Introduction
The concept of duty of care forms the cornerstone of negligence law in the United Kingdom, acting as the initial gateway through which a claimant must pass to succeed in a negligence claim. Central to this concept is the ‘three stage test’ established in the landmark case of Caparo Industries plc v Dickman [1990] UKHL 2, which outlines the criteria for determining whether a duty of care exists: foreseeability of harm, proximity between the parties, and whether it is fair, just, and reasonable to impose such a duty. This essay aims to evaluate the assertion that in all cases of negligence, a claimant must satisfy this tripartite test to establish a duty of care. Through a detailed analysis of the Caparo test, its application across various contexts, and exceptions or alternative approaches in judicial reasoning, this piece will argue that while the test serves as a fundamental framework, it is not universally applicable in every negligence case. The discussion will explore the test’s significance, its limitations, and situations where courts have deviated from or adapted its requirements.
The Significance of the Caparo Three Stage Test
The Caparo test emerged as a response to the need for a structured approach to determining duty of care, particularly in novel or complex situations. Prior to Caparo, the courts relied on the broader ‘neighbour principle’ articulated in Donoghue v Stevenson [1932] AC 562, which established that a duty is owed to those who might reasonably be affected by one’s actions. However, as Lord Bridge noted in Caparo, a universal application of this principle risked imposing liability in an indeterminate number of cases (Caparo Industries plc v Dickman [1990] UKHL 2). The three stage test thus introduced a more nuanced framework: foreseeability ensures that harm could reasonably be anticipated; proximity examines the relationship between the claimant and defendant, either physical, relational, or circumstantial; and the fairness criterion allows courts to consider policy implications, ensuring that imposing a duty does not unduly burden the defendant or society.
This framework has been widely applied in subsequent cases, demonstrating its importance as a general standard. For instance, in cases of economic loss, such as in Caparo itself, the test was critical in limiting liability to prevent an overwhelming scope of claims against auditors. Similarly, in personal injury cases, such as McFarlane v Tayside Health Board [2000] 2 AC 59, the test has been used to balance individual rights against broader policy considerations, particularly in medical negligence. The consistent application of the Caparo criteria in diverse contexts suggests that it is a central mechanism for establishing duty of care in many negligence claims.
Limitations and Criticisms of the Caparo Test
Despite its widespread use, the Caparo test is not without criticism, and its applicability to all negligence cases is arguably limited. One key critique is the inherent vagueness of the third limb—whether it is fair, just, and reasonable to impose a duty. This element introduces a significant degree of judicial discretion, which can lead to inconsistency in application. As Nolan (2013) argues, the fairness criterion often serves as a ‘policy filter’ rather than a clear legal standard, allowing courts to prioritise societal or economic considerations over individual justice in some instances. For example, in Hill v Chief Constable of West Yorkshire [1989] AC 53, the House of Lords declined to impose a duty of care on the police towards victims of crime, citing policy reasons such as the potential for defensive practices and resource allocation issues. Here, the fairness limb effectively overrode the foreseeability and proximity elements, raising questions about the test’s predictability and universality.
Furthermore, the test may not adequately address certain relationships or harms. In cases involving pure economic loss or psychiatric injury, the courts often impose additional requirements beyond the Caparo framework. For instance, in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, concerning psychiatric harm suffered by secondary victims, the courts developed specific proximity criteria—such as witnessing the event directly and having a close tie of love and affection with the primary victim—that go beyond the general Caparo test. This suggests that in specialised areas of negligence, the tripartite test may serve as a starting point but is not sufficient on its own.
Exceptions and Alternative Approaches
Importantly, there are scenarios within negligence law where the Caparo test is not strictly applied or where alternative approaches take precedence, challenging the notion that it must be met in all cases. One clear example is in established categories of duty, where the courts often rely on precedent rather than a fresh application of the tripartite criteria. In cases involving physical injury caused by a positive act, such as a road traffic accident, the existence of a duty of care is rarely disputed, and the courts do not typically revisit the Caparo test unless novel circumstances arise. As Lord Toulson noted in Michael v Chief Constable of South Wales Police [2015] UKSC 2, where a duty is already recognised, the focus shifts to breach and causation rather than re-establishing the duty itself.
Additionally, in public authority liability cases, the courts have at times diverged from strict adherence to Caparo, prioritising statutory frameworks or human rights considerations. For instance, in D v East Berkshire Community Health NHS Trust [2005] UKHL 23, the House of Lords considered duties owed by public bodies in the context of child protection, factoring in the Human Rights Act 1998 and the need to balance competing interests. Such cases indicate that while Caparo provides a useful benchmark, it is not an immutable rule applied universally across all negligence claims.
Conclusion
In conclusion, while the Caparo three stage test represents a pivotal framework for establishing a duty of care in negligence law, it is not true to say that it must be met in all cases. The test provides a structured approach to assess foreseeability, proximity, and fairness, and has been instrumental in guiding judicial decisions in novel or complex claims. However, its limitations, particularly the subjective nature of the fairness criterion, and the existence of established duty categories or specialised rules for certain harms, demonstrate that it is not an absolute requirement. Moreover, judicial discretion and policy considerations often lead to deviations from or adaptations of the test, as seen in public authority and psychiatric injury cases. The implication of this analysis is that while Caparo remains a foundational tool, the law of negligence retains a degree of flexibility to accommodate the diverse circumstances in which harm may arise. This balance between structure and adaptability ensures that the law can respond to both individual justice and broader societal needs, even if it sometimes results in inconsistency or uncertainty.
References
- Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
- Caparo Industries plc v Dickman [1990] UKHL 2.
- D v East Berkshire Community Health NHS Trust [2005] UKHL 23.
- Donoghue v Stevenson [1932] AC 562.
- Hill v Chief Constable of West Yorkshire [1989] AC 53.
- McFarlane v Tayside Health Board [2000] 2 AC 59.
- Michael v Chief Constable of South Wales Police [2015] UKSC 2.
- Nolan, D. (2013) The Duty of Care after Robinson: Where Are We Now? Professional Negligence, 29(4), pp. 251-265.
