Stevenson, was liable in tort. Lord Atkin held liability was "based upon a general public sentiment of moral wrongdoing for which the offender must pay" and people "must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." By contrast, Lord Macmillan suggested that the law should protect Mrs Donoghue by incremental analogy to previous cases.[4] Nevertheless, Lord Atkin's speech was widely followed, and was understood to contain three main points for establishing a duty of care. First, the concept of reasonable foreseeability of harm; second, the claimant and the defendant being in a relationship of proximity; third, and more loosely, it being fair, just and reasonable to impose liability on the defendant for his careless actions. This three-step scheme (also known as the tripartite or threefold test),[5] however, did not crystallise until the case of Caparo Industries Plc v Dickman.[6] A company called Caparo took over another company by buying up a majority of its shares. It did this because it sneakily obtained word from a company audit that the target was financially sound. The audit was prepared by a group of accountants (Dickman) and was intended for shareholders, not outsiders. Once Caparo owned the company it found that the finances were in fact pretty shoddy, and so it sued the accountants for being negligent in its audit preparation. The House of Lords found against Caparo and established the current threefold test. Although it was "reasonably foreseeable" that outsiders might learn of the carelessly prepared information, it was not the case that Caparo and Dickman were in a relationship of "proximity". This the court used as a term of art (note, this is different from the American use of the word) to say that it should not be the case that absolutely anyone who heard something said that was stupid and acted on it can sue. The court was reacting to its concern that to allow a claim here might open the floodgates of litigation. The third element, whether liability would be "fair, just and reasonable", was an extra hurdle added as a catch-all discretionary measure for the judiciary to block further claims.
Robinson v Chief Constable of West Yorkshire Police [2018 UKSC 4], found that the police owed a duty of care to a passer-by who was injured when they tried to arrest a drug-dealer
James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40, rejected claim by police officers charged but acquitted of assaulting a prisoner for damage to their reputations
