Chapter 1: Introduction to the Tort of Negligence & the Duty of Care

Question 1

1 What is negligence?

Answer 1

The legal meaning of ‘negligence’ is clearly distinguishable from what a lay person might refer to as mere carelessness or recklessness. Negligence is the breach of a legal
duty to take care by the defendant resulting in loss or damage to the claimant.

Question 2

Elements of an actionable claim in negligence

Answer 2

Loss or Damage = Loss or damage of a recognised kind sustained by the claimant

Duty = The existence of a duty of care owed by the defendant to the claimant

Breach = Breach of that duty by the defendant

Causation = Proof that the breach caused the damage (both in law and in fact)

Remoteness = Proof that the damage suffered was reasonably foreseeable ie not too remote

Defenses = Finally, defences: the defendant may have one or more valid defences to
the claim

Question 3

Physical Damage

Answer 3

Physical/bodily injury = broken arm or skull fracture

Question 4

Consequential economic
loss (ie economic loss
which results from
personal injury/damage
to property)

Answer 4

Loss of wages when you could not attend work due to a broken
arm, Loss of revenue when a shop has to close due to damage to the
roof

Question 4

Property Damage

Answer 4

Damage to your car, Damage to the roof of your house

Question 5

Psychiatric Harm

Answer 5

Generally, this must be something beyond emotional distress. It
must be a recognised mental illness eg reactive depression.

Question 6

Pure Economic Loss

Answer 6

Lost savings due to an investment based on bad advice, Harm to your business’s reputation due to the negligent design of an unpopular advert

Question 7

2. How to determine whether a duty of care is owed: The General Rule

Answer 7

’The rule that you are to love your neighbour becomes in law, you must not injure your neighbour’ Lord Atkin, Donoghue v Stevenson [1932] AC 562 But who, in law, is your neighbour?

Question 8

2.1 Is a duty of care owed?

Answer 8

A defendant cannot be liable for carelessness unless the law requires them to be careful in the first
place. The courts reflect this by using the concept of ‘a duty of care’. In this section we will cover the use of authority and general principles in determining whether a duty of care is owed. We will also cover, example situations in which a duty of care has been found to exist or not exist.

Question 9

Key case: Donoghue v Stevenson [1932] A.C. 562

Answer 9

Facts: The claimant’s friend bought her a ginger beer, which came in an opaque bottle, in a café. After drinking some of the beer, to the claimant’s horror, when the remainder was poured, it was found to contain a decomposed snail. The claimant claimed she was made ill by this but was unable to sue the café owner, as there was no contract between them as her friend had bought the ginger beer. Instead, she sued the manufacturer.

Held: The House of Lords, by a narrow majority, allowed her to succeed and decided that a
manufacturer owed a duty to the ultimate consumer. This was of great importance, since, prior to this case, manufacturers had only been held liable to consumers in limited situations.

Question 10

2.2 Neighbour principle, Lord Atkin,

Answer 10

This attempted to create a test which could be used by the courts when
considering if a duty of care should be imposed. The test used the concepts of foreseeability and
proximity. However, note this ‘test’ is old law and was replaced by Caparo Industries v Dickman [1990] 2 AC 605 (HL).

Question 11

Reasonable Foreseeability

Answer 11

You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law is my 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 so affected when I am directing my mind to the acts or omissions which are called in question.

Question 12

Key case: Caparo Industries v Dickman [1990] 2 AC 605 (HL) (The Caparo Test)

Answer 12

In Caparo the court brought this expansive approach to an end. The case set out a three-stage
approach for establishing a duty of care (where there is no precedent). However, the court suggested that it would be unwise to look for a magic formula for a general test for the existence of a duty of care. Instead, a cautious, incremental approach based on existing authority was
recommended.

Question 13

2.2.1 The three-step approach for the Caparo Test

Answer 13

The courts have indicated that the starting point when determining if there is a duty of care in a
novel case is by using the Caparo approach and developing the scope of duty of care incrementally, by analogy with established authorities.

• Stage 1: Foreseeability of harm. This test is objective; it is not what the individual defendant
  foresaw but what the reasonable person would be expected to foresee. It must be reasonably
  foreseeable that the defendant’s lack of care would cause the claimant harm.
• Stage 2: There must be a relationship of sufficient proximity (closeness) between the claimant
  and defendant.
• Stage 3: It must be fair, just and reasonable to impose a duty.

