Duty of care in English law

The duty of care is the threshold concept of the tort of negligence. Before any question of breach, causation, or remoteness can arise, the claimant must establish that the defendant owed a legal obligation to take reasonable care for the claimant’s interests. The content and boundaries of that obligation have been the subject of sustained judicial and academic attention for nearly two centuries – from the foundational intuition of Lord Atkin’s neighbour principle in 1932, through the expansionist era following Anns v Merton London Borough Council [1978] AC 728, to the modern framework articulated in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 and its subsequent application.

This guide traces the development of duty of care doctrine in England and Wales, identifies the leading authorities at each stage, and analyses the state of the law today. Its focus is on the duty of care itself – its conceptual foundations, the tests for its recognition, and the particular problems it presents in areas including omissions, public authorities, pure economic loss, and negligent misstatement.

1. Historical foundations: from forms of action to the neighbour principle

1.1 The pre-modern position

Before the modern tort of negligence crystallised, obligations to take care arose in narrow, category-specific contexts. The action on the case for negligence existed from the medieval period, but liability depended upon the defendant’s occupation of a recognised status – innkeeper, carrier, surgeon, bailee – rather than upon any general principle (Baker, An Introduction to English Legal History, 5th edn, 2019, ch 19). There was no overarching concept of a “duty of care” owed to the world at large.

The nineteenth century saw the gradual emergence of broader principles. In Heaven v Pender (1883) 11 QBD 503, Brett MR proposed that whenever one person is placed in such a position with regard to another that, if he does not use ordinary care and skill, he would cause danger of injury to that person or his property, a duty arises. This formulation was, however, too broad for its time, and was rejected by the majority of the Court of Appeal.

1.2 Donoghue v Stevenson [1932] AC 562

The modern law of negligence begins with Lord Atkin’s speech in Donoghue v Stevenson [1932] AC 562. Mrs Donoghue consumed ginger beer manufactured by Stevenson which contained a decomposed snail. She had no contractual relationship with the manufacturer. The House of Lords held, by a majority of three to two, that the manufacturer owed her a duty of care.

Lord Atkin’s celebrated “neighbour principle” provided the conceptual foundation:

“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.”

This principle did two things simultaneously. First, it established that a manufacturer of products owes a duty of care to the ultimate consumer – a concrete, category-specific holding. Second, it articulated a broader principle of general application which could be used to reason by analogy in future cases. The tension between these two functions — the specific and the general — has animated the law of duty of care ever since.

2. Expansion and retreat: Anns and its aftermath

2.1 The two-stage test in Anns v Merton London Borough Council [1978] AC 728

Lord Wilberforce in Anns proposed a general two-stage approach to duty of care:

1. First stage: Is there a sufficient relationship of proximity or neighbourhood between the parties, such that, in the reasonable contemplation of the defendant, carelessness on its part may be likely to cause damage to the claimant? If so, a prima facie duty of care arises.
2. Second stage: Are there any considerations which ought to negative, reduce, or limit the scope of the duty, the class of persons to whom it is owed, or the damages to which a breach may give rise?

This approach was expansionist in character. It placed the burden on the defendant to show why liability should not follow from foreseeability. It had profound implications for claims against public authorities (since their statutory functions frequently brought them into a proximate relationship with individuals whose harm was foreseeable) and for claims in respect of pure economic loss.

2.2 The retreat from Anns

The Anns approach rapidly generated difficulties. Lord Oliver of Aylmerton observed extra-judicially that it had been “prayed in aid in subsequent cases to justify claims for damages which have become progressively more divorced from common sense” (Judicial Legislation: Retreat from Anns, Third Sultan Azlan Shah Law Lecture, 1988). The House of Lords began retreating in a series of decisions, of which the most important were:

• Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210
• Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175
• Murphy v Brentwood District Council [1991] 1 AC 398, which overruled Anns on the specific question of local authority liability for defective buildings

The retreat culminated in the decision of the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605.

