Describe briefly the development of the Courts' approach to the idea of the duty of care from early case to

An example of this significant expansion of existing law occurred in McLoughlin v. O’Brian (1983) where a duty of care was held to exist despite the fact that the claimant was not at the scene of the accident.  This nervous shock case was in direct contrast to King v. Phillips (1952) because the Lords did not have to try and bring the facts within previous decisions (regarding nervous shock) were a duty of care had been held to exist.

This expansion reached its high water mark with the case Junior Books v. Veitchi (1983) when the House of Lords allowed a claim for economic loss caused by negligent acts.  The decision of this case was criticised and this was the beginning of the retreat from the two-stage approach.  The decision of Junior Books was quickly regarded as unique to its facts, and there is no reported case where Junior Books has been applied.  The criticism of Junior Books was based on the fact that it allowed so much flexibility that the law was in danger of expanding to rapidly.  In the mid to late

1980’s Lords Keith, Bridge and Oliver led the attack on the two-stage test in a number of cases.  

The criticisms began in the cases of Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd (1985) and Leigh & Sullivan Ltd v. Aliakmon Shipping Company Ltd (1985).  In the Peabody case Lord Keith said that in addition to considering proximity the court must decide whether it is ‘fair, just, and reasonable’ to impose a duty of care.  In Yeun Kun Yei v. Attorney General of Hong Kong (1988) Lord Keith said;

“…the two stage test in Anns is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care”.

Lord Keith was of the opinion that the second stage of Lord Wilberforce’s test should only apply in true public policy matters when it would not be in the public interest to find liability, E.g. Hill v. Chief Constable of West Yorkshire (1988).

The age of the two stage test was ended in Murphy v. Brentwood District Council (1990) after the House of Lords invoked the 1966 practice statement allowing them to overrule their previous decision in Anns v. London Borough of Merton (1978).  In Murphy the court approved Sutherland Shire Council v. Heyman(1985), in which Brennan J. rejected the broad two stage approach, and made his famous quote (which appears in the assignment question, above).  In Murphy Lord Keith recommended that an ‘incremental’ approach should be adopted.

A new three stage test was borne from the case of Caparo Industries v. Dickman (1990).  The three questions to be asked are;

• Were the consequences of the defendant’s act reasonably foreseeable?
• Was there a relationship of proximity between the parties?
• Would it be fair and reasonable for the law to impose a duty upon one party for the benefit of another?

This incremental approach avoids such an expansion of the tort of negligence as was seen as a result of the two stage test because the development is now led by analogy with existing cases.  Any novel type of situation has to show it is analogous to an existing situation where a duty is owed.  This has led some to argue that the new restrictive three-stage test has gone to far and led a return to ‘duty situations’.  However, this criticism is not widespread and the Caparo three-stage test has been applied in a number of recent cases, including; Spring v. Guardian Assurance (1994), Barrett v. Enfield Borough Council (1999).

Post Caparo the attitude of the courts is to ascertain whether there is an existing authority for a duty of care in said circumstances.  If not, then the three stage test from Caparo should be applied. Furthermore a claimant is now also required to argue their case with analogies to existing case law.  Recent case law has suggested the period of retraction is over and there is now some nervous expansion of the duty of care, ultimately these developments have occurred through Judge’s policy decisions.

        Before discussing various types of policy issues it is worth differentiating between ‘latent’ and ‘explicit’ policy decisions.  

Latent policy making is when the decision is blatantly policy driven but the judges will not admit to this; King v. Phillips (1952).

        Open discussion of policy issues leads to decisions having explicit policy motives.  The second requirement in Anns and the third requirement in Caparo are open invites to openly discuss policy issues.

        In some situations if the courts were to find a duty of care it could contradict statutes enacted by parliament for the regulation of particular situations.  The best example of this is the issue of child-care; X (Minors) v. Bedforshire County Council

(1995).  The House of Lords decided that to impose a duty of care upon a public body could lead to the function of said body being performed in a detrimentally defensive manner.  

        There is a similar argument for creating an ‘immunity’ for certain categories of professional defendants (doctors, barristers) or public bodies (police, fire fighters, ambulance drivers). This is because the threat of negligence actions could be reflected in the adoption of defensive practices; Osman v. Ferguson (1993).  If public safety was jeopardised by the courts imposing duties of cares on these persons it is obviously preferable that they refrain from doing so.  It is interesting to note that the recent ruling in Hall v. Simons and Others (2000) where the House of Lords have stated a duty is now owed by advocates.

        The courts have introduced a duty of care in some circumstances to act as a deterrent, i.e. to encourage people to act in a responsible manner; Smoldon v. Whitworth and Nolan (1997).  The extent to which the introduction of civil liability is successful is debatable, particularly when a defendant is insured.

        In certain situations the courts may discover a duty of care because no other remedy can be afforded to the claimant; White v. Jones (1995), Spring v. Guardian Assurance (1994).  For the purposes of this essay it is worthwhile to note that these two cases mark a distinct reversal of the trend to restrict the development of negligence, because they are actually extending the doctrine of duty of care.

        Loss allocation is a policy issue in which the court will often look to the parties and see which can afford to bear the loss best.  This will normally come down to whichever party is insured.  This policy is commonly used in road traffic accidents.  However, the case of Philcox v. Civil Aviation Authority (1995) is worth noting in this area.

        To prevent a flood of claims, the courts often don’t find a duty of care due in fear that it will open the ‘floodgates’ for numerous similar claims.  This would be a

negative development, as it would help push forward our already increasingly litigious society.

        To conclude, the doctrine of duty of care has gone through some large developments in its time, from its rapid expansion in the 1970’s – 1980’s to its gradual reduction in the late 1980’s - 1990’s.  It now seems to be developing slowly with the courts putting the impact on society, politics and economics high on its list of priorities before reaching decisions.  It will be interesting in the future to watch the development of this area of law after the enactment of the Human Rights Act 1998, particularly surrounding the liability of public authorities with regard to S.6 HRA 1998.

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• Bibliography.

• Bermingham, Vera.  Nutcases On Tort.  Second Edition.  Sweet & Maxwell.
• Bone, Sheila.  Osborn’s Concise Law Dictionary.  Ninth Edition.  Sweet & Maxwell.
• Elliott, Catherine & Quinn, Frances.  Tort Law.  Third Edition.  Longman.
• Harpwood, Vivenne.  Principles Of Tort Law.  Fourth Edition/  Cavendish.
• Lunney, Mark & Oliphant, Ken.  Tort Law Text & Materials.  Oxford.
• Rose, F.D.  Stautues On Contract, Tort & Restitution.  Eleventh Edition.  Blackstone’s Press.
• Wynn-Jones, Rhiannon.  Law Of Torts Course-book.  2001-2002.
• Lawtel.                                                        

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