Question 14

2.3 What does analogy with established authority mean?

Answer 14

It is normally only in a novel type of case ie where there is no established duty, that the courts need to decide whether a duty of care should be recognised. This is very rare in practice. Recent case law has emphasised the approach in novel situations should be on the development of the law incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the earlier authorities ie in those previous cases where a duty was found or not found.

Question 15

Proximity

Answer 15

In many cases the significant features are connected with the relationship between the claimant
and the defendant – ie their proximity. This focus on proximity will therefore remain important as
a result of using earlier authorities. For example, a principle clear in the authorities is that there is
proximity where a defendant assumed responsibility for the claimant

Question 16

2.4 What about fair, just and reasonable?

Answer 16

It is the exercise of judgement in those circumstances that involves consideration of what is ‘fair,
just and reasonable’. Fair, just and reasonable involves a broad analysis. As part of this, the court will consider
(expressly or implicitly) the impact of a decision socially, politically and economically on society as a whole.

Question 17

Policy Considerations

Answer 17

These policy considerations can narrow or broaden the scope of claims depending on the
prevailing legal mood at the time.
Some policy considerations are:
* Floodgates
* Insurance
* Crushing liability
* Deterrence
* Maintenance of high standards
* Defensive practices

Question 18

Floodgates

Answer 18

‘Floodgates’ is a frequently cited policy consideration. This refers to the fear on the part of the
judges that to allow one claim would open the legal floodgates leading to a deluge of claims
‘flooding’ the courts. It was an important consideration in the development of the law relating to
the duty to avoid causing psychiatric harm.

Question 19

Insurance

Answer 19

‘Insurance’ is important as the defendant is more likely to be liable if they are (or should have
been) insured because they will have the means to pay damages. There is also the connected loss distribution argument that finding an insured party liable effectively spreads the cost of compensation through society.

Question 20

Crushing Liability

Answer 20

‘Crushing liability’ is another policy consideration that refers to a concern to finding a party
liable where the result would be that the party would need to pay damages out of all proportion
to the wrong committed.

Question 21

Other Policy Considerations

Answer 21

Other policy considerations include imposing liability as a ‘deterrent’ for undesirable behaviour or
as a way of ‘maintaining high standards’, and also the concern that imposing liability might lead
to the adoption of ‘defensive practices’, where parties act in an undesirable way in an effort to
avoid claims.

Question 22

The incremental approach

Answer 22

So where there is no clear precedent, the question of whether to impose a duty should be approached by analogy with established authority. In relation to fair, just and reasonable, the judgment expressly states that this will remain a relevant consideration when judging whether
a duty of care should be recognised in a novel type of case.

To be clear, when determining duty of care, the first question should be: Is there a precedent
making clear whether or not a duty is owed?

Question 23

Nettleship v Weston [1971] 2 QB 691

Answer 23

It is well established that a driver (road user) owes a duty of care to other road users not to
cause them physical injury by careless driving. If you are presented with a case of a road user
causing injury to other road users, there is no need to embark on a complex analysis to establish duty – you simply need to apply Nettleship

Question 24

Cassidy v Ministry of Health [1951] 2 KB 343

Answer 24

Medical professionals owe a duty of care to patients once they have accepted them for
treatment.

Question 25

Baker v T.E. Hopkins & Son Ltd [1959] 3 All ER 225

Answer 25

Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue
two workers and died from the fumes. The Court of Appeal held that Dr Baker was owed a duty
of care as it was reasonably foreseeable that someone would seek to rescue the workers in
danger.

Question 26

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC

Answer 26

The police owe a duty of care to the public to protect them from reasonably foreseeable
physical injury when carrying out an arrest.

Question 27

2.6 Establishing duty of care with no clear precedent Example: Watson v British Boxing Board of Control [2001] QB 1134

Answer 27

A boxer’s claim that immediate medical attention should have been available at the ringside was
upheld . The injury (brain damage) was foreseeable; the defendant had assumed responsibility (a
principle derived from authorities) for determining the nature of the medical facilities and assistance to be provided to boxers by making regulations setting out the details of the medical
care which should be available.