3. Caparo and the “incremental approach”

3.1 The decision in Caparo Industries plc v Dickman [1990] 2 AC 605

In Caparo, the House of Lords held that auditors of a public company owed no duty of care to individual shareholders making investment decisions, nor to potential investors. Lord Bridge identified what have come to be known as the three requirements for the existence of a duty of care:

1. The damage must be reasonably foreseeable.
2. There must be a relationship of sufficient proximity between the parties.
3. It must be fair, just and reasonable to impose such a duty.

Critically, however, Lord Bridge immediately qualified these “requirements”:

“But it is implicit … that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”

Lord Bridge then adopted an incremental approach, endorsing the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43–44:

“It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories …”

3.2 Misunderstanding and clarification

Despite Lord Bridge’s careful caveats, the so-called “Caparo test” was widely – and, as the Supreme Court would later explain, erroneously – treated as a universal three-stage test to be applied mechanically in every case. This misunderstanding persisted for decades in the lower courts and had particularly significant consequences for claims against public authorities. It was definitively corrected in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (discussed below at section 4).

4. The modern framework: Robinson and beyond

4.1 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Robinson is now the leading authority on the proper approach to duty of care in English law. Two police officers attempted to arrest a suspected drug dealer on a busy shopping street. In the ensuing struggle, they knocked into Mrs Robinson, a frail 76-year-old pedestrian, and all fell to the ground. She suffered injuries. The trial judge found negligence but held that the police enjoyed an immunity. The Court of Appeal upheld the dismissal of the claim, applying what it understood to be the Caparo test.

The Supreme Court allowed Mrs Robinson’s appeal. Lord Reed, delivering the leading judgment (with which Lady Hale and Lord Hodge agreed), laid down the following principles:

1. There is no universal “Caparo test”. The idea that there is a single test which must be applied in every case to determine whether a duty of care exists is “mistaken” (at [21]). As Lord Toulson had pointed out in Michael v Chief Constable of South Wales Police [2015] UKSC 2 at [106], “that understanding of the case mistakes the whole point of Caparo.”
2. Established categories should be applied directly. Where the existence or non-existence of a duty of care has been established by prior authority, the court should simply apply that authority. “It is unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable” (at [26]).
3. The incremental approach applies to novel cases. Only in a “novel type of case, where established principles do not provide an answer,” need the courts go beyond existing principles. In such cases, the characteristic approach is “to develop incrementally and by analogy with established authority” while exercising judgement about whether the recognition of a duty would be “just and reasonable” (at [27]).
4. Public authorities are subject to ordinary principles. “If conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority” (at [33]).
5. The distinction between acts and omissions is fundamental. Public authorities, like private individuals, are generally under a duty of care to avoid causing harm but are “generally under no duty of care to prevent the occurrence of harm” – the omissions principle (at [34]).

4.2 The significance of Robinson

Robinson achieved three important things. First, it restored doctrinal clarity by explaining that Caparo was never intended to lay down a universal test. Second, it confirmed that the proper approach involves identifying the closest analogy in established authority, thereby promoting legal certainty. Third, it firmly rejected any suggestion that the police — or public authorities generally — enjoy a special immunity from negligence liability, while equally confirming that they are not subject to any special or heightened standard.

5. The acts–omissions distinction and public authority liability

5.1 The general rule

The distinction between acts (making matters worse) and omissions (failing to confer a benefit) is, as Lord Reed emphasised in Robinson at [69(4)], “inherent in the nature of the tort of negligence.” The law generally imposes duties not to cause harm; it does not generally impose duties to provide benefits, including the prevention of harm caused by other agencies.

