From: Jason Neyers <>
To: ''
Date: 09/12/2009 19:18:06 UTC
Subject: ODG: Novel Duties of Care

If I don't have a general duty to perform even an easy rescue, how could I have a general duty maintain insurance on your behalf?  Where do these arguments come from?
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

James Lee wrote:

Dear Colleagues,


The English Court of Appeal has today handed down its decision in Glaister & Ors v Appelby-In-Westmorland Town Council [2009] EWCA Civ 1325, a negligence claim. The Court considers the criteria for finding a duty of care in a manner which may or may not be of assistance to law students (and others). The restrictive approach to “special relationship” cases is followed, justifiably in this case. But there are some observations of interest.


The claim was brought by Mr Glaister (and his wife and daughter) following an accident at a fair, in which Mr Glaister tried to catch the lead of a runaway horse. He was kicked in the head by the horse, and he suffered serious injuries, being left permanently disabled and therefore losing earning power. It was not known who owned the horse. At [3], Toulson LJ (with whom Jacob LJ and the Master of the Rolls agreed) explains the claim


“It was originally alleged on his behalf that the accident was caused by negligence on the part of the Town Council, in particular, in allowing horses to be tethered in close vicinity to other horses racing along the highway and failing to ensure that the tethered horses were properly supervised, but that part of the claim was abandoned. The action proceeded on an alternative claim that the Town Council negligently failed to take proper care to see that public liability insurance was arranged which would have covered the circumstances of the accident.

The broader duty argued for, that the Council owed a duty of supervision, was considered, but no such duty was found:

  1. A defendant, D, is not ordinarily liable to a claimant, C, for personal injury or physical damage caused by the negligence of a third person, T, merely because D could have foreseen and prevented it. Something more is required to place on D a duty to protect C from the consequences of foreseeable negligence on the part of T. The reasons for requiring more are partly to do with the nature of our system of tort and the concept of blame which underlies it, i.e. matters of legal policy, and partly pragmatic.
  1. The general policy of the law does not extend to holding D legally to blame for injury to C caused by the negligence of T on the ground that D could have prevented it. The moral tenet that you shall love your neighbour as yourself, and thus protect him from harm which you can foresee he may suffer from a third person's fault, has not been converted into a legal principle. As a matter of generality, to hold a person liable to a victim for injury for which the defendant was not directly to blame, but was caused by the negligence of a third person which the defendant could have foreseen and prevented, would shift the basis of tort liability towards a system for the transfer of losses resulting from injuries not merely caused by the default of the defendant but which a defendant might have been able to prevent. The practical consequences of such a policy shift would be potentially very far reaching.
  1. I emphasise that this is no more than a starting point, albeit an important one. There are many cases where D may be liable to C for injury caused by the negligence of T, but these are usually cases where either a particular relationship between the claimant and defendant is such as to place the defendant under a duty of care for the safety of the claimant or a particular relationship between the defendant and the third person is such that the defendant should carry a responsibility to protect others against the conduct of the third person. Examples of the first category are cases where the defendant is an occupier of land and the claimant is a lawful visitor, and cases whether the defendant is the employer of the claimant. An occupier of land owes a general duty of care for the safety of lawful visitors, and this will include responsibility to see that visitors are reasonably safe from activities by a third person which the occupier permits to be carried out on his land. Similarly an employer owes a general duty for the safety of his employees, including safety from the foreseeable behaviour of other employees. Cases where the relationship between the defendant and third person is such as to give rise to liability to a claimant for damage caused by a third person include cases where the third person is an employee or agent of the defendant, who is held responsible for his conduct, and cases where the defendant has a quasi-parental responsibility for the acts of the third person, such as Home Office v Dorset Yacht Co Limited [1970] AC 1004 (where prison officers took young offenders on an outing and allegedly failed properly to supervise them).

The key issue was therefore: “Was D under a duty of care to ensure that appropriate public liability insurance in respect of negligent acts or omissions by participants in the Fair was in place?". Toulson LJ describes this as “novel claim” (at [50]). Noting difficulties with the decision in Gwilliam [2002] EWCA Civ 1041, Toulson LJ concluded:

  1. These words needs to be emphasised because there is sometimes a tendency (as the present case shows) to pluck out the words "fair, just and reasonable" as if they provide some comprehensive touchstone. In itself, the expression means little more than that the court should only impose a duty of care if it considers it right to do so. The various speeches in Customs & Excise Commissioners v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181 underline the point that the "threefold test" provides no straightforward answer to the question whether in a novel situation a party owes a duty of care (Lord Bingham at 6, Lord Hoffmann at 35-36, Lord Rodger at 53, Lord Walker at 71 and Lord Mance at 93). In considering whether there is sufficient "proximity" to make it just and reasonable to impose a duty of care, the courts examine carefully the nature of the relationship between the parties and begin by considering whether it is reasonably analogous to other cases in which such a duty has been recognised. The court is looking to see whether there is "that special relationship of proximity which is required to give rise to the duty of care" to protect the claimant from economic loss (using the language of Lord Oliver in Caparo at 650F) – which is another way of framing the question posed by Lord Devlin in Hedley Byrne "Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty?".
  1. The present case does not resemble any other category of case in which liability has been established, so as to found an argument by analogy. None of the factors exist which have lead to the imposition of a duty of care not to cause economic loss in other cases, such as an assumption of responsibility by the defendant (Hedley Byrne) or the provision of a professional service to the claimant (Henderson v Merrett) or the provision of advice about a transaction involving the claimant in the knowledge that the claimant would be likely to rely on it (Smith v Bush [1990] 1 AC 831).
  1. For a duty of care to arise, there needs to be something particular about the relationship between the defendant and the claimant, in relation to some particular transaction or activity likely to have economic consequences for the claimant, such that the claimant can properly expect to be entitled to rely on the defendant to safeguard him from economic harm likely to result from want of care on the part of the defendant. This need is reflected by the usage of the words "special duty" or "special relationship".
  1. There was no such relationship in the present case between the Town Council and the many tens of thousands of members of the general public, including the claimants, who visited the fair.

  1. Looking at the matter as one of general principle, if D had no duty to protect C against the physical consequences of an accident caused by the negligence of T, I would not regard it as just and reasonable to impose on D the more remote duty to protect C against the economic consequences of C being unable to enforce a judgment against T.

Best wishes,





James Lee
Director of the LLB Programme
Birmingham Law School
University of Birmingham
B15 2TT, United Kingdom
Tel: +44 (0)121 414 3629