Given the difficulties in understanding and applying the tests for establishing novel duties of care in Caparo v Dickman, would it be better to return to the test set out in Anns?
This paper seeks to examine whether a retreat to the test set out in Anns v Merton London Borough Council is desirable, given the complexities of the tests established by Caparo Industries plc v Dickman. To qualify a return to the Anns’ approach, this paper has set out two requirements: departure from the Caparo’s tests must be necessary, and the Ann’s two-stage test must be able to remedy the obscurities created by the Caparo’s approach. Points of discussion include the survival of the Caparo’s approach, the feasibility and practicality of the two-stage test as a substitute, and the formulation of new alternatives. This paper will then go on to conclude that it is unfeasible to revert to the test established in Anns.
In assessing whether the two-stage test should be readopted, the first threshold is the survival of the current test for duty of care. To establish a novel duty of care under first part of the Caparo test, the damage suffered by the claimant must be reasonably foreseeable; there must be a relationship of proximity between the claimant and the defendant; and it must be ‘fair, just and reasonable’ for the court to impose a duty of care. Although it seems to be a methodical approach in finding novel duties, the notions of foreseeability, proximity and fairness are very vague and abstract concepts which are incapable of giving explicit guidance to judges as to how these requirements can be satisfied. For instance, it does not tell the courts what facts need to be established for a given legal claim to arise. Lord Roskill referred the three requirements in Caparo as ‘labels or phrases descriptive of the very different factual situations which can exist in particular cases’. Due to the fact that the three stages are not capable of any precise definition, it is almost impossible for the courts to apply the test in ways which seem impartial to the public and critics. The courts cannot declare that the test has been applied rightly by referring to any guidelines because there is none and it becomes easy to attribute courts’ decisions to any factors. For example, some critics claimed that ‘the concept of proximity “masks” the real policy-based reasons for arriving at particular duty determinations’. As the second part of the Caparo’s test, the incremental and by analogy approach imposes a redundant constraint on the courts and signifies a return to pre-Donoghue position. This is retrogressive, tantamount to an impediment to the development of law. However, despite there are much difficulties in using the Caparo’s tests, Lord Mance in Customs & Excise Commissioners v Barclays Bank plc recognised that the approach has provided ‘a convenient general framework although it operates at so high a level of abstraction’. Also, cases decided based on the three-stage test suggest what is ‘fair, just and reasonable’ to the courts, but these merits of the approach are trivial. In short, the difficulties in applying Caparo’s tests have indicated that a departure from the current approach is necessary. This is consistent with the attitude of the House of Lords (Supreme Court) in the Nicholas H’s case when the three-stage test was explicitly ignored.