The summary provided by Tofaris and Steel, cited with approval in Robinson at [34], N v Poole Borough Council [2019] UKSC 25 at [76], HXA v Surrey County Council [2023] UKSC 52 at [88], and Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 at [42], identifies the exceptions:

“In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”

5.2 The police cases

The leading authorities on police liability demonstrate the acts–omissions distinction in operation:

Case	Outcome	Reasoning
Hill v Chief Constable of West Yorkshire [1989] AC 53	No duty	Omission: failure to apprehend murderer before he killed again
Michael v Chief Constable of South Wales Police [2015] UKSC 2	No duty	Omission: failure to respond to 999 call in time to save victim
Robinson [2018] UKSC 4	Duty owed	Positive act: police officers’ conduct in effecting arrest caused injury
Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33	No duty (on pleaded facts)	Interference principle recognised but not satisfied on the evidence

5.3 Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33

Tindall is the most recent Supreme Court authority on duty of care in the context of public authority liability and merits particular attention. Police officers attended the scene of a single-vehicle accident caused by black ice. A motorist, Mr Kendall, had been attempting to warn other drivers of the hazard. The police put up a single “police slow” sign, then left the scene, removing the sign. Mr Kendall had departed by ambulance. Approximately an hour later, Mr Tindall was killed in a collision caused by the same ice.

The Supreme Court (Lord Leggatt and Lord Burrows, with whom Lord Hodge, Lord Briggs and Lady Simler agreed) addressed the question of where the dividing line falls between “failing to protect a person from harm” and “making matters worse.” The Court:

1. Endorsed the “interference principle” — that if A knows or ought to know that B needs help, and A has done something to put off or prevent someone else from helping B, then A will owe B a duty to take reasonable steps to give B the help she needs. This was recognised as “a correct statement of English law” (at [56]).
2. Overruled OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897, holding that the coastguard’s misdirection of a Royal Navy helicopter was capable of constituting “making matters worse” under the interference principle.
3. Dismissed the appeal on the facts, because the claimant could not show that the police knew or ought to have known that Mr Kendall had been attempting to warn other motorists. The police saw him as a victim, not a rescuer. There was a “fatal factual lacuna” in the claimant’s case (at [64]).

The decision confirmed that the baseline for judging whether a defendant has “made matters worse” is what would have happened if the defendant had never embarked on the activity at all (at [44(iii)]).

5.4 Other public authorities: children’s services

In N v Poole Borough Council [2019] UKSC 25, the Supreme Court held that a local authority investigating reports of child abuse does not, merely by undertaking that investigation, assume a responsibility towards the children concerned such as to give rise to a duty of care. Lord Reed applied the principles from Robinson and Michael to confirm that, absent an assumption of responsibility or other recognised exception, there is no common law duty on a public authority to protect individuals from harm caused by third parties. This was affirmed in HXA v Surrey County Council [2023] UKSC 52.

6. Pure economic loss and negligent misstatement

6.1 The general exclusionary rule

English law does not, in general, recognise a duty of care in respect of pure economic loss — that is, financial loss which does not flow from physical injury to the claimant’s person or damage to the claimant’s property. The reasons are rooted in the fear identified by Cardozo J in Ultramares Corp v Touche (1931) 174 NE 441, 444: “liability in an indeterminate amount for an indeterminate time to an indeterminate class.”

The exclusionary rule was confirmed in Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 and applied in Murphy v Brentwood District Council [1991] 1 AC 398, where the House of Lords held that the cost of repairing a defective building was pure economic loss and not recoverable in negligence.

6.2 Hedley Byrne and negligent misstatement

The most important exception to the exclusionary rule is the principle established in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The House of Lords held that where a person possessed of a special skill makes a statement or gives advice in circumstances where he knows, or ought to know, that an enquirer is relying on his skill and judgment, a duty of care arises. Lord Morris described the principle as arising from an assumption of responsibility – a concept which has since become central to the law.

The Hedley Byrne principle was significantly extended in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, where Lord Goff held that the assumption of responsibility principle is “not confined to statements but may apply to any assumption of responsibility for the provision of services” (at 180). This gave rise to a concurrent duty in tort even where the parties were in a contractual relationship.

6.3 The Caparo limits on the Hedley Byrne principle

Caparo itself was a negligent misstatement case. Lord Bridge identified the essential features required for a duty of care in such cases: the defendant must know that the statement will be communicated to the claimant (individually or as a member of an identifiable class), specifically in connection with a particular transaction or class of transactions, and that the claimant would “very likely” rely on it for deciding whether to enter that transaction. This remains the governing test for auditors’ liability and for many professional negligence claims arising from the provision of information or advice.

