In Home Office v Dorset Yacht Co Ltd. where a number of boys under the supervision of three officers of a borstal escaped, when the officers were allegedly asleep, and went for a joyride on a yacht and injured the plaintiff’s property. The House found in favour of the plaintiff and in doing so Lord Reid stated in his judgment regarding the “neighbour principle” that: “the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.” This would suggest that the onus had shifted to the defendant to exclude a duty owed to the claimant but crucially, policy considerations could still be deliberated by the courts under the mask of foreseeability. This somewhat liberating principle was later confirmed in 1978.
The case of Anns v Merton LBC, in which a building’s foundations were alleged to have been at an insufficient depth, the plaintiffs brought a claim in negligence against the local authority on the grounds that the authority had negligently failed to, or negligently inspected the building’s foundations. Lord Wilberforce attempted to create a two stage test to establish whether a duty of care was to be imposed on the defendant by the Courts. The test, which incorporated the neighbourliness of Lord Atkin’s formulation and integrated proximity in its legal rather than geographical sense, can be summarised thus by asking two questions: was the harm that the plaintiff suffered foreseeable, bringing them within the neighbour principle? If affirmative then a prima facie duty of care arises and secondly, integrating policy considerations, if there is any valid reason why a duty of care should not be imposed? With the onus being on the defendant to prove a valid reason. If both the questions were answered satisfactory to the claimant then a duty of care was then imposed upon the defendant. It can be argued that this further liberalisation of the duty test could provide additional potential for extensive liability as the proximity criteria of the first stage could prove unlimited in scope as many injuries may be considered as foreseeable and there being no distinction between both terms.
Further doubts of the “Anns test” were to follow, perhaps most noticeably in Yeun Kun Yeu v Attorney General of Hong Kong where he stated:
“In view of the direction in which the law has since been developing, their Lordships consider that for the future it should be recognised that 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.”
The decision in Anns was later overruled in Murphy v Brentwood District Council, where cracks appeared in a house built on a concrete raft which had subsided and the plaintiff sued the local authority for negligently approving the plans. This proved to be a contraction in the scope of a duty of care, and established that there was no duty in pure economic loss cases. The case also emphasised the distinction between economic loss and physical/property damage.
In the same year the Courts developed the current test for whether a duty of care should be established in novel cases and dismissed the Anns test. In Caparo Industries plc v Dickman, Lord Bridge re-formulated the “test” for a duty to be established by the Courts; this is despite his reservations that a simple mechanical test could ever be formulated to offer assistance to establish liability. The existing “Caparo test” consists of three stages and has somewhat reigned in the liberalisation of the Anns test. The test stipulates that there should be a reasonable foresight of harm; that there should be a sufficient proximity of relationship; and that it should be fair, just and reasonable for the Court to impose a duty of care. Lord Bridge in his judgement suggested following the approach laid down by Brennan J when he stated: “We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman.” The words of Brennan J are:
“It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.”
This three stage test would increase the significance of judicial discretion for policy considerations while incrementally developing the ambit of the tort to novel situations by analogy with existing duty situations known as the incremental approach. It was also the first time that the Courts developed a distinction between foreseeability of damage and relationship of proximity.
Proximity, normally signifying the existence of a pre-tort relationship, now provides an extra hurdle in the way of a successful claim, and as alluded to by Lord Nichols in Stovin v Wise: Proximity is “only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties”. Suggesting that in evaluating the relationship of proximity, the Courts will use policy considerations in their assessment. However, both proximity and reasonable foresight of damage should be primarily an evaluation of the factual circumstances. Whitting even suggests that proximity based reasoning should be the primary consideration made by the Courts rather than policy based, to create consistency in establishing new duty situations:
“A multi-factoral, policy-based approach to duty determinations is likely to leave lower and intermediate appellate courts with little effective guidance and is likely to lead to greater inconsistency in the determination of cases.”
