How far has the test for duty of care in negligence provided in Caparo Industries plc v Dickman [1990] been affected by the case of Osman v U.K. [1998]?

Many recent cases that involved consideration of fairness, justice and reasonableness have been influenced by the decision of the House of Lords in Hill v Chief Constable of West Yorkshire Police. The police owed no duty of care to an individual member of public .It would be impossible to protect all members of crime that would seriously affect the police service. As a matter of public policy the police was immune from actions for negligence in relation to investigation of crime. Lord Keith doubted whether ‘imposion of a duty of care would have any positive results. In some instances the exercise of a function determination of a duty of care may lead to detrimentally defensive frame of mind’’One of the main policy issues in determination duty of care is the floodgate argument.  Another which plays a very important role is the intervention of Parliament, and, finally the plaintiff should seek other ways to proceed apart from suing the defendant in tort.

            The courts also consider whether it is appropriate to impose a duty of care where an alternative remedy already exists. In Hill v Chief Constable of West Yorkshire Police under the Criminal Injuries Compensation Scheme would recover the plaintiff’s losses. ’Hill represents an excellent illustration of the interaction between policy issues, and the likely effects of the imposition of a duty of care’.

        In Osman v Ferguson the Hill’s immunity was applied to deny a duty of care where actually there was proximity of relationship between the plaintiff’s family and the police. The police knew about the harassment of Osman’s family but did nothing to prevent it. In the Court of Appeal the policy was extended beyond the failure of police to apprehend criminals, however, the claim was rejected.

        After the failure in domestic court the plaintiff’s family brought a claim against the United Kingdom in the European Court of Human Rights where it was held that a ‘blanket immunity’ was in breach of Article 6(1) of the European Convention on Human Rights. Articles 2 and 6 were considered but dismissed by the court. The ECHR held that all relevant considerations should ‘ be examined on the merits and not automatically excluded by the application of a rule which amounted the grand of an immunity to the police’.          

The Caparo test reduced the number of cases in negligence against the public authorities that could actually go to trial. The European Convention does not prevent courts taking into account public policy issues. While considering whether to exclude a received duty of care on policy grounds in order to grant immunity to some defendants. After the case of Osman v UK, the Human Rights Act1998 requires courts to balance immunity to the interference with the claimant’s rights.

Although ruling in Osmant advantageous it has received a strong criticism in judiciary. For instance, Lord Hoffman defends immunity stated by Hill along with other recent cases. In Stovin v Wise he stated two conditions that need to be satisfied for a duty of care to arise when public authorities fail to exercise their statutory power. Lord Brown-Wilkinson complained that the reasoning of the ECHR is extremely difficult to understand, thus has left tort in a very unsatisfactory state of affairs.

It is been observed that foreseeability and proximity are convenient labels and the question of what the foreseeable harms means could be easily changed. It is the test of  ‘fairness, justice and reasonableness’ that allows the courts to keep the tort of negligence within reasonable bounds. However, it cannot be regarded as a perfect balance for courts since Osman case the policy considerations are left to be uncertain. Following the decision of ECHR the question on policy whether it is fair just and reasonable to impose a duty of care could be only decided by a judge on a full trial. Therefore, the Osman’s decision does not change anything in ‘immunity blanket’ but only point out the way it considers appropriate to approach them. At the same time it is impossible for the courts to proceed without any regards for public policy and social advantage.