Is there a Duty of Care?

How do the Courts in England and Wales decide when a duty is owed by the defendant to the claimant? How should they decide these issues? To what extents should a decision be purely a matter of principle, as opposed to policy? The aim of the essay is to evaluate the current law on how a duty of care should be decided. The assignment will discuss what constitutes a duty of care within the tort of negligence. First, i will discuss why previous attempts, such as those demonstrated in Anns v Merton1 of establishing a duty failed, following a critical analysis of the current law in Caparo v Dickman2.

The essay will subsequently discuss possible modifications in the law using academic writers, such as Christian Witting3. This will be followed reasons as to why the law should focus largely on policy rather than principle when establishing a duty of care, using iconic cases such as Weller & Co v Foot and Mouth Disease Research Institute4. A tort is a civil wrong which is committed against an individual rather than the state. The individual’s interests can be protected through compensation for the infringement of a certain protected interest.

Although there are many torts in which a duty of care is an element required in order to make a successful claim, such as Occupier’s Liability5, for the purposes of the essay, the duty of care in the categories of negligence will be of primary focus. The elements of negligence under Tort Law are the existence of a legal duty of care, a breach of that duty, whether the breach directly caused the damage and finally, whether the damage was foreseeable. The first element must be satisfied in order to maintain a successful claim.

A duty of care is, essentially, the relationship between the defendant and the claimant by which there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant. One of the leading cases in this area of law is undoubtedly Donoghue v Stevenson6. In this case there was no binding contract between the two parties, however liability was found due the fact that the product sold caused material physical damage to the claimant due to the negligence of the defendant. Here, the already established manufacturer, consumer relationship applies.

Though, Lord Aitkin7 then formulated the “neighbour principle”, which states that one should adopt a reasonable care to avoid acts or omissions that could be reasonably foreseen to harm your ‘neighbour’. This principle limits the scope of future claims on the grounds of what the courts regard as acceptable. Only when this principle could be applied, could there be a duty of care. In the renowned case of Anns v Merton8, Lord Wilberforce suggested the two stage test by which to establish whether a duty of care existed.

It must be reasonably foreseeable that the claimant would suffer some kind of harm if the defendant did not take reasonable steps to see that he did not come to any harm. If it was forseeable, then there must not be any reasons of public policy to reject a duty of care. 9 Anns v Merton10 initially proved popular with the courts, but has now been disowned, largely thanks to the efforts of Lord Keith of Kinkel. 11 This was due to the fact that the two stage test made the law on when one person will owe a duty of care to another too uncertain12.

Furthermore, the Courts were too prepared to find that the second stage of the two-stage test was satisfied in a given case. Consequently, the danger arose that the courts would find that one person owed another a duty of care in a given situation using the test even though it was in conflict with the public interest. In response, the courts suggested a number of modifications that could be made to the test for determining whether a duty of care was owed. 13

As a consequence, the existence of a duty of care is now established in the Courts of England and Wales using the Caparo v Dickman test, 14 by which Lord Bridge formulated three stages which must be satisfied in order for a duty of care to exist. These are; the damage to claimant is foreseeable, there must be a relationship of proximity or neighbourhood between the claimant and the defendant and the court considers it fair, just and reasonable that the law should impose a duty15. The first two stages of the test are relatively straightforward, and follow almost identically to the Anns v Merton Test.

16 However, the last stage of the test gives the judges a certain amount of discretion as to what they may deem fair, just and reasonable. They therefore, have the power to control duty as to what they think is acceptable. However, there are many factors within the test which may not be so apparent at first glance, that must be acknowledged. 17 It should be clarified here that an act makes someone worse off, whereas an omission fails “to make someone better of”18. However simple this concept may seem, there have been cases where it has been difficult to apply.

19 The courts will only usually find that the defendant owed the claimant a duty of care not to omit if there was a “special relationship” between them. 20 The case involving Hill v Chief Constable of West Yorkshire21 is a good example of this. Here, the notion that the Courts seem to be more prepared to find that a duty of care was owed in an ‘act’ case as opposed to an ‘omission’ case is supported22. However this case was decided under the former law of Anns v Merton23 as opposed to the current law in Caparo v Dickman. 24

If it was reasonable for the defendant to act, or omit to act in a particular way, the courts are reluctant to apply a duty of care. This is illustrated clearly by Lord Hobhouse in the case of Tomlinson v Congleton, 25 where he states, “It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless dew to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. ” 26 The courts will also consider the seriousness of harm that the claimant could potentially suffer as a consequence of the claimant’ actions.

If it is reasonably foreseeable that the claimant would suffer physical injury or damage to property through the defendant’s actions, then the Courts are unlikely to hesitate in establishing a duty of care. 27 However, the element of ‘foreseeability’ in the test28, has been discredited as insufficient in itself adding nothing useful in determining a duty of care. 29 The third element of the Caparo Test30 states that Judges should also consider whether it is fair to impose a duty of care in particular circumstances.

The term which best encompasses why the courts will sometimes refuse to find a duty of care was owed in a particular case is if doing so would expose the defendant to a “liability in an indeterminate amount for an indeterminate time to an indeterminate class. “31 This seems wholly reasonable and is a vital aspect to the three stage test as it limits one’s duty to what is reasonably practical and limits claims to what the Courts and the public can accommodate. This principle will be discussed further on in relation to policy.

