The law of negligence has the potential to impose wide liability on defendants. The approach of the courts has traditionally been to try control the scope of allowable claims in negligence and to limit their bounds while balancing the rights to compensation of plaintiffs and the rights of defendants not to be disproportionately burdened. Elias CJ’s quote raises an interesting question about the emphasis of the courts in the formula they have developed to test actionable negligence.
Similarities between these formulae reflect the fact that above all else, what is important is all relevant factors be considered, as in the view of Cooke P in South Pacific. We must first look to the development of actionable negligence to discuss the merits of Elias CJ’s claim. The courts have established that for negligent conduct to be actionable, there must be a duty to take care resting on the defendant, which must be breached, which must cause damage, where the damage must not be too remote form the breach.
These requirements carry significant policy controls : of autonomy, causation, foreseeability and proximity which will be discussed in due course. The courts first recognised such a duty in Hevan v Pender though it was in Donoghue v Stevenson that the law of negligence was set upon a new and expansive path of development. Lord Atkin said that duty is owed to you neighbour who is anyone “So closely and directly affected by my act, I ought to have them in contemplation when turning my mind to the acts or omissions in question”.
This position was satisfactory for that case, of a manufacturer’s duty to the final consumer of their goods involving negligent conduct, but the courts saw the need to develop the duty test further. In Anns v London, Lord Wilberforce, citing Donughue, Home Office and Hedley Byrne attempted to formulate a definitive test for a duty of care. He said the first limb should be whether there is a relationship of proximity such that negligence is foreseeably likely to cause damage to the other party.
Then the second limb was whether any extraneous policy considerations which ought to negative or reduce the scope of the duty, the class of people or the damages. While this was initially received favourably, the English House of Lords departed from Lord Wilberforce’s test. Lord Keith in Yeun Kun Yeu criticised it as placing too much emphasis on foreseeability, which is not an absolute determinant of a duty.
Also the fact that in the two limb mechanism the first limb establishes a prima facie duty is criticised for reversing the onus of proof, this making litigation against a duty harder for defendants and thus disturbing the balance of their rights. Thus in Caparo Lord Bridge established another test: duty will depend on the relationship of proximity, forseeability of harm, and generally considerations of fairness and reasonableness in establishing a duty. He was particularly clear and said that such a test was only for deciding matters to establish duties in novel circumstances and that the law should be developed by increment, with reference to analogy; a view which Todd supports.
This decision was also widely criticised. In Sullivan v Moody the High Court of Austrlia criticised the first limb saying tests of what is far just and reasonable tend to add to the misunderstanding of the courts developing policy rather than principle. The position in NZ was that initially the courts favoured Anns, but later developed a two stage test of internal and external policy factors in Connell.
In Rolls Royce, Glazebrooke J in the Court of Appeal set a test of proximate relationship as the first limb and any other policy factors as the second, where no limb was given preference; both simply balanced. In South Pacific Cooke P, analysing the House of Lords decision and New Zealand position, said formulas are only there to organise thinking, not provide answers. The important matter is that “all relevant considerations be weighed” Elias CJ’s statement in Couch v AG can be seen to be broadly consistent with this view.
While it can be said that Anns and Caparo differ as the establishment of a prima facie duty, realistically there is no substantial difference following the change in emphasis from the Anns analysis to the Caparo approach The important thing in developing duties of care in novel categories, which Cooke P emphasised, is that all relevant factors be weighed. The test of Anns, Caparo, Rolls Royce and of Elias CJ in Couch all are examples of where the courts attempt to ensure this is done in formulating a test, set as a framework for consideration of all factors. What are these factors?
We will divide them into internal and external factors for the purpose of this discussion here. The primary internal policy concern is proximity. This is closely tied with foreseeablility, in that if someone is not proximate there is little chance that harm to them will be foreseeable. Proximity is set to some degree by who it is reasonably foreseeable in the eyes of the third party objective observer that the defendant’s conduct will affect. Proximity controls that ambit of duties and the courts attempt to avoid setting the ambit too wide to prevent facing too many claims.
This is the concern that Cooke P labelled “opening the floodgates” in South Pacific. Proximity is the balance between the plaintiff’s right to compensation and defendants right not to be disproportionately burdened for their negligence. In Sutradhar v NERC, the idea of a duty owed to all Bangladesh citizens was rejected as proximity grounds in duty to the plaintiff. The class of claimants was the entire population of Bangladesh, or at the very least that of the areas tested during the survey. Further, another relevant consideration is the specificity of the particular plaintiff.
A duty must be owed to a specific plaintiff or class of persons to which the plaintiff belongs. It is established. It is established from Cardozo CJ in Palsgraf and the House of Lords in Bourhill v Young that a plaintiff cannot sue derivatively; their claim must not be built on extension from another’s. External factors can be varied and other factors may depend on the context of earlier cases however some are wide ranging. Autonomy of the defendant is an important concern for the courts. In a liberal democratic society it is improper for the courts to unduly impinge on individual autonomy.
Particular constraints are imposed only where there are good and sufficient reasons for rejecting the general rule. This is when the defendant takes up a duty to act in a certain circumstance. Further the courts look at the vulnerability of the plaintiff. In Hamlin the courts held that denying a duty on the part of a builder would hardly promote self-help and in most cases the owner would be left with no remedy at all. Whereas commercial buyers were held to be able to look after themselves, thus negating a duty in Te Mata. The courts look to protect vulnerable individuals.
Finally, Legal coherence is a concern. In B v AG the courts declined to impose a duty as it would be inconsistent with the statutory principle that the interest of a child must be their primary concern. Again in Dobson v Dobson the SCC held that the mother owes no duty to an unborn child as it would result in extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women So it can be seen that there are a number of factors to be weighed in deciding whether negligence is actionable in a given court.