This document discusses negligence and the duty of care in civil actions. It defines a civil action as one brought by a private citizen to enforce or protect a private right, unlike a criminal action brought by the government to punish crimes. A duty of care refers to an individual's responsibility not to harm others through carelessness. The modern test for establishing a duty of care comes from the Caparo Industries v Dickman case, which has three stages - foreseeability, proximity, and fairness. There are exceptions like public service immunity and special situations involving pre-natal injuries or rescuers.

1. Negligence

2. Civil Actions
• What is a civil action?
Can you think of any examples?
Definition of a civil action: “An action
brought to enforce, redress, or protect a
private or civil right; a noncriminal litigation”
Compare to the definition for a criminal
action: “An action instituted by the
government to punish offenses against the
public”

3. Civil Actions are Different
•Criminal Actions
• Brought by the
government
• Government is known
as the prosecution
• Prosecution has the
burden of proof –
beyond a reasonable
doubt
• Defendant loses if
found guilty
• Usual penalty is a
prison sentence
Civil Actions
– Brought by private citizens
– Person bringing action is
known as the plaintiff
– Plaintiff has the burden of
proof – preponderance of
the evidence
– Defendant loses if found
liable
– Usual penalty is money
damages

4. What is a ‘Duty of Care’?
•Duty of care can roughly be thought of a
responsibility of an individual to not harm
others through carelessness.

5. The Development of the Duty of Care
• The legal basis for finding a duty of care has its roots in Donoghue v
Stevenson [1932] AC 562. Key to the decision is the reasoning of Lord
Atkin (who led the majority of the court). Atkin held that a general
duty of care could be said to exist between two parties under the
‘neighbour principle’.
• However, Lord Atkin’s description of the neighbour principle is
relatively broad in scope, and is thus inclusive of a wide range of
situations. As a result of this, a number of cases subsequently sought
to limit the application of the neighbour principle, such as limiting it
to cases involving physical harm or damage to property (Old Gate
Estates Ltd v Toplis & Harding & Russell[1939] 3 All ER 209).

6. The Current Law: The Caparo Industries v
Dickman[1990] 2 AC 605 test
• The Caparo test is made up of three
stages: foreseeability, proximity and fairness.
• This first stage revolves around whether it is foreseeable that the
defendant’s carelessness could cause damage to the claimant. A
prime example of foreseeability can be seen in the US-based case
of Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339.

7. • The second stage is based on whether there is a relationship
of proximity between the defendant and the claimant. This can be
seen in Alcock v Chief Constable of South Yorkshire Police[1991] UKHL
5.
• The third and final stage of Caparo involves establishing whether it
would be fair, just and reasonable for the courts to find that the
defendant owed a duty of care to the claimant. This stage provides
the courts with discretion.

8. Exceptions and Special Situations
• There exists a significant variety of situations in which establishing a
duty of care becomes more complicated than simply applying
the Caparo test such as with Liability for Omissions; Control
situations; Assumption of Responsibility situations; Creation or
Adoption of a Risk situations.

9. Duty of Care and Third-Party Actors
• For the vast majority of cases, the actions of third parties will not
impart liability on claimants, and will usually be held as a novus actus
interveniens, as per Home Office v Dorset Yacht Co Ltd[1970].

10. Duty of Care and Public Service Immunity
• There also exists a significant exception to the duty of care principle,
when it comes to various public services. Overall, the stance of the
courts is that public services do not have a duty of care towards
individuals

11. Special Claimants
• Finally, there are certain set situations in which a duty of care will be
imposed, even if it would traditionally be legally unfeasible such as
with Pre-natal Injuries (Burton v Islington Health Authority[1993] QB
204) and Rescuers (Ogwo v Taylor [1988] AC 431); Crossley v
Rawlinson[1982] 1 WLR 369.