Discuss how this comment by Lord Slynn illustrates the development of the general concept of the duty of care and how the existence of the duty of care is to be decided in each case.

        The ‘neighbour principle’ was used in the succeeding cases that followed after Donoghue v Stevenson, but in Hedley, Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465, they rejected the neighbour test because they felt it gave rise to a too wide area for liability to be applied. They instead stated that there had to be a ‘special relationship’ between the parties involved i.e. proximity.

The principle of reasonable foreseeability defined in the neighbour test was developed further by Lord Wilberforce’s judgement in Anns v Merton Borough Council (1978) AC 728. He developed the principle of the ‘two stage

“The question has to be approached in two stages. First…between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that…carelessness on his part may be likely to cause damage to the latter. Secondly if the question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise.”

In this two-stage test, the first stage was to establish that the parties satisfied the neighbourhood test, that there was proximity between them.

Proximity is a complex idea, its meaning can differ depending on the case. In one sense it can mean a prior relationship between the parties and help to distinguish whether the relationship was sufficient to form a legal relationship, which could allow a duty of care.         

In negligence cases this confuses ideas by relating liability in terms of the relationship because a driver doesn’t necessarily have a duty of care because of a relationship with a pedestrian. Proximity within the area of negligence is used to try and establish whether the defendant was the effective legal cause of the claimant’s damage.

The decision made in Anns to develop the neighbour test into a two-stage test altered previous ideas the courts used it to justify new areas of liability where policy reasons allowed for it. Now the neighbour test applies unless there are policy reasons for excluding it.

Although Anns v Merton did develop the general principle, in Murphy v Brentwood (1991) 1 AC 398, it established that the incremental approach was preferred to the two-stage test.

The start of the abandonment of the two stage test came in Caparo Industries plc v Dickman (1990) AC 605. Lord Dickman identified a distinction between the two approaches that have been used to identify a duty of care. The first was the approach used prior to the decision made in Donoghe v Stevenson that he called the ‘traditional approach- where the law finds the existence of the duty [of care] in different specific situations each exhibiting its own particular characteristics.’ 

The second approach was developed in the decision in Anns and Home Office v Dorset Yacht Co. This was based on the idea of the ‘more modern approach of seeking a single general principle which may be applied in all circumstances of a duty of care.’

        In the Australian case of Sutherland Shire Council v Heyman (1985) 60 ALR 1, Brennan J had a similar view to that of Lord Slynn, ‘the law should develop novel categories of negligence incrementally.’ This approach developed the idea of an incremental idea towards duty of care and the existence of it, instead of the broad general principles developed through Anns and Donohue v Stevenson.

        By developing an incremental approach it would allow judges to see what particular category the case fell into and then develop the rules in this area. This idea means that the individual facts of a case are looked at and then the judges can develop this area to find a judgement for that particular case rather than looking at the whole case and finding preceding cases to return a judgement.

        It is now no longer accepted that there is a general principle for determining the existence of a duty of care that would be applicable in all circumstances.

        In terms of duty of care, a very controversial topic is that relating to public policy. Where certain groups have immunity from being sued in negligence or having a duty of care. The majority of these groups have a ‘public service’ such as the police, fire services and local authorities.

The argument for public policy services to have blanket immunity from owing a duty of care would be so that they are able to get on with their jobs without the threat of litigation.

The public policy of immunity of duty of care contradicts the idea of a general principle of negligence of a duty of care, the general principles allow judges to look at the individual facts of a case, whereas, blanket immunity means that that the facts aren’t looked at and for the majority of cases it is struck out and decided that there isn’t a duty of care owed by the defendant.

In Rondel v Worsley (1969) AC 191, the House of Lords gave immunity to advocates because of the work they do in court. Barristers were deemed not to owe a duty of care to their clients, because the client has a relationship with their solicitor and the barrister has a duty to the court, if they had the threat of litigation on them if they committed a negligent act then it may affect the work they do in court.

In the case of Hall & Co. v Simons (2000) HL, they overruled the decision made in Rondel v Worsley and abolished the Immunity of Advocates. This was seen to be a result of the implementation of the Human Rights Act 1998 and Article 6 relating to the right to a fair trial. Not many of the other countries within the E.U have an immunity of advocates clause and there was seen to be no justification for it to present in English law.

In terms of the police having blanket immunity from a duty of care, in Hill v Chief Constable of West Yorkshire (1986) 2 All ER 238, related to the Yorkshire Ripper and whether the police had failed to use reasonable care in catching the murderer of Miss Hill. The House of Lords had to decide whether the police owed a duty of care by not apprehending Sutcliffe before he killed her daughter.        

Lord Keith, used proximity to decide whether there was a relationship between Hall and the police. He identified that the alleged negligence was a failure to discover the identity of Sutcliffe before he killed her daughter, so ‘there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one.’

Lord Keith also decided that there was not sufficient risk to Miss Hill at the time in terms of Sutcliffe specifically attacking her- just because she was young and female, therefore the police didn’t owe a duty of care to Hill.

Although, he did admit there was reasonable forseeability of likely harm to Miss Hill but the ‘circumstances of the case were not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire police.

In the case of Waters v Commissioner of Police (2000) 1 WLR 1607, it was whether the police owed a duty of care to an employee. It was decided in this case that they did owe a duty of care and that the case should not have been struck out under the public policy immunity clause.

In this case the plaintiff wanted all the facts to be looked at cumulatively, rather than the individual facts decided on separately. Throughout this essay the majority of points identified have led to the facts of each case being looked at individually, but in this case by looking the facts as a whole sequence shows how and when a duty of care should be owed. ‘…Whilst I accept that many of the individual items taken in isolation are at the least very unlikely to have caused the illness alleged, the plaintiff’s case puts much emphasis on the cumulative effect of what happened.’   

   As this essay has shown there have been various means of trying to establish a duty of care, a principle that may work in one case may be too strict or too lenient in another, this means that judges are constantly having to broaden and narrow guidelines for duty of care. This shows how important the incremental approach is, by allowing a judgement to be given on the individual facts of a case rather than following precedent as it allows the most appropriate judgement to be decided upon.

In order to keep the law within a sensible framework, there are three factors that are employed, firstly the loss must be reasonably foreseeable, there must be a relationship of proximity between the plaintiff and the defendant and thirdly the liability for harm that has occurred must be ‘just and reasonable’. The necessary points vary from case to case but the one thing that courts are looking for is a relationship of proximity, it may not be universally applied but can be applied within context of the individual facts of the case in question.

Bibliography

• Obligations: The Law of Tort, 3rd edition, D.G. Cracknell, Old Bailey Press (2001)

• Cases, Materials and Text on National, Supranational and International Tort Law W. van Gerven, J. Lever & P.Larouche, Hart Publishing (2000)

• Sourcebook on Torts  G. Stevenson, Cavendish Publishing, (1996)

• Textbook on Torts 7th edition, M.A. Jones, Blackstone Press Ltd (2000)

• Nutcases: Tort 2nd edition, V. Bermingham, Sweet & Maxwell, (1999)

• Common Law of Obligations 3rd edition, Butterworths, (2000)

• IOLIS online workbook

• ‘Public Authority Negligence Revisited’ C.L.J, 59 (1) March 2000 pg 85

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