Caparo test CASES

In English negligence law, the Caparo test describes the structured inquiry used – mainly in novel situations – to decide whether a duty of care should be recognised. It asks: (i) was harm reasonably foreseeable; (ii) was there sufficient proximity between claimant and defendant; and (iii) is it fair, just and reasonable to impose a duty? The test is not a universal checklist for every case. In well-established categories (such as road users, employer–employee, doctors–patients), duty is taken from authority without re-running policy.

Definition and principles

The Caparo approach guides incremental development of the law. Foreseeability screens out freak risks. Proximity asks whether the relationship—relational, temporal, spatial or causal—justifies a duty (often shown by assumption of responsibility, control, vulnerability, or direct dealings). The final stage considers coherence with existing law and policy: would recognising a duty fit with precedent and with adjacent regimes (contract, statute, compensation schemes), or would it open indeterminate liability or chill beneficial activity? The analysis is principled rather than discretionary; courts avoid free-wheeling policy.

When is it used?

Caparo is used when the court faces a novel duty question or a proposed extension beyond recognised categories: e.g., new forms of pure economic loss, liability for omissions or third-party wrongdoing absent control or assumption of responsibility, or claims against public authorities that would cut across statutory frameworks. By contrast, where a duty category is settled, the court applies it and moves on to breach and causation.

Common examples

• Pure economic loss: duties are exceptional outside established “assumption of responsibility” relationships (adviser ↔ advisee). Disclaimers and context can negate proximity.
• Omissions and third-party acts: no general duty to prevent harm by others unless the defendant created the danger, controlled the source, or undertook to protect the claimant.
• Public authorities: ordinary negligence principles apply, but the court asks whether a private-law duty coheres with the statutory scheme. Duties are more readily found where the authority created a risk or assumed responsibility to an identifiable person; they are resisted where recognition would police broad policy or resource choices.
• Psychiatric injury (secondary victims): proximity is tightly controlled (close ties, temporal and spatial proximity to an accident/external event, direct perception), reflecting policy at the third stage.

Legal implications

• Incrementalism: new duties are recognised by analogy with existing ones, not by abstract foreseeability alone.
• Separation of issues: the existence of a duty (Caparo) is distinct from scope of duty (what risks the duty covers), breach, causation and remoteness. In professional advice cases, scope-of-duty analysis can limit recovery even where a duty exists.
• Coherence with statute and contract: courts avoid duties that undermine carefully calibrated legislative schemes or contradict contractual risk allocation between sophisticated parties.
• No general exemptions: public authorities have no blanket immunity, but the duty analysis filters claims to those consistent with public law and statutory design.

Practical importance

When pleading a novel duty, identify concrete proximity factors (assumption of responsibility, control, vulnerability, knowledge of a defined class) and explain why recognition would be consistent with precedent and statutory context. Define the proposed duty narrowly to avoid indeterminate liability. When resisting, show how the claim duplicates or cuts across other regimes, rests on mere foreseeability, or would open unbounded liability for omissions or third-party acts. In adviser and information cases, address both duty and scope of duty from the outset.

Relevant case: Caparo Industries PLC v Dickman [1990] UKHL 2

See also: Duty of care; Proximity; Fair, just and reasonable; Assumption of responsibility; Omissions; Public authorities; Pure economic loss; Scope of duty; Standard of care.