To what extent do principle and policy affect law?

“Duty is the primary control device which allows the courts to keep liability for negligence within what they regard as acceptable limits and the controversies which have centred around the criteria for the existence of a duty reflect differences of opinion as to the proper ambit of liability for negligence”. [Winfield & Jolowicz, Tort, 17th edn, 134]

Discuss, with reference to 3 cases which you have studied.

         The first element of negligence under Tort Law is the existence of a legal duty of care. This is, essentially, the relationship between the defendant and the claimant by which there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant.
The leading case in this area of law is undoubtedly Donoghue v Stevenson[1]. In this situation there was no binding contract between the two parties, however liability was found due the fact that product sold caused material physical damage to the claimant due to the negligence of the defendant. Here, the already established manufacturer, consumer relationship applies. Though, Lord Aitkin then formulated the “neighbour principle” to limit the scope of future claims on the grounds of what the courts regard as acceptable. Only when this principle could be applied, could there be a duty of care.
        However, various legal journals suggest that Donoghue v Stevenson was fabricated slightly by the courts in order to establish the duty of care principle in itself. The fact that the case was ultimately settled out of court and the facts were never established in a court of law supports the idea.
         Today, the existence of a duty of care is established by using the Caparo v Dickman[2] test (an extension of the original Wilberforce two-stage test in Anns v Merton[3]) by which Lord Bridge formulated three stages which must be satisfied in order for a duty of care to exist. These are; the damage to claimant is foreseeable, there must be a relationship of proximity or neighbourhood between the claimant and the defendant and the court considers it fair, just and reasonable that the law should impose a duty. The last stage of this test in particular, gives the judges a certain amount of authority as to what they may consider as fair, just and reasonable. They therefore have the power to control duty as to what they think is acceptable.

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         A case which encompasses the controversies around decisions the courts have made to control liability is Capital & Counties plc v Hampshire[4]. Here, although the fire brigade were held liable on the duty to take reasonable care not to make the condition worse, it emerged that there is no common law duty to answer emergency phone calls due to lack of proximity between emergency service and the maker of call. Here the “floodgate” argument applies, as the number of emergency callers is too great for the fire brigade to owe a duty of care to each caller. Here the duty of care is controlled by the courts through policy reasons if they were to impose a duty of care on services such as the fire brigade, the courts would be consequently inundated. However, one can argue that although applying the floodgate argument is reasonable, it is not sufficient enough to allow these services to owe no duty of care at all. The public pay taxes in return for these services, therefore they are effectively employing them through the government to protect them should such an incident arise, creating (to a certain extent) the established employer, employee relationship.
Also, three other elements of negligence are considered when deciding liability. Although significant as distinguishing a duty is, it’s arguable that causation may give more scope by which the courts can control liability to limits they see reasonable. The categorised elements of negligence can be interchanged, as Lord Denning suggests duty, breach of duty and causation “continually run into one another”.[5] As a consequence to this statement, the courts are able to use them as strategies to either control or extend liability for negligence in accordance to what their overall opinions reflect.
        Further, there are many cases where duty cannot legally control liability for negligence under what the courts see acceptable since the relationship between the claimant and defendant is already established. Using Donoghue v Stevenson as an example, the manufacturer, consumer relationship already applies, it cannot be argued by the courts that a duty of care was nonexistent. Therefore the element of control through duty in these cases is lost.
        The existence of a duty of care is undeniably an area of negligence which can be controlled by the courts, either through policy reasons or through their application of the Caparo v Dickman 3 stage test. However, the level of control they have is limited, as not only are decisions are bound by precedence but they must agree with the overall opinions of the courts.