#2297 - Formulations Of Duty Of Care - Tort Law

What are the requirements of the tort of negligence?

Negligence

• Rogers: “breach of legal duty to take care with results in damage to the claimant”

  • Generally not concerned with intention

    • Only accidental damage owing to want of care

• Five things to prove

  • C suffers actionable damage

  • D owes C duty of care

  • D has acted in breach of the duty of care

  • D’s breach of duty has caused C damage

  • C has suffered damage which is not remote from D’s actions.

What constitutes a duty of care?

Donoghue v Stevenson Formulation

• What it is:

  • Lord Atkin: Two elements

    • “Reasonable Foreseeability of Harm”

    • “Proximity” of relationship between D and P

      • i.e. “Neighbourhood” principle:

        • D would be liable to anyone closely affected by D’s actions, if they caused harm.

• Problems:

  • Principle is far too wide

  • Lord Diplock in Home Office v Dorset Yaught Co [1970]

    • If retain this principle as “universal” rather than specific to defective products that can’t be inspected by consumer beforehand

      • Law would hold you responsible for every act and omission you did which had the effect of damaging your neighbour (e.g. withdrawing service from Tradesman despite goods being perfectly adequate)

        • Thus, it interferes with freedom of choice and action

  • Does not take into account political, social and economic considerations

Anns v Merton LBC Formulation:

• What it is:

  • Lord Wilberforce:

    • Two questions to ask:

      • Is there a sufficient relationship between C and D so that it is reasonably foreseeable harm may occur and C will be damaged by D’s actions?

      • Is there any good reason to restrict the scope of the tort in this case?

• Problems:

  • Giliker: Confusion problem – test is flawed

    • Confuses foreseeability and proximity, which Lord Atkin formulated as separate concepts

      • Means Judge would have to come up with policy decision to justify the fact he thought the relationship was not close enough.

  • Stapleton: “pockets of liability”

    • Policy question asks whether duty of care should arise in the first place

      • Not whether it is there beforehand but should then be excluded.

  • Giliker: rather generous in scope

    • Presumes duty of care exists on foreseeability alone, so somewhat generous

    • Lord Denning in Lamb v Camden LBC [1981]:

      • Foreseeability often not a useful guide

        • Amount of damage that can arise from a foreseeable act of negligence

          • Does not always stop at the instant act of negligence

            • E.g. escaping offender by negligence of HO

      • Means you need an alternative restrictor than foreseeability.

  • Smith and Burns: Autonomy Reasoning

    • Analogy of 100 donate to charity.

      • Saves life of African child

      • If they don’t give 100, foreseeable that African child will die.

        • But does that mean we’re obligated to take action or not take action because the result is foreseeable?

    • Clear difference between what we’re obligated to do

      • And what we ought to do but aren’t obligated

        • Distinction is key to retain autonomy and freedom of action.

  • We’re looking at more than one area of action/non-action

    • Hence-why we need a principle that uses a changing idea of proximity depending on certain situations.

Capro v Dickman [1990] Formulation

• What it is:

  • Lord Bridge:

    • Three elements that C must prove to establish novel duty of care where analogous cases do not suffice:

      • Damage must be foreseeable

        • Donoghue and Stevenson:

          • Objective test – what a reasonable person ought to have foreseen

            • And what D’s actions ought reasonably to have been foreseen to cause damage to C.

      • Must be sufficiently proximate relationship between the parties

        • Hard to get concrete definition

          • Depends on type of damage

            • Economic loss/psychiatric illness = “close relationship” (i.e. D knows C will rely on his financial reports to be accurate)

            • Physical injury = less close (i.e. D need not know C if he drives too fast and runs him down with his car)

          • Witting: to whom ought D be obligated to not harm and take reasonable care?

          • Howarth: is “policy” by another name

      • Must be “fair, just, reasonable” for duty of care to be created vs. relevant policy decisions/factors.

        • Giliker: often to get around the “proximity” issue – D may know of reliance of C on D, but policy dictates claim should fail

        • E.g. Hill v Chief Constable of West Yorkshire [1989]

          • Police responsibility to prevent crime and protect public not a duty of care except in very specific circumstances as all unsolved crime would make police liable.

  • Lord Oliver: must consider factors together = “facets of the same thing”.