Question 28

2.7 Summary

Answer 28

• When attempting to ascertain if a duty of care is owed, you should consider whether there are
  any existing authorities which have already established a duty of care in the situation being
  considered.
• If there is no such precedent, you should consider whether duty should be imposed by
  drawing analogies with existing cases.
• As a minimum, a duty of care will not be imposed unless harm is objectively reasonably
  foreseeable.
• When considering imposing a duty in a new area, the aim is to develop the law incrementally,
  and you should consider the relationship between the claimant and the defendant/proximity
  and whether imposing the duty would be fair, just and reasonable.

Question 29

3 Duty of care: Liability for omissions, 3.1 The general rule

Answer 29

The general rule is that the law of tort only imposes liability on those who cause injury or damage
to another; no such duty is imposed on a mere failure to act, otherwise known as an omission (Smith v Littlewoods Organisation Ltd [1987] AC 241). For example, if a stranger sees a child drowning, there is no legal obligation on that stranger to try to rescue.

Question 30

Solicitor/Client Relationship: Relationships of Proximity

Answer 30

For example, if a solicitor acting for
a client agrees to issue proceedings at court by a certain date but fails to do so, this failure is an omission. But there is no doubt that a solicitor owes a duty to avoid such an omission ie a duty to act in those circumstances.

When reviewing the authorities, a particularly prominent consideration in this area (omissions) is
the relationship between the claimant and the defendant/the proximity of the parties. You will see
this relationship being examined in the cases set out in this section.

Question 31

3.2 Exceptions to the general rule explained: (a) Where there is a statutory duty:

Answer 31

If a statute imposes a positive duty to act on the defendant,
then a failure to do so can be the basis for liability. For example, the Occupiers’ Liability Act
1957 imposes a duty of care on the occupier of premises to ensure their premises are
reasonably safe for visitors. Failure to do so (eg failing to fix a broken window which injures a
visitor) could lead to liability on behalf of the occupier.

Question 32

(b) Where there is a contractual duty:

Answer 32

Where a person fails to perform a contractual duty this
may give rise to a duty owed for an omission. The case of Stansbie v Troman is an example of
this (see more about this in the section on Duty of care: liability for acts of third parties).

Question 33

(c) Where the defendant has sufficient control over the claimant:

Answer 33

Where the defendant has a
high degree of control over the claimant, the law may impose a positive duty on the
defendant to act. For example, a parent has a sufficient degree of control over their child and
should intervene if they are drowning. In Reeves v Commissioner of Police for the Metropolis
[1999] the House of Lords held that the police owed a duty to protect a prisoner from taking
his own life because they had a high degree of control over the prisoner who was in their
custody and there was high known risk of prisoners taking their own life.

Question 34

(e) Where the Defendant creates the risk:

Answer 34

If a defendant creates a dangerous situation through an omission the law may impose a positive duty to act to mitigate the danger. For example, in Goldman v Hargrave, the defendant was held liable for a naturally occurring fire that started
on his land where he knew or ought to have known of the danger and failed to take reasonable steps to mitigate that danger. In this case the defendant extinguished the fire on
his land but did not douse the embers. Wind reignited the fire causing damage to the
claimant’s land.

Question 35

Assessment focus point: Using the exceptions to the general rule

Answer 35

If the facts of the case you are dealing with are the same of very similar to one of the cases
listed in exceptions (a)-(e) above, these cases can be used as a precedent for establishing a
duty of care.

If you are dealing with a novel omissions case where the facts are not the same as any precedent, you should start by identifying the general rule (that no duty is owed) and then consider whether a duty should be imposed by drawing analogies with existing cases as
you go through the three stages of Caparo (foreseeability, proximity and fair, just and
reasonable).

When reviewing the existing cases, a particularly prominent consideration in this area of omissions is the relationship between the claimant and the defendant/the proximity of
the parties, so it is a good idea to discuss exceptions to the general rule under the heading of
proximity

Question 36

3.3 Omissions and the emergency services

Answer 36

Ambulance: The ambulance service (regarded as part of the health service) owe a duty of care to respond to
a 999 call within a reasonable time (Kent v Griffiths & Others [2000] 2 All ER 474). However, this
duty might not have been breached where the service properly exercised its discretion to deal
with a more pressing emergency before attending to the claimant or where it had made a choice
about the allocation of resources. Duty and breach are separate questions.

