'The existence of a duty of care is ultimately a question of policy'. Discuss.

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‘The existence of a duty of care is ultimately a question of policy’. Discuss.

In previous years, the concept of duty of care has been applied by various courts to act as a control device in order to determine and limit the categories of who can bring claims in negligence and in what circumstances. Worryingly, judges have shown the ability to strike out cases by deciding that a case is non-actionable and this ability has mostly been exercised in cases concerning public policy. It is here where it is seen that a duty of care will only exist if it does not run contrary to the ideas of public policy. Policy has played an important part in limiting the scope of the duty of care. So is the existence of a duty of care, ultimately a question of policy?

To a certain extent, it can be seen that the existence of a duty of care, is ultimately a question of policy. Until very recently courts have has discretion as to whether or not to attach a duty of care to a particular public body and it is these decisions which have been influenced by policy arguments and decisions. This approach has been adopted particularly where there is an overriding 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 using arguments that reflect their concerns should a different approach be taken. There has been a particular need to prevent the ‘opening up of floodgates of liability’. The underlying concern of this argument is that, particularly in influential cases, numerous different claims are likely to arise out of a single incident. Other arguments put forward in defence of limiting the application of a duty of care to a public body is that large liabilities could result in detrimental effects on society. Already sparse public funds could be depleted further due to the costs of litigation or as a result of defensive practices where public organisations adopt practices which endeavour to prevent action against them. The general idea when considering public policy has been that the needs of the community takes precedence over the individual’s justice and therefore policy arguments will override.

Organisations which have, in the past, been protected against claims being sought them are those such as the police service, the fire service, local education authorities and social services. The police, for example, appear to have extensive immunity from liability for negligence arising in the performance of their statutory responsibilities or failures to perform them. The case of Hill v Chief Constable of West Yorkshire [1989] was an example of a case whereby a duty of care was found to have not been imposed on the police even though they were negligent in failing to apprehend the murder of the claimant’s daughter earlier. The argument was that had they done so, they would have prevented the daughter’s death.

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The House of Lords held that in the circumstances, the police did not owe a duty of care and on that basis the case was not actionable and therefore struck out. Various policy arguments were put forward in defence of the judgement. These were that conferring a duty of care upon the police might distract them from their important duties and as a result would not make the police more efficient. It was also argued that liability might make police exercise their functions in a detrimentally defensive frame of mind.

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A good essay that attempts throughout to answer the question set. There is some overreliance on primary texts and occasionally arguments could be developed further. But the concluding paragraphs, that make reference to recent developments in this area of law in the context of the Human Rights Act, demonstrates an impressive understanding of tortious public policy issues.