6.4 Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181

In Customs and Excise v Barclays Bank, the House of Lords held that a bank which had been notified of a freezing injunction over its customer’s accounts owed no duty of care to the party which had obtained the injunction. Lord Bingham identified three tests which had been used at various times to identify a duty of care in economic loss cases — the Caparo threefold test, the assumption of responsibility test, and the incremental test — but noted that “none of them is ideal” and that the court should consider all available approaches and reach a conclusion which is “just and reasonable” (at [7]–[8]). Lord Hoffmann and Lord Mance similarly endorsed the principle that no single test is determinative.

7. Duty of care in relation to building safety: URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21

The Supreme Court’s decision in URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21 is a significant modern authority on the scope of the duty of care owed by professional consultants to developers. BDW, a major developer, engaged URS to provide structural engineering designs for high-rise residential developments. Following the discovery of serious structural defects, BDW carried out extensive remedial works and brought a negligence claim against URS, even though BDW no longer owned the properties and had no enforceable liability to leaseholders at the time.

The Supreme Court (Lord Hamblen and Lord Burrows, with whom Lord Lloyd-Jones, Lord Briggs, Lord Sales and Lord Richards agreed) held:

1. There is no rule of law that remediation costs voluntarily incurred are outside the scope of the duty of care owed or too remote.
2. Under section 1(1)(a) of the Defective Premises Act 1972, a professional consultant owes a duty to any person, including a developer, to whose “order” a dwelling is being built.
3. Section 135 of the Building Safety Act 2022, which retrospectively extended limitation periods for DPA claims to 30 years, applies to negligence and contribution claims that are dependent on the limitation period in the DPA.

Lord Leggatt, in a concurring judgment, emphasised that BDW’s decision to carry out remedial works was made under “compelling” commercial, reputational and moral pressure, and was plainly reasonable. The costs were foreseeable and within the scope of URS’s duty. This decision is of major practical importance in the post-Grenfell building safety landscape.

8. Psychiatric harm and the duty of care

The duty of care in respect of psychiatric harm raises distinctive problems, which have been the subject of extensive judicial attention.

8.1 Primary and secondary victims

The law distinguishes between primary victims (those who are directly involved in the event as participants) and secondary victims (those who witness injury to others). For primary victims, the ordinary rules of foreseeability apply: Page v Smith [1996] AC 155. For secondary victims, the restrictive control mechanisms laid down in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 require:

• A close tie of love and affection with the primary victim;
• Proximity in time and space to the accident or its immediate aftermath;
• Perception of the accident or its aftermath with one’s own unaided senses.

These requirements were confirmed and applied in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (denying recovery to police officers at Hillsborough who were not in the zone of physical danger).

8.2 Recent developments

In Paul v Royal Wolverhampton NHS Trust [2024] AC 279, the Supreme Court declined to relax the Alcock control mechanisms. Lord Burrows, delivering the judgment of the Court, held that the requirement of temporal and spatial proximity to the accident or its immediate aftermath could not be dispensed with merely because a medical negligence claim involved a delayed manifestation of injury. The Court acknowledged the criticisms of the secondary victim framework but held that any reform was a matter for Parliament.

9. Assumption of responsibility: a unifying principle

The concept of assumption of responsibility has emerged as perhaps the most important single organising principle in the modern law of duty of care. It plays a role across multiple domains:

• Negligent misstatement: Hedley Byrne v Heller [1964] AC 465
• Provision of services: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
• Omissions by public authorities: Michael [2015] UKSC 2 (exception recognised but not made out)
• Professional relationships: doctors, solicitors, accountants, and valuers routinely owe duties of care on this basis

In Spring v Guardian Assurance plc [1995] 2 AC 296, the House of Lords held that an employer providing a reference assumes a responsibility to the former employee for the accuracy of that reference. In White v Jones [1995] 2 AC 207, the House of Lords extended the Hedley Byrne principle to hold that a solicitor who negligently delays the execution of a will owes a duty to the intended beneficiary — despite the absence of any contractual relationship.