Firebrigade: The fire brigade owes no duty of care to attend a fire but if they do attend a fire, they owe a duty
not to make the situation worse through a positive act (Capital and Counties plc v Hampshire
County Council [1997] QB 1004 - a fire-fighter ordered a sprinkler system, operating at the fire, to
be turned off).

Police: The police owe no duty of care to respond to emergency calls (Alexandrou v Oxford [1993] 4 All ER
328 - the police did not owe the claimant a duty to respond to his burglar alarm). However, police
can owe a duty in other circumstances eg in Reeves the police owed a duty in relation to an
omission (but the omission was not a failure to respond to an emergency call).

Question 37

3.4 Summary

Answer 37

• As a general rule, no duty is imposed on a mere failure to act.
• When attempting to ascertain if a duty of care is owed, you should start by applying any precedent. If there is none, you should consider whether a duty should be imposed by drawing
  analogies with existing cases, considering foreseeabilty, ‘proximity’ and what would be fair,
  just and reasonable
• Consider all the exceptions to the general rule

Question 38

4 Duty of care: Liability for acts of third parties, General Rule

Answer 38

As a general rule, the law of tort only imposes liability on those who directly cause injury or damage to another; no such duty is imposed on a failure to prevent a third party causing harm to another (Smith v Littlewoods Organisation Ltd [1987] AC 241). However, there are a number of exceptions to this general rule, in which the law does impose a positive duty to act to prevent a
third party causing harm to another.

Question 39

Considerations to establish duty of third parties

Answer 39

When ascertaining if a duty of care is owed, you should consider whether there is any precedent
which has already established a duty of care in the situation being considered. If not, you should consider whether a duty should be imposed by drawing analogies with existing cases as you work through the Caparo three-stage test of foreseeability, proximity, and fair, just and reasonableness. The aim is to develop the law incrementally

When reviewing the existing cases, a particularly prominent consideration in this area (acts of third parties) is the relationship between the claimant and the defendant/the proximity of the parties and between the defendant and third party. You will see these relationships being
examined in the cases set out in this section.

Question 40

4.2 Exceptions to the general rule explained

4.2.1 Where there is sufficient proximity between the defendant and claimant

Answer 40

Case law suggests that sufficient proximity is established where the claimant is an identifiable
victim at risk over and above the public at large and the defendant has assumed responsibility for
the claimant’s safety.

Question 41

Key case: Stansbie v Troman [1948] 2 K.B. 48

Answer 41

In Stansbie v Troman there was sufficient proximity between the defendant and claimant because
of the contractual relationship between the parties. The defendant decorator owed a duty of care
to lock the claimant’s property when he left and owed a duty of care when his failure to do so allowed burglars into the property.

Question 42

Key case: Home Office v Dorset Yacht [1970] A.C. 1004

Answer 42

In Home Office v Dorset Yacht the defendants were held liable for the wrongful acts of some
borstal boys under their supervision. The borstal boys were left unsupervised and attempted to
escape the island using the claimant’s yachts and damaging them in the process. The court held
that there was sufficient proximity between the claimant and defendant – the claimants were identifiable victims at particular risk of damage over and above the public at large. The borstal boys had a history of escape and the claimant’s yachts were the only way they could escape the island.

Question 43

Key case: Swinney v Chief Constable of Northumbria [1999] 4 WLUK 160

Answer 43

In Swinney v Chief Constable of Northumbria, the claimant was a police informer who gave
information concerning a suspect on the condition that she remained anonymous. A police file
containing her details was left unattended in a police car and was stolen, reaching the criminal
against whom she had given evidence. As a result she was harassed, causing her to suffer
psychiatric illness. The Court of Appeal found sufficient proximity between the claimant and the
police –it was known by the police who might be harmed as a result of their negligence. The police
had assumed responsibility to protect the claimant against the criminal she gave evidence about.

Question 44

Key case: Hill v Chief Constable of West Yorkshire [1989] A.C. 53

Answer 44

In contrast to Home Office and Swinney, in Hill v Chief Constable of West Yorkshire, the mother of
the last victim of the ‘Yorkshire Ripper’, sued the police for negligently failing to apprehend him
earlier. He had been questioned by the police and released and had subsequently murdered
again. The House of Lords refused to impose a duty of care as there was insufficient proximity
between the victim who was an unidentifiable member of a massive group of potential victims (all
women in the area) and the police.