Yet, the fair, just and reasonable stage has become the main device to give the Courts policy discretions in imposing new duty situations even when both other stages have been satisfied. Such as in the Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) where it was held that a maritime classification society could not owe a duty to the owners of a sunken ship, even though on principle both of the first two stages of the Caparo test were satisfied. In this case it was mooted that if a duty was found it could affect international trade and considerations for the defendant’s role as non-profit organisation were also taken into account. However, the number of undefined considerations and the approach that the judiciary may take can differ dramatically. For example, economic considerations such as loss distribution may be high in the courts assessment: is the defendant insured or have they deep enough pockets for the Courts to find liability against them? Conversely as Whitting, some what directly, states “Why, it might be asked, should an innocent victim's entitlement to compensation depend upon the fortuitous circumstance of the defendant's ability to spread the loss?”
Some may place a high emphasis on the floodgates argument, that the Courts would be flooded by numerous actions in tort, once a novel duty has been established and with the limited funding and resources available to the Courts, a number of new duty situations may not be enforceable if breached, even if in principle, the duty should exist. Or, whether finding such a duty would undermine democracy such as in Murphy v Brentwood DC, where parliament had already legislated as to when a builder would owe a duty to future owners of a property with the Defective Premises Act 1972. A failure by the Courts to recognise a duty to rescue, outside of any special relationship, has helped to create a “clearer and more certain position”; thus the need to have clarity of when a legal duty is owed may also be of importance.
So how should the Courts decide when a duty of care is to be owed by the defendant to a claimant? There currently lies no core statutory source in negligence to establish a duty of care in novel cases. The French code civil which establishes liability with a single provision of the Code civil, “Article 1382 states: ‘Any act whatsoever which causes injury to another obliges the person by whose fault it was caused to pay compensation.’” This simple formula, as the Lunney and Oliphant point out, provides no way in limiting the scope of liability but, crucially this is done under the umbrella of causation, leaving less room for policy deliberations in creating novel duties. An improvement may be found in adopting a similar codification, like our French cousins, legislated through parliament. Such a system would promote certainty as to when a legal duty would arise and fears of an over litigious society should be dispelled with a reliance on causation principles to limit the scope of liability.
In conclusion, tort acts as a means of: loss distribution, risk allocation, deterrence and perhaps most importantly as a means of corrective justice when a party has suffered harm. Duty, breach of duty, causation and remoteness are all control methods but, duty, by being the first hurdle that a successful claimant must jump over, is the most effective way to mask the policy considerations made by judges in controlling the ambit of negligence. The courts by trying to, as Whitting suggests, predict the effect of newly established duty situations on future behaviour is unsatisfactory. Buckland argued that the duty concept is “an unnecessary fifth wheel on the coach, incapable of sound analysis and possibly productive of injustice.” As society evolves, the tort of negligence with the various fields it incorporates must also evolve. The use of policy in doing this has limited the scope of new duty situations and could create injustice and has given the judiciary too much discretion in determining so called policy. If the courts were to rely solely on legal principle or precedent, new duty situations could arise incrementally and better help to create certainty in the law of tort.
2,486 Words.
