BL-2022-002117 - [2025] EWHC 2794 (Ch)

The tort of negligence is constituted by establishing a legal duty of care owed by the defendant to the claimant to protect the claimant from damage of the kind which has been suffered by the claimant as a foreseeable consequence of a breach of that duty.

It is common ground that the fact that the defendant is a public authority is irrelevant in this case to the question of whether or not there is a claim in negligence. Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles; N v PooleBC [2019] UKSC 25, [2020] AC 352 at [64]. The Defendant does not contend that there is legislation that requires such a departure in this case.

The categories of negligence are not closed but there are now established situations in which a duty of care is recognised and there are established principles for determining liability.

If case law has established that a particular situation gives rise (or does not give rise) to a duty of care, that is dispositive; Lord Reed in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736 at [26]. As Lord Browne – Wilkinson explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 559-560: “Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company… that decision will apply to all future cases of the same kind”.

The same point applies to established principles for determining liability; Lord Reed in Robinson at [26]. If there are established principles for determining liability, the application of those principles is dispositive, and there is no room to depart from that by reference to some vaguer concept of justice and fairness.

It is only in a novel case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised; Lord Reed in Robinson at [27]. Faced with a novel situation:

“the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is “fair, just and reasonable”.

In other words (at [29]):

“In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.”