Criticisms of Caparo and answers to these criticisms:

• 1. Howarth: Proximity serves no useful purpose

  • The criticism

    • Hill v Chief Constable of West Yorkshire ]1989]:

      • Lord Keith:

        • Per Lord Diplock in Dorset Yaucht

          • We need something more than foreseeability – e.g. Needs to be a special relationship between P and D

        • And that duty of care is limited to people who are in close proximity to the results of D’s negligence.

          • Sustaining damage from criminals is shared by public as a whole

            • Thus, the relationship is not proximate enough to enable C to sue the Police.

    • Howarth: Lord Keith tries to equate “remoteness” and “proximity” as the same concept

      • Finding D was careless, but someone or something else was clearly more responsible (remoteness) decides the case on a very particular ground

        • This should not be defined as “proximity”, which actually is a policy decision.

      • “Proximate” does not mean anything

        • Is used to try and disguise the use of normative judgements and the third strand “public policy” which Lord Keith appears to openly say

    • Giliker: Judges often disguise their true intentions behind legal word because they feel constitutionally uncomfortable in some decision making area.

  • Problems with this criticism

    • Proximate = remoteness assertion

      • Proximate refers to those around you to whom, in specified sets of circumstances, you have a duty to take care

        • Remoteness is concerned with the damage caused – not the people involved – a different consideration altogether.

    • Need to attenuate that Judges actually using proximity to confer an immunity

      • Is a fundamental misunderstanding of the nature of proximity

        • Witting: Proximity asks question “to whom ought D be liable on these situations”

          • If immunity granted, then this would be a blanket ban rather than a versatile, elastic tool

          • Immunities are conferred against classes of people

            • Proximity strikes out claims on the basis of both people AND the situation

              • Leaving the door open for D to be sued under different set of circumstances and with a different set of people.

    • Proximity fits many different contexts

      • Roger: In Hill If D had been a canning company, rather than the police, whose negligence had caused the poisoning of C

        • she could have been anyone in England or indeed the World under universal jurisdiction, and D would be liable.

      • Me: But this demonstrates the point well – we allow greater and lesser expansion in the “pockets” depending on the context and the pocket in question.

• 2. Roger: The real problem is that proximity is not being used properly

  • The Criticism

    • The distinction looks like two separate conclusions (from Caparo):

      • 1. Auditors don’t owe a duty to investors upon audit reports because there is no proximity

      • 2. And a further reason is that it’s unreasonable to impose liability on them to investors who rely on audit reports in view of the uninsurability of the risks etc.

    • But isn’t this just one conclusion following from a fact?:

      • 1. It would impose an unreasonable burden upon auditors etc.

      • 2. Therefore we will say that the duty is owed not only to the audited company and not to more remotes persons

    • Stovin v Wise

      • Lord Nicholls:

        • Caparo elevates proximity to the dignity of a separate heading, with the formulation

          • suggesting that proximity is a separate ingredient distinct from fairness and reasonableness

          • However, proximity is not shorthand for a concept with objectively identifiable criteria

            • It’s no more than saying that the court must have regard, when considering the requirements of fairness,

              • to the relationship of the parties

  • The answer

    • Roger is wrong

      • First we have to ask whether it’s just, fair and reasonable to have the duty at all?

        • Phelps v Hillingdon LBC [2000]:

          • Lord Slynn:

            • P exercising a particular skill or profession may owe a duty of care in the performance to people

              • So may be an education officer in regard to children with special educational needs.

                • There is no justification for a blanket immunity in their cases

      • Then we ask whether the duty is owed to the specific claimant

        • Phelps v Hillingdon LBC [2000]:

          • Lord Slynn

            • That, however, is only the beginning of the inquiry.

              • It must still be shown that the educational psychologist is acting in relation

                • to a particular child in a situation where the law recognises a duty of care.

            • A casual remark may occur where there’s no sufficient nexus between the two persons for a duty of care to exist.

              • Therefore, we need the psychologist to be advising on a specific child,

                • knowing that parents and the authority will follow the advice.

    • Lord Nicholls is right to an extent, but this does not detract from proximity being a separate heading

      • It is a special policy reason – it determines a different thing to policy in general

        • Policy shapes the pockets of liability – i.e. where D can be liable

        • Proximity gives the details – to whom ought D be liable to in this policy shaped pocket? (this is a very specific policy decision which...