TORT EXAM

‘Establishing a duty of care in a novel situation is a matter of policy rather than justice.’

For a claim be successful, the three elements in the tort must be established (duty of care, breach of
duty and causation). Duty of care exists when the relationship between the defendant and claimant
falls within a category established through common law with a prima facie duty of care, for example,
doctor and patient. Where the relationship does not have a precedent or it cannot be linked by
analogy, the Courts must ensure whether a new category can be introduced. Usually, Judges are very
careful that a finding of duty of care in a novel situation does not establish a precedent that opens
the “floodgate” to litigation.

Before 1932, there was no recognised rule for determining of a duty existed in circumstances
without a legal precedent. As a result, this led to a considerable number of injustices when
individuals were injured by clear instances of negligence. An example of this phenomenon can be
seen in Winterbottom v Wright. Here, the court held that Winterbottom could not sue Wright,
because a contract did not exist between the two.

Pursuing to find corrective justice for victims of negligence, the House of Lords in Donoghue v
Stevenson: (i) recognised the expansion of liability beyond the contract relationship; and (ii)
established that duty of care could be said if there is a relationship of “neighbourhood” in the sense
that the claimant can be reasonably foreseen as likely to be affected by the defendant’s act (or, in
limited circumstances, omission). Owing to the expansion of liability a general retrenchment of the
neighbour principle was made since it had created interest conflict with the public interest and
contemporary values (policy considerations).

Following these restrictions, the courts attempted to re-define the neighbour principle, at first by
expanding the tort of negligence, as occurred in Home Office v Dorset Yacht, and further in Anns v
Merton LBC, where a two-stage test was recognised. The first part of this test recreates the
neighbour principle, where it was necessary to ascertain a sufficient relationship of proximity or
neighbourhood including reasons against a finding of duty. The second part, and that there are no
“considerations which ought to negate or limit the scope of the duty” (ie, policy reasons) or limit any
damage that might arise.

Anns test fell into disfavour as it was too expansive and unjust to defendants. It also led to a large of
floodgates problems. Subsequently, Ann’s approach was rejected by Caparo Industries plc v
Dickman 1990, which is the currently applicable test for establishing a duty of care.

Caparo test said that three criteria must be satisfied before a duty can be found in a novel situation:
(i) foreseeability; (ii) proximity; and (iii) fairness. The first criteria is that the claimant must fall within
a class of individuals put at foreseeable risk by the defendant’s action. A prime example of
foreseeability can be seen in the US-based of Palsgraf v Long Island Railroad Co, where the court
noted that “a claimant must demonstrate that there has been some violation of her personal rights”.

The second criteria -the requirement of proximity- means that a certain type of relationship or
connection must be exist between the parties. Lack of proximity can be illustrated in Hill v Chief
Constable of West Yorkshire, where the police were not liable for failing to apprehend the Yorkshire
Ripper before he committed another murder. There was insufficient proximity between and
undefined victim of potential crime and the police for a duty of care exist.
This formulation tends to suggest that proximity is a separate ingredient, distinct from fairness and
reasonables, and capable of being identified by some other criteria.

The third criteria involve establishing whether it fair, just and reasonable to determine who owe a
duty of care. Due to the vague nature of this stage, it is considered as a “safety valve” given that
judges’ decisions can be influence by question of policy in order to maintain the development of the
law and on the wider public interest. The main policy issues are now considered. First, the floodgate
argument;

This issue could be explain in Alcock v Chief Constable of South Yorkshire Police 1992,

. First, the floodgates argument; would the establishment of a duty situation create a potentially large
number of, possibly unwarranted, claims? This was probably at issue in Alcock v Chief Constable
of South Yorkshire Police [1992] 1 AC 310 and characterizes the development through case law of
the legal principles in relation to psychiatric harm negligently inflicted on ‘secondary’ claimants (ie
those who were not themselves at risk of physical injury, but whose claim is based on psychiatric
injury caused by negligent injury to a third party).

 Nor is it considered fair or reasonable for a defendant to be burdened with liability in negligence to
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individuals who cannot be accurately identified. This idea was famously expressed by Cardozo CJ
in Ultramares Corporation v Touche  , 174 N.E. 441 (1932), in which he stated that the law should
not admit ‘to a liability in an indeterminate amount for an indeterminate time to an indeterminate
class’.

Lord Nicholls stated that they are separate ingredient, proximity is distinct from fairness and
reasonableness.

For example, what is foreseeable depend on issues of policy, justice, and proximity. But what a
proximate relationship is depends on the other criteria, which is not clear in Caparo.

The importance of the Caparo criteria lies in providing a framework of inquiry into whether the law
ought to take an incremental step by analogy with established authority

Lord bridge approved the observation that the law should develop novel categories of negligence
incrementally and by analogy with established categories
The test should only be applied in full in situations which do not involve a pre-defined duty of care.

Overall, the relevance of the Caparo factors (reasonable foreseeability, proximity and fairness,
justice and reasonableness) lies in providing a framework of inquiry into whether the law ought to
take an incremental step by analogy with established authority
Here the courts applied that Caparo test to all cases in relation to negligence in tort. In consequence
the court would only impose a duty of care where it considered it fair, just and reasonable to do so
on the particular facts
,

Donoghue and Anns both suggested that the only connection or relationship that needed to exist
between the parties was that it was reasonably foreseeable that the Claimant might be harmed by
the Defendant’s carelessness. On the other hand,

The final stage of the Caparo ‘test’—that is, whether it is fair, just and reasonable to find that the
defendant owed the claimant a duty to take reasonable care not to cause them damage—returns,
once again, to notions of policy. In so doing, it has been argued that it leaves the courts with an
inevitable ‘residual discretion as to whether or not a duty of care should be recognised’ (Witting
2005, p 62). Traditionally, judges have sought to play down this aspect of their role (especially during
the period of retreat following Anns). However, more recently, they have been more willing to
engage in frank discussions about the fairness or otherwise of imposing a duty of care. For example,
in Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] (also known as The Nicholas H) the House of
Lords denied a duty of care on the part of the defendants on the basis that it was not ‘fair, just and
reasonable’ to disturb the contractual allocation of risks between the claimant cargo holders and the
shipowner (who was not party to the action) and which might threaten to undermine the terms on
which international trade was conventionally conducted. Similarly, in XA v YA [2010] the court found
that it would not be fair, just and reasonable to impose a duty of care on a mother who had failed to
prevent her son from being assaulted by his father (her husband) over a period of years. 12

“Despite the general principle excluding liability for omissions, liability may arise in certain
exceptional circumstances”. When the obvious defendant has little money or is hard to trace,
claimants often seek compensation from someone with funds who might have prevented their
suffering harm, such as the police, emergency services and local authorities.

By reference to the case law explain when the court will impose liability for omissions. Focus on
the police, emergency services and local authorities. What are the principles and policies behind
these decisions?
“In my opinion there is another reason why an action for damages in negligence
should not lie against the police in circumstances such as those of the present case,
and that is public policy” Hill v Chief Constable of West Yorkshire [1989] AC 53 per
Lord Keith.

By reference to relevant case law explain the circumstances when the court
has or has not chosen to impose a duty of care on public bodies such as the
police. What are the principles and policies behind these decisions? Do you
consider that these policies and principles have been applied consistently?