Question 45

Key case: Mitchell v Glasgow City Council [2009] UKHL 11

Answer 45

Recent case law suggests being an identifiable victim is not enough, and in addition the defendant must through their words or conduct assume responsibility for the claimant, as seen in
Mitchell v Glasgow City Council. Mr Drummond and Mr Mitchell were both tenants of the defendant. The defendant was aware of Mr Drummond’s death threats to Mr Mitchell. At a meeting, the defendant threatened to evict Mr Drummond if his anti-social behaviour continued. Mr Drummond returned home and killed Mr Mitchell. Mr Mitchell’s widow claimed the defendant owed Mr Mitchell a duty of care to warn him of the potential danger. However, the claim failed: there was not sufficient proximity between Mr Mitchell and the defendant as the defendant had
not assumed responsibility for the safety of Mr Mitchell through their words or conduct.

Question 46

4.2.2 Where there is sufficient proximity (a special relationship) between the defendant and
third party (the party that caused the harm)

Answer 46

A duty is imposed on the basis that the defendant has a responsibility to control/supervise the
third party. What amounts to sufficient proximity can be explained by looking at the following
case law.

Question 47

Key case: Home Office v Dorset Yacht [1970] A.C. 1004

Answer 47

In Home Office v Dorset Yacht the defendants were held liable for the wrongful acts of some
borstal boys under their supervision. Given the borstal boys were under the supervision of the
defendant, this supervisory relationship created proximity between the defendant and borstal
boys and a duty of care was owed.

Question 48

Key case: Hill v Chief Constable of West Yorkshire [1989] A.C. 53

Answer 48

In Hill v Chief Constable of West Yorkshire, there was no proximity between the defendant (police)
and third party (the ‘Yorkshire Ripper’) as the third party was not under police care and control at
the time of the killing so no duty was owed.

Question 49

Key case: Palmer v Tees Health Authority [1997] 7 WLUK 68

Answer 49

In Palmer v Tees Health Authority, there was a lack of proximity between the authority and the
third party. In this case, the claimant argued that a local Mental Health Authority owed her a duty
in allowing a psychiatric patient into the community without adequate supervision. The patient
had previously threatened to kill a child and after he was released, he subsequently attacked and
killed the claimant’s daughter. The Court of Appeal stated that there was not sufficient proximity
between the authority and patient as the patient was not under the authority’s care and control
at the time the harm was committed. Equally there was no proximity between the claimant and
defendant as the daughter was not an identifiable victim.

Question 50

4.2.3 Where the defendant created the danger

Answer 50

If a defendant creates or allows the creation of a danger and the claimant is injured as a result, it
may be liable even though it was a third party’s action that actually caused the damage in
question.

Question 51

Key case: Stansbie v Troman [1948] 2 K.B. 48

Answer 51

In Stansbie v Troman, the defendant decorator, owed a duty of care to a property owner having allowed burglars into the property by failing to secure the building (this created the danger).

Question 52

4.2.4 The risk was on the defendant’s premises

Answer 52

If a defendant knows, or ought to know, of a danger on their property created by a third party,
they may owe a duty to anyone who is subsequently damaged as a result of that danger. In other words, the defendant has a duty of care to take reasonable steps to eradicate or diminish the known danger.

Question 53

Key case: Smith v Littlewoods [1987] AC 241

Answer 53

In Smith v Littlewoods vandals broke into the defendant’s derelict cinema and started a fire which caused damage to the claimant’s neighbouring property. The defendant owed no duty of care to
abate the danger because they did not know of the danger nor was the danger foreseeable – they had no reason to suspect the vandals’ entry (there was no history of break-ins).

Question 54

4.3 Summary

Answer 54

• As a general rule, no duty is imposed on a failure to prevent a third-party cause harm to
  another.
• Fair, Just & Reasonable Proximity: When attempting to ascertain if a duty is owed, you should start by applying any precedent.
  If there is none, you should consider whether a duty should be imposed by drawing analogies with existing cases, considering foreseeabilty, ‘proximity’ and what would be fair, just and reasonable. Particular regard should be had to the importance in the existing cases of the relationship between the claimant and the defendant (the proximity), and the defendant and
  third-party.
• There are a number of overlapping and ill-defined exceptions to the general rule:
  (i) Where there is sufficient proximity between the defendant and claimant; and/or
  (ii) Where there is sufficient proximity between the defendant and third-party; and/or
  (iii) Where the defendant created the danger; and/or
  (iv) Where the risk created by the third party was on the defendant’s premises.