Establishing a duty of care in particular circumstances could lead to individual responsibility being undermined, in which case, judges are reluctant to find a duty of care. If the law concerning a duty of care can accommodate for “blame spreading” 32 the concept of justice is diluted. Perhaps the most comprehensible example of this is the case of Barratt v Ministry of Defence33. The Court of Appeal dismissed the case holding that it would not be “fair just and reasonable” to find that the commanding officer had owed the soldier a duty to take reasonable steps to ensure that he did not drink too much at a party.

Those who attempt to spread the blame for harm suffered by someone else within the boundaries of the law should not be supported by the Courts and this concept has been recognised34. Although common law must adapt to particular situations following precedent, which has proved complicated, the fact that the common law can legally justify a “no duty” situation such as this, supports my opinion that the law surrounding a duty of care is carefully considered and adaptable. 35Furthermore, it seems obvious that the Courts must act within the intentions of parliament.

In Stovin v Wise36, Lord Hoffman expressed that “if the policy of the Act (imposing the statutory duty in question was) not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care. ” 37 However, the more unusual or “novel” a claim may be, the more likely it is to be rejected by the Courts through fear of undermining Parliament. 38 Although this concept appears to fall under human nature, it seems totally contradictory to the concept of justice that cases should be pre-judged simply due to uncommon facts.

It can be concluded through case law39 that the courts are extremely cautious in protecting the interests of the public when deciding whether a duty of care is owed, as it could lead to a public bodies becoming over vigilant in executing its functions. This is explained in the House of Lords in the case D V East Berkshire Community NHSD Trust40, where it was held that the social services do not owe a duty of care to carry out their investigations of child abuse with a reasonable degree of care and skill as it could cause children being taken into care mistakenly due to the excessively cautious approach the services would adopt as consequence.

41 However legitimate this principle may be, it raises serious questions as to what is expected of the public services in England and Wales. As a result the Courts created an “incremental test” to determine whether duty of care was owed in novel cases, whereby the establishment of a duty of care should be rejected unless it was possible to link the facts with another case in which the existence of a duty of care has already been accepted. 42 However, this ultimately placed a rigid constraint to the Courts capacity to find a duty of care in such cases.

Further, whether one case is legitimately comparable to another is debatably, a subjective concept. 43 Lord Bingham in the case Customs and Excise commissioners v Barclays Banks plc44, dismissed the test holding that it is “of little value. “45 However, there still seems to be no concise decision on the point of law. Alhough the law may not provide fully for novel cases, it does seem to give a good basis for the majority of cases. However some have argued the ‘many duties’ view adopted in Caparo test46 cannot cope with social change, leading to a lack in the duty of care.

47 Not only does this cause confusion and lead to the possibly inadequacy in the law surrounding a duty of care, but the concept of “many duties” causes confusion amongst the public, giving rise to the possibility of unjust cases where the defendant was unaware of his duties to the claimant. However, it must be noted that imposing a duty would encourage people to take more care; Smoldon V Whitworth and Nolan. 48 Although the Caparo test49 is still good law, the significant third element of the test has been heavily criticized.

The view has been held that whether recognition of a duty of care would be ‘fair just and reasonable’ is merely an abbreviation for the consideration of all relevant factors serving for and against liability by the Courts. 50 As Lord Bingham stated, the ‘fair, just and reasonable’ hurdle could more succinctly be described simply as ‘policy’. 51 In order to discuss the topics of policy and principle effectively, clear definitions must be established.

Ronald Dworkin interprets the term ‘principle’ as a “standard that is to be observed” and a “requirement of justice or fairness or some other dimension of morality. “52 ‘Policy’ signifies all the factors, other than purely doctrinal considerations, which the court should properly take into account in deciding cases. 53 Social, economic, moral, constitutional or legal-institutional issues may therefore be included. 54 One of the main policy arguments is the “floodgates argument,” which involves the fear that a flood of claims may follow a particular decision.

55 One of the leading cases in the area is Weller & Co v Foot and Mouth Disease Research Institute,56 where no liability was found due to the fact that the Courts would struggle with the amount of claims as a consequence and it would pose negative effects for the economy in terms of insurance. Another is White v Chief Constable of South Yorkshire Police57 where Lord Oliver recognised “The limitation must be based upon policy rather than upon logic. “58 Perhaps the most prominent example encapsulating the debate of the concepts, is McLoughlin v O’Brien.

59 Here the House of Lords was divided over the correct approach to duty in nervous shock cases. Lord Scarman supported the ‘principled’ approach in which the conditions for a duty of care was whether the occurrence of nervous shock to the claimant was foreseeable. 60 However, Lord Wilberforce, held further restrictions on liability were necessary for ‘policy’ reasons. Thus, his Lordship approved an additional requirement that nervous shock must be suffered by a witness who was proximate in time and space to the physical accident, although he was willing to extend this on the facts to the ‘immediate aftermath’ of the accident 61.

This is a classic example as to how the Courts may use their discretion to create, somewhat minor, additions to the law which prevent an influx of claims, which could potentially harm the economic structure of society. The current law on establishing a duty of care is based around the test outlined in Caparo v Dickman62, although the third stage of test leaves numerous factors to the Court’s discretion. This justifies the courts in rejecting a case on the grounds of policy.

Although the test has proved, overall, successful, it has been criticised on the basis of insufficiency and uncertainty, suggesting a stricter, more straightforward approach in determining a duty of care. Although ideally, the law on a duty of care should be wholly centred around basic legal principles of what ought to be decided, in reality, such an approach cannot be justified. Although the sole purpose of the law is justice, based on legal principles, widespread policy considerations must take precedence in order to maintain social and economical order.

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