Bibliography
Acts of Parliament
Defective Premises Act 1972 Ch
Books
BAGSHAW, R. and McBRIDE, N. J. 2008. Tort Law. 3rd edition. Harlow: Pearson-Longman
CANE, P. 2006. Atiyah’s Accidents, Componsation and the Law. 7th edition. Cambridge: Cambridge University Press
DEAKIN, S. JOHNSTON, A. and MARKESINIS, B. 2008. Makesinis and Deakin’s Tort Law. 6th edition. Oxford: Clarendon Oxford University Press
DWORKIN, R. 1986. Law’s Empire. Cambridge, Massachusetts: Belknap Press
HARLOW, C. 2005. Understanding Tort Law. 3rd edition. London: Sweet & Maxwell Ltd
LINDEN, A. M. 1982. Canadian Tort Law. 3rd edition. Toronto: Butterworth & Co
LUNNEY, M. and OLIPHANT, K. 2008. Tort Law Text and Materials. 3rd edition. Oxford: Oxford University Press
ROGERS, W. V. H. 1994. The Law of Tort. 2nd edition. London: Sweet & Maxwell Ltd
VAN GERVEN, W.LEVER, J. LAROUCHE, P. VON BAR, C. and VINEY, G. 1998. Cases, Materials and Text on National, Supranational and International
Tort Law: Scope of Protection. Oxford: Hart Publishing
Cases
Anns v Merton [1978] AC 728
Caparo Industries plc v Dickman [1990] 2 AC 605
Cok v Durant [1377], Calendar of Plea and Memoranda Rolls 1364-81, 235
Donoghue v Stevenson [1932] AC 562
Heaven v Pender (1883) 11 QBD 503
Le Lievre v Gould [1893] 1 QB 491
Stovin v Wise [1996] AC 923
Sutherland Shire Council v Heyman [1985] 60 ALR 1
Chapters in Edited Books
STAPLETON, J. 1998. Duty of Care Factors: a Selection from the Judicial Menus. In: P. CANE, and J. STAPLETON, (eds). 1998. The Law of Obligations. Oxford: Oxford University Press
WIER, T. 1998. The Staggering March of Negligence. In: P. CANE, and J. STAPLETON, (eds). 1998. The Law of Obligations. Oxford: Oxford University Press
Journal Articles
Journal Articles (electronic)
WITTING, C. 2005. Duty of Care: an Analytical Approach. Oxford Journal of Legal Studies [online] 25. [Accessed 9th March 2009], pp.33-63. Available from World Wide Web: <http://www.westlaw.com/>
Lecture Notes
RAFFIELD, P. 2008. “Duty of Care since Donoghue v Stevenson”, lecture notes distributed in the topic LA124 Tort Law. Warwick University, L3 10th October
Stapleton, J. 1998. Duty of Care Factors: a Selection from the Judicial Menus. In: P. CANE, and J. STAPLETON, (eds). 1998. The Law of Obligations. Oxford: Oxford University Press, at 60.
Cok v Durant [1377] Calendar of Plea and Memoranda Rolls 1364-81,235.
Heaven v Pender (1883) 11 QBD 503.
Le Lievre v Gould [1893] 1 QB 491.
Donoghue v Stevenson [1932] AC 562.
However contentious the use of the word “omissions” may prove, which are generally not actionable.
LUNNEY, M. and OLIPHANT, K. 2008. Tort Law Text and Materials. 3rd edition. Oxford: Oxford University Press, at 123.
Lord Macmillan Above n 8 at 619.
Home Office v Dorset Yacht Co Ltd. [1970] AC 1004.
Lord Reid, Above n 13 at 1027.
Anns v Merton LBC [1978] AC 728.
Yeun Kun Yeu v Attorney General of Hong Kong [1988] AC 175.
Murphy v Brentwood District Council [1990] 2 All ER 908.
Caparo Industries plc v Dickman [1990] 2 AC 605.
Sutherland Shire Council v Heyman [1985] 60 ALR 1 per Brennan J at 43-44.
Stovin v Wise [1996] AC 923, per Lord Nicholls at 923.
WITTING, C. 2005. Duty of Care: an Analytical Approach. Oxford Journal of Legal Studies [online], pp.33-63. At 63.
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211.
BAGSHAW, R. and McBRIDE, N. J. 2008. Tort Law. 3rd edition. Harlow: Pearson-Longman, at 192.
BUCKLAND, as quoted by: Above n 11 at 123.
![For liability to be established one of the principle elements is that of whether a duty of care was owed by the defendant to the claimant, such as in the case of Donoghue v Stevenson [1932] A.C. 562.](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/93070/listing/93070_1.jpg)