Question 55

5 Public bodies and duty of care

Answer 55

If the same principles apply to private individuals and public bodies, why is ascertaining whether
duties of care are owed by public bodies particularly problematic?
There are two complicating factors:
(a) Many public bodies derive their powers or duties from statutes – and this can have an impact on the court’s findings in relation to duty.

(b) When deciding whether to develop the law of negligence into a new area, the court must look
at what is fair, just and reasonable, and take into account policy considerations – public
bodies often present different concerns in this regard to those presented by individuals.

Question 56

5.1 Relevance of powers or duties derived from statute

Key case: CN and GN v Poole Borough Council [2019] UKSC 25

Answer 56

The court summarised the law in this area as follows:
(a) When looking at positive acts and omissions, the liability of a public authority is in principle
the same as that of a private person but may be restricted by statutory powers or duties. So,
an act which would normally amount to a breach of duty cannot if it is specifically authorised by an Act of Parliament. This principle gives effect to the principle of
parliamentary sovereignty.

(b) When looking at omissions, the usual law applying to individuals would again apply, and it
would be very hard to argue that because a public body has a duty or power to act in a
particular area, that a failure to act would give rise to a duty in negligence.

Held: The court applied the above principles to the facts and held that even if the Council had the power to take the children into care, this was insufficient to show that the Council had a duty to do so.

In this regard, the claimant
argued that the council had assumed responsibility for the claimant’s welfare. However, the court
rejected this argument. Accordingly, there were no exceptions to the general rule, and so no duty
was owed

Question 57

5.2 ‘Fair, just and reasonable’ and policy considerations

Answer 57

An example is Hill v Chief Constable of West Yorkshire [1989] AC 53 (the facts of which were discussed in the element ‘Duty of care: liability for acts of third parties’). The court considered that the threat of liability in cases like Hill might lead to the police adopting defensive practices
and may result in both a waste of resources and inefficient use of police manpower. The courts
were concerned about the floodgates opening for claims against the police if they could be sued
in negligence for failing to apprehend a criminal. This would lead to a diversion of limited
resources in time, money and manpower.

Question 58

Distinction between operational and policy

Answer 58

Another policy consideration is the distinction between operational and policy matters. Historically, the suggestion was that a public body can be held liable for the former, but not the
latter eg in Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, the police fired CS
gas without considering the fire risk, and a fire resulted. The decision to equip the police with CS
gas (rather than a non-flammable alternative) was a policy decision with which the court could
not interfere. However, the way in which that gas was then used was an operational matter which
could amount to a breach.

Question 59

5.3 Examples of duties imposed on public bodies

Answer 59

In Phelps v Hillingdon London Borough (2000) 3 WLR 776 the local authority’s psychologist
misdiagnosed the claimant’s dyslexia whilst a child. A duty of care was owed because the local
authority had assumed responsibility for a child’s educational services and therefore owed a duty
to provide education appropriate to the child’s needs. The imposition of liability for an omission
where the party has ‘assumed responsibility’ is simply an example of the principle equally
applicable to individuals that liability can be imposed where there is exceptional proximity
between the claimant and the defendant.

Question 60

Jebson v Ministry of Defence [2000] 1 WLR 2055

Answer 60

The drunk claimant soldier was injured whilst returning from a night out organised by his camp commander. The claimant tried to climb onto the roof of a moving lorry, lost his footing and fell. The commander owed the claimant a duty of care by impliedly assuming responsibility for his safety on the return trip and was in breach of this
duty given the lack of suitable transport and supervision.

Note that the army do not owe a duty to soldiers in battle conditions (during active combat) (Mulcahy v Ministry of Defence [1996] QB 732 (CA)).

Question 61

5.4 Summary

Answer 61

In the first instance, the same principles apply to public bodies as apply to individuals when
ascertaining whether a duty of care is owed.

Incompatibility with statutory scheme: However, even if those ordinary principles point towards the imposition of a duty of care, no such
duty of care will be imposed if it would be incompatible with the intentions of the statutory scheme under which the public body operates.