"A duty of care arises not merely when damage is reasonably foreseeable, but when it is just and reasonable to impose liability" Critically discuss.

In Home Office v Dorset Yatch Co [1970], Lord Reid, Morris, and Pearson clearly thought that the neighbour principle had the status of a rule of law, that ought to apply unless there was some “justification or valid explanation” for its exclusion. Lord Diplock, with an attempt to extend the hollowed gap, however, stated that foreseeability was only one element in determining the existence of a duty of care. In deciding whether to recognize a new duty, the court must also look at previous decision by way of comparison and at the policy aspects of the case. Therefore, the exception to the neighbour principle makes it clear that the new duty will not be lightly imposed.

Lord Wilberforce Two-Stage Test

Therefore, after much criticism Lord Atkin’s test was simplified by Lord Wilberforce in Anns v Merton L B C [1978]  into a two-part test.

First, whether there is a sufficient relationship of proximity or neighbourhood between defendant and plaintiff so that the former reasonably contemplates that carelessness on his part may damage the latter, and secondly, granted that such proximity exist, whether there are any grounds why, despite that, the law should not impose a duty.         

The word “proximity” replaced “foreseeability of harm” in the formulation of the first requirement. The foresight required is that of a reasonable man who is not expected to foresee fantastic possibility. Proximity, however, enables the court to lay down a stricter test than foreseeability where the circumstances of the case required it: Ross v Caunters (1980), the defendant held liable for negligent statement as he had the plaintiff in mind when making such report, therefore proximity relationship was established.

The second part is with regards to policy. ‘Policy reasons’ simply mean that the judges take into account not just the legal framework, but also whether they believe society would benefit from the existence of a duty. This approach began to be criticized, as the apparent need to find such reasons was said to be holding back development of the law.

The appellate courts began applying this test but the House of Lords then began retreating from the implications of the Wilberforce test. This test changed the way the neighbour test was applied. A long line of cases expressed dissatisfaction with the Anns test as it was always seen as too broad as previously the courts had to justify new areas of liability where there are policy reasons for creating them. With Anns test, the neighbour test of foresight could apply unless there were policy reasons for excluding them.

Issues recognized is that firstly, the test creates a general duty based only on proximity thereby it led to great expansion of situations where duties would arise, and secondly it gives judges too much power to decide on policy alone and furthermore, they are reluctant to justify their policy reasoning.

Lord Bridge’s Three-Part Test

With all the criticism by the courts, today the requirements that must be satisfied before a duty of care is replaced by Lord Bridge, Lord Oliver, and Lord Keith’s three-part test in Caparo Industries v Dickman [1990]:

"In addition to the foreseeability of damage, the necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

The modern test was laid down in where the damage to the plaintiff should be reasonably foreseeable, the relationship between the plaintiff and the defendant must be sufficiently proximate. Moreover, to impose a duty of care it must be fair, just and reasonable.

Despite criticisms of the Anns test, issues of policy is still significant as such consideration of policy is an inescapable result, as many argued that the judges applying policy reasons are better than hiding this consideration behind reliance of precedent.

Therefore, following Ann but with restrictions, the courts' decisions mostly depend on a question of policy and also on a third limb of Caparo, fairness, justice and reasonableness considering both broad issues of policy and the imposition of duty in fair circumstances.

THE ROLE OF POLICY

Where justice and reasonableness are specifically referred to, it is usually because a case meets the requirements of foreseeability and proximity, but the courts believe there is a sound public policy reason for denying the claim. In MacFarlane v Tayside Health Board (1999), the courts deny the plaintiff compensation for the cost of bringing up her baby where a vasectomy operation failed which resulted to her unplanned pregnancy. The courts decided on policy reason as bearing a child would normally be regarded as a blessing.

Few well known cases where policy reasons are brought about is to illustrate that the courts have been reluctant to recognize duty of care. Policy is shorthand for 'public policy considerations'. In some cases the policy is expressed by an outright refusal to impose a duty; in others, the court will try to distinguish the facts so as to not be bound by precedent.

This approach has been adopted particularly where there is a public or general interest which awards defendants a certain degree of immunity from litigation. Courts have often justified their actions of not imposing a duty of care upon public bodies, particularly the need to prevent the 'opening up of floodgates of liability’. Numerous different claims are likely to arise out of a single incident especially where it is an influential case.

Other arguments put forward in defense of limiting the application of a duty of care is that, large liabilities could result in detrimental effects on society such as an increase in fraudulent claims. Added factors that influences judges are potential conflicts with social or moral values, that are given due consideration.

Courts will also consider the possibility of risk-spreading by vicarious liability or insurance assistance. When imposing duty the court will consider who can best bear the loss, whether or not the claimant is insured and how the decision might affect society as a whole and future behavior, and may depart from precedent and take into account the justice of the individual case.

Situations where Courts Reluctant to Impose a Duty of Care

In recent years the courts have identified a wide range of factors that may be relevant to the denial of a duty of care.

Duty of care may not exist where:

(a) The claimant is responsible for his own misfortune - Governors of the Peabody Donation Fund v Parkinson (1984).