The concept remains, however, somewhat protean. As Lord Steyn observed in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, the test is objective: the question is not whether the defendant actually assumed responsibility, but whether the circumstances are such that the law deems responsibility to have been assumed.

10. A framework for analysis

For practitioners and students, the following analytical framework may assist in approaching duty of care problems:

Step	Question	Key authorities
1. Established category?	Does the case fall within a recognised duty situation?	Donoghue v Stevenson; Robinson at [26]
2. If not, close analogy?	Is it sufficiently analogous to an established category?	Robinson at [27]; Caparo at 618
3. If truly novel	Apply incremental reasoning: foreseeability, proximity, and whether it is fair, just, and reasonable	Caparo; Robinson at [27]; Michael
4. Acts or omissions?	Did the defendant make matters worse, or fail to confer a benefit?	Robinson at [34]; Tindall [2024] UKSC 33
5. Pure economic loss?	Is the loss purely financial? If so, can the claimant invoke Hedley Byrne / assumption of responsibility?	Hedley Byrne; Caparo; Henderson v Merrett
6. Public authority?	Ordinary principles apply: no special immunity, no special enhancement	Robinson at [33]; N v Poole [2019] UKSC 25
7. Psychiatric harm?	Primary or secondary victim? If secondary, do Alcock controls apply?	Alcock; Paul v Royal Wolverhampton NHS Trust [2024]

11. Conclusion

The law of duty of care in England and Wales has, over the past century, moved through three broad phases. The first, inaugurated by Donoghue v Stevenson, established the general principle that the law of negligence is not confined to closed categories. The second, dominated by the Anns two-stage test, pushed the boundaries of liability to a point which the common law could not sustain. The third, beginning with Caparo and reaching maturity in Robinson, has restored a principled balance between certainty and flexibility.

Today, the position is as follows. Where an established category of duty exists, the court applies it. Where no established category is directly in point, the court reasons incrementally, by analogy with decided cases, and exercises judgement about whether the recognition of a duty would be just and reasonable. The distinction between acts and omissions remains fundamental. Public authorities are subject to the same principles as private individuals. Pure economic loss is recoverable only within the framework established by Hedley Byrne and its progeny. And the assumption of responsibility, a concept of remarkable versatility, continues to provide the most important single basis upon which new duties of care are recognised.

The Supreme Court’s recent decisions – Tindall [2024] on the interference principle, URS v BDW [2025] on the duty owed by consultants to developers in the building safety context – demonstrate that the law remains dynamic. But it is a dynamism constrained by principle, by precedent, and by the fundamental insight, as true today as when Lord Atkin articulated it in 1932, that the law of negligence must at once protect those who are foreseeably harmed by carelessness and avoid imposing obligations of indefinite scope upon those who undertake activities in the world.

Related: Duty of care cases

Secondary sources and additional reading:

• Clerk & Lindsell on Torts, 24th edn (Sweet & Maxwell, 2023), chapters 7–9
• Winfield & Jolowicz on Tort, 20th edn (Sweet & Maxwell, 2020), chapters 4–5
• Lunney, Nolan & Oliphant, Tort Law: Text and Materials, 7th edn (OUP, 2023)
• Steel, S, “Rationalising omissions liability in negligence” (2019) 135 LQR 484
• Tofaris, S & Steel, S, “Negligence liability for omissions and the police” (2016) 75 CLJ 128
• Stanton, K, “Professional negligence: A duty of care methodology in the 21st century” (2006) 22(3) Professional Negligence 135
• Nolan, D, “Deconstructing the duty of care” (2013) 129 LQR 559
• McBride, N & Bagshaw, R, Tort Law, 7th edn (Pearson, 2024)
• Baker, J H, An Introduction to English Legal History, 5th edn (OUP, 2019)

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