Lisa Winnington, A Level Law Subject Support Coordinator

One of the most common areas of confusion for Cambridge OCR A Level Law students studying negligence is the current status of Caparo v Dickman and its relevance to establishing the duty of care element of negligence. 

I’ll explain why Caparo still matters, how it fits into the development of duty of care, and how it should (and should not) be used in exams.

What do we mean when we refer to ‘Caparo’?

From 1990 to 2018, Caparo referred to a standard three-stage test used to establish the existence of a duty of care based on reasonable foreseeability, proximity and fairness. We can refer to this as the Caparo three-stage test.

In 2018, the case of Robinson v Chief Constable of West Yorkshire stated that Caparo had been misunderstood and was never intended to be applied as a standard three-stage test to determine a duty of care in all negligence cases. Robinson explained that, properly understood, Caparo had been intended to introduce a more restricted incremental method of establishing a duty of care, shifting away from the broad, two-stage approach set out in Anns v Merton LBC.

By returning to this intended incremental approach to determining a duty of care, Robinson redefined Caparo and we can refer to this as the Caparo incremental approach.

So, Caparo is capable of meaning two things:

• a three-stage test to establish a duty of care used between 1990 and 2018
• and an incremental approach to establishing a duty of care as redefined in Robinson.

Why is the ‘Caparo’ three-stage test still on the specification?

The Caparo three-stage test is included in the Teachers’ Guide for H418/02 on pages 22/23 under the heading “Learners should be able to explain the development of the concept of duty of care”. Even though the Supreme Court has rejected the Caparo three-stage test as a single definitive test, it remains relevant to the story of the “development” of duty of care and always will.

The key points students must understand are:

• Since Robinson in 2018, the Caparo three-stage test has no relevance or application to problem questions - even if it involves a novel case*
• The Caparo three-stage test is, however, relevant to the historical and conceptual development of duty of care which could arise in an essay question

Just like Donoghue v Stevenson and Anns v Merton LBC, the Caparo three-stage test forms part of the legal narrative showing how courts have attempted to define when a duty of care should exist.

Has the ‘Caparo’three-stage test been rejected?

Yes, the Supreme Court has rejected the Caparo three-stage test as a single, universal tripartite test. However, it did not reject its established principles. In Robinson, the Supreme Court confirmed that the law of negligence does not operate according to one general test for duty of care. Instead, courts should use an incremental approach and this can include consideration of concepts such as reasonable foreseeability, proximity and considerations of fairness, justice and reasonableness which remain as fundamental principles that courts may consider, but not as part of a standard three-stage test.

The ‘Caparo’ incremental approach as set out in ‘Robinson’

Rather than applying the Caparo three-stage test mechanically to every case where a duty of care must be established, the modern understanding set out in Robinson involves applying a redefined version of Caparo. This is known as the incremental approach, where the court:

• starts by considering what has been decided previously and following existing precedents and established principles, or,
• in cases where the question whether a duty of care arises has not been previously decided, courts should consider the closest analogies in the existing law and develop the law incrementally (case by case).

This approach was set out in paras 21 to 30 of the Robinson judgment.

How Caparo fits into the “story” of duty of care

For A Level purposes, Caparo should be understood as part of a timeline:

1. Donoghue v Stevenson (1932)
   Introduced the neighbour principle, establishing foreseeability and proximity as elements of a general test which could be applied in all cases.
2. Anns v Merton LBC (1978)
   Created a broader two stage test, expanding liability through consideration of policy.
3. Caparo v Dickman (1990)
   See above.
4. Robinson v Chief Constable (2018)
   Clarified that a duty of care is either based on existing authorities and established principles or, where novel, developed incrementally, case by case.

Caparo and exam technique

When students should use the Caparo three-stage test

The Caparo three-stage test is only relevant when:

• Answering essay questions on the historic development of duty of care

When students should NOT use the Caparo three-stage test

The Caparo three-stage test should not be used in:

• Any problem questions

When students should use the Caparo incremental (or Robinson) approach

The Caparo incremental (or Robinson) approach is relevant when:

• Answering any problem question involving established duties (e.g. drivers to passengers and other road users, employers to employees, manufacturers to consumers, doctors to patients etc), but noting that (*) exam problem questions will not feature novel cases
• Answering essay questions on the historic development of duty of care

Key takeaways for students

The Caparo three-stage test is still on the specification:

• It is still important for essays
• Its three elements remain legally relevant as part of the incremental approach
• It is no longer a universal tripartite test for establishing a duty of care
• It should never be used in exam problem questions.

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About the author

Lisa is a Subject Support Coordinator and has worked for Cambridge University Press & Assessment in various roles since 2000. Lisa is responsible for a range of subjects including food, citizenship, sustainability and the Extended Project Qualification.