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Rules vs Cases in Tort

Updated: Feb 16, 2022


In the theoretical study and practice of tort law, there are certain pre-established legal rules and cases which have set the precedent for future cases to follow and refer to. Two of such rules are the Neighbour Test as established in Donoghue v Stevenson, and the Caparo Test as set out in Caparo v Dickman. This article will outline the origins of the Neighbour and Caparo Tests, and assess whether tests or case law should be used in tort cases where the facts do not necessarily align fully with the factual and/or legal aspects of Donoghue v Stevenson, Caparo v Dickman, or other past tort cases.

Donoghue v Stevenson [1932] UKHL 100

In Donoghue v Stevenson, Mrs Donoghue’s friend bought her a ginger-beer from Wellmeadow Cafe in Paisley, Scotland. She consumed about half of the bottle, which was made of dark opaque glass, when the remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a snail floated out, causing her alleged shock and severe gastroenteritis. In judging this case, Lord Atkin’s Neighbour Test for establishing a duty of care required that the claimant prove: (1) Reasonable foresight of harm, and; (2) A relationship of proximity and closeness between the tortious act and the claimant.

Caparo Industries Plc v Dickman [1990] 2 AC 605 (House of Lords)

Lord Bridge held that, through the Caparo Test, the claimant must establish that: (1) Harm was reasonably foreseeable; (2) There was a relationship of proximity, and; (3) It is fair, just, and reasonable to impose a duty of care. This third point is an addition to the Neighbour Test, perhaps a note acting as a policy consideration to restrict claimants from imposing a duty or a heavier duty than would have been proven otherwise. It must be noted that, in the Caparo Test, it is the claimant who must put forward policy reasons for imposing liability, and all three of the requirements of the Caparo Test must be met. Where there is an established ground of liability such as personal injury or property damage, there is no need to apply the third stage of the Caparo Test. Thus, there is an incremental approach whereby the claimant may only bring their action where they can establish an existing duty situation.

Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502

Another significant case to be recognised in the history of tort law is the Spartan Steel case. Here, the defendants were responsible for digging up a road outside the plaintiff’s smelting factory. As a result of their negligence when carrying out this task, they inadvertently severed a power supply under the road, resulting in a loss of power to the claimant’s factory. The claimants suffered a number of forms of damage as a result of this, including loss of profits as a consequence of the factory being non-operational for the period while it was without power, and physical damage to the metal which was in the process of being smelted at the time the power was lost. The Court of Appeal held that even where a claimant is clearly owed a duty in respect of physical damage to property, any ‘pure economic loss’ suffered in addition to physical damage are unrecoverable as either too remote, or outside the scope of the duty of care. However, economic losses consequential on the damage to the metal in the melt (i.e. lost profits on the damaged metal) were recoverable. The result of this was therefore that the damage to the metal which was damaged due to the smelting process being cut short was recoverable (as were the lost profits from the sale of this metal). However, the loss of profits from further melts which could have been completed during the time the factory was without power could not be recovered as this was ‘pure’ economic loss. It must also be noted that ‘pure economic loss’ is defined as the financial damage suffered as the result of the negligent act of another party which is not accompanied by any physical damage to a person or property, hence a worth incurred without any physical injury to any asset of the claimant.

When Should The Tests Be Applied?

Whilst Donoghue v Stevenson and Caparo v Dickman assess whether consumers should be protected or not, the Neighbour and Caparo Tests do not necessarily establish as successful a test for setting the boundaries of when and where consumers should be protected or not. Thus, there is no better place to find the guidelines to creating such boundaries than recent cases which have begun to move away from the Neighbour and Caparo Tests.

The Caparo Test, being an updated extension of the Neighbour Test, presents a three-stage test of proving a party’s duty of care to another. In the 1964 case of Hedley Byrne v Heller, Lord Devlin explained that the “special relationship” between two parties in tort was one of close proximity equivalent to a contractual relationship. Thus, if there is no contractual relationship between any two parties, counsel can argue that the relationship of proximity between the claimant and the defendant was far from close, and as all three requirements of the Caparo Test must be satisfied to prove a duty of care, the defendant does not owe a duty to the claimant in a given case.

Further, in Caparo v Dickman, Lord Bridge himself pointed out that the Caparo Test was not intended to be a blueprint for judging cases in tort. This was supported by Lord Toulson in Michael v Chief Constable of South Wales Police [2015] that “the quest for a universal formula to decide whether a duty of care is owed has been elusive.” The concept of “proximity” is not detailed and specific enough to allow the Caparo Test to be used in practical situations. This is precisely because every case is factually and legally different in one way or another from each other, and it is unreasonable to apply a single vague and broad test to all cases.


The objective of the Caparo Test was to repudiate the idea that there is a single test which can be applied to all cases to determine whether a duty of care exists, and to instead adopt an incremental approach based on considering the closest analogies to existing law and to avoid establishing rigid rules and tests which would inevitably come into dissonance with future cases which do not factually align perfectly with such hypotheticals. Therefore, despite the importance of the Neighbour and Caparo Tests as foundations on which much of tort law has been built and studied, it is equally important to recognise that human behaviour cannot always be categorised into two to three criteria under which punishment or remedy is given.


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