(b) Liability of police – In Hill v CC of West Yorkshire [1988], where the police forces failed to detect the ‘Yorkshire Ripper’ before he murdered the plaintiff’s daughter, the court held the Chief Constable could not be liable for policy purposes. The police did not owe a general duty of care to individual members of the public. Awards of damages against a public authority exercising a public function would have an impact upon the resources available for them to perform their duties, and the resources required to investigate and defend spurious claims. But not where there is a positive duty to act as seen in Reeves v Metropolitan Police Commissioner (1999), as where the law imposed a duty on a person to guard against loss by the deliberate and informed act of another, the occurrence of the very act which ought to have been prevented could not negative causation between the breach of duty and the loss; nor where human rights are involved, Osman v UK(2000) (ECHR) and breach of Article 6 ECHR.

(c) Immunity of judges - In Sirros v Moore(1975), it was said that without judges’ immunity the result would be such that judges are not free to decide accordingly without worrying of consequences. However, steps have been taken by the practice of “check and balance” by the Doctrine of Separation of Power therefore this immunity is essential to keep the peace. Furthermore the Crown Proceedings Act 1947 indicated the extend of immunity privileges given to judges.

(d) No duty where such imposition would collide with statutory framework established by Parliament for regulating particular circumstances, such as the regulation of financial markets, Yuen Kun-yeu v AG of Hong Kong [1987], or the protection of children at risk X (minors) v Bedfordshire CC [1995]. In the case of Bedfordshire a psychiatrist and social worker interviewed a child suspected of having been sexually abused and wrongly assumed from the name given by the child that the abuser was the mother’s current boyfriend, who had the same first name (rather than a cousin). The child was removed from the mother’s care. The purpose of child care legislation was to establish an administrative system designed to promote the social welfare of the community.

(e) If there is an alternative remedy available to an aggrieved claimant, such as a statutory right of appeal from the decision of a government officer or department, or judicial review, or another source of compensation, such as the Criminal Injuries Compensation Scheme, or another cause of action, such as a claim for breach of contract, even where the action would be against a different defendant, the court would not impose duty of care under tort.

(f) Court will limit to impose duty where a duty of care would tend to undermine the requirements of other causes of action, particularly in the case of complex commercial contracts where the parties have had the opportunity to negotiate a detailed structure of contractual negotiations.

(g) In some circumstances a participant in a crime may not be owed a duty of care by a fellow participant in the same crime. This is related to the illegality of the claimant's conduct - Pitts v Hunt [1990]

Where statute and common law find it mandatory to impose duty

1. The dependants of a deceased person could claim in respect of the death by the Fatal Accidents Acts. Therefore defendant must be held liable to compensate for all the dependants.
2. Trespassers are owed a common duty of care by the occupiers of premises, now by virtue of the Occupiers' Liability Act 1984.
3. A duty of care is owed to an unborn child in respect of injuries inflicted whilst in the mother's womb (B v Islington Health Authority [1992]), although this only applies to births before 22 July 1976 when the Congenital Disabilities (Civil Liability) Act 1976 came into force. The Act, which replaces the common law for births after its commencement, grants a right of action to a child who is born alive and disabled in respect of the disability, if it is caused by an occurrence which affected the mother during pregnancy or the mother or child during labor, causing disabilities which would not otherwise have been present.
4. A person who undertakes to perform a task, even gratuitously, assumes a duty to act carefully in carrying it out - Barrett v Ministry of Defence [1995].
5. There are a number of relationships that give rise to an affirmative duty to prevent harm. These include employer and employee, parent and child, captain (or carrier) and passenger, referee and player in rugby matches, hotelier and patron, the organizer of a dangerous competition and a visibly drunken participant, and occupier and visitor.
6. An occupier's control of land may give rise to an affirmative duty in relation to the behavior of visitors or even acts of nature. Where the defendant has control over some object which is likely to be particularly dangerous if interfered with by a third party he may be under a duty to prevent such an interference (Dominion Natural Gas v Collins and Perkins [1909]). This duty have been imposed and applied to the theft of a poisonous chemical by young children in Holian v United Grain Growers (1980).
7. Rescues – The final category of claimant where duty is owed is seen in Revill v Newbery [1996] 1 All ER 291. Reason being that it would be unjust to prevent claim for foreseeable rescuers and it would, in the future, deter rescuers from assisting. is the injured rescuer. “Danger invites rescue. The cry of distress is the summons to relief? The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer"

CONCLUSION

Duty of care is a legal obligation imposed on an individual requiring that they adhere to a reasonable  while performing any acts that could foreseeably harm others. In order to proceed with an action in negligence, the plaintiff must be able to prove a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to be liable and compensated. Case law is crucial to identifying duty situations. Therefore, after discussing the development in length, the modern test is whether there was foreseeability and proximity and it was fair, just and reasonable to impose the duty.

        Despite the fact that duty of care is considered a formalization of the implicit responsibilities held by an individual towards another individual within society, certain limitation towards the imposition of duty is necessary to maintain an effective and workable system and to provide some leeway in circumstance where common law’s rigidity could cause an interruption to the flow of development that is corresponding with the growth of society. Therefore, the element of ‘just and reasonable’ plays a significant role in addressing whether duty exists, not merely whether foresight is established.

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