Duty of Care in Armed Forces, Police, and Domestic Violence Cases

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Criminal Law

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While establishing a suit for negligence, it is important that the party against whom
the suit is filed must owe a duty of care. Without a valid duty of care, a person cannot
be held liable under a suit for negligence. In the case of armed forces, the police and
domestic violence, the method used by the court to determine the duty of care of the
parties are different.1 There are different common law judgements given by the court
that are focused on identifying the duty of care in parties, especially in the case of
armed forces, the police or domestic violence. The establishment of a duty of care is
difficult for the courts to establish in these scenarios due to which they rely on
previous common law judgements to ensure that they impose the liability of
negligence on the parties in a dispute.2 The objective of this essay is to evaluate the
concept of duty of care and evaluate the judgement of cases relating to armed
forces, the police, and domestic violence to determine how the court determines
whether a party owes a duty of care. This essay will evaluate the relevance of the
concept of duty of care in negligence and analyse the key issues faced by the court
while identifying this element.
In the case of tort law of negligence, the duty of care is a key element without which
the court finds it difficult to impose legal obligation on a party. This duty is defined as
an obligation of a party which is recognised by the court to ensure that they avoid
engaging in practices or take the appropriate standard to avoid unreasonable risk of
danger to others.3 The person who owes this duty has to make sure that reasonable
care is maintained through their acts or omissions to avoid foreseeable injuries to
others. In this regards, Donoghue v Stevenson4 is a relevant case. This case
provided the provisions for establishing the principles for modern law of negligence.
In this case, the court recognised the importance of the duty of care in a negligence
suit without which a legal liability cannot be imposed on the defendant. In this case,
the court pointed out two significant factors of the duty of care which are recognised
in the ‘neighbour test’ which include proximity relationship between parties and
reasonable foreseeability of the injury.5 The court provided that a person owes a duty
1 Arthur Best, David W Barnes and Nicholas Kahn-Fogel, Basic tort law: cases, statutes, and
problems (Wolters Kluwer Law & Business 2018).
2 Saul Levmore and Catherine M Sharkey, Foundations of tort law (LexisNexis 2012).
3 Julian Valasco, ‘A Defense of the Corporate Law Duty of Care’ (2014) 40 J. Corp. L. 647.
4 (1932) AC 562
5 Allan C Hutchinson, ‘Some What If Thoughts: Notes on Donoghue v Stevenson’ (2013) 51 Osgoode
Hall LJ 701.

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of care towards another party when there is a proximity relationship between the two
and the risks are reasonably foreseeable.
However, the concept of duty of care has undergone refinement due to a number of
common law decisions and cases involving parties such as armed forces and the
police. The application of ‘neighbour test’ is not suitable in many scenarios due to
which the court has recognised other tests to determine the element of duty of care.
A good example is the ‘Caparo test’ which was established by the court in the
judgement of Caparo Industries Plc v Dickman.6 As per this test, there are three
elements which must be considered by the court while determining the duty of care
of a party. These elements include reasonable foreseeability of risks, the relationship
of proximity and it must be just, fair and reasonable for the court to impose a duty of
care on the parties. However, the recognition of the duty of care is difficult in the
case of a police officer that engages in police misconduct. Police misconduct is
referred to any action which is performed by a law enforcement officer that is illegal,
unconstitutional or unethical based on the employment guidelines. Police misconduct
and negligence has become a major issue in the era where police administrators are
advocating closer with citizens in their communities in a number of scandals such as
illegal drug use, corruption, brutality, and others.7
The police officers cannot be sued by people for negligence because they have a
special position in public service and under the law which provides them protection
from negligence lawsuits. Since the police officers did not owe a duty of care, it
becomes difficult for courts to hold them liable for negligence.8 The court provided in
the case of Hill v Chief Constable of West Yorkshire9 that although the police can be
held liable for torts towards a person who suffered an injury directly as a result of
their act or omission; however, they did not owe a general duty of care. It was held
by the court in this case that it is in the interest of the public that the police offers did
not owe liable under negligence claims. Therefore, courts use different methods in
order to define and establish the duty of care for police officers. The principle of the
police did not owe a duty of care was untouched until 1998; however, the parties of
6 [1990] 2 AC 605
7 Charles F Sabel and William H Simon, ‘The Duty for Responsible Administration and the Problem of
Police Accountability’ (2016) 33 Yale J on Reg 165.
8 Andrew Robertson, ‘Policy-based reasoning in duty of care cases’ (2013) 33 (1) Legal Studies 119-
140.
9 [1987] UKHL 12