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

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.

Another case to illustrate the point whereby a duty of care is ultimately a question of policy is the case of Osman v Ferguson [1999]. The applicants were the wife and son of a man who had been shot and killed by a school teacher who had become infatuated with the son whilst working at his school. The applicants commenced an action against the Metropolitan Police under English law, alleging that the force had been negligent in failing to take adequate steps to ensure that the teacher did not harm them and in not arresting him earlier than was attempted. An application by the Metropolitan Police to strike out the claim as disclosing no cause of action was successful before the Court of Appeal, the court being bound by the decision in Hill v Chief Constable of West Yorkshire.

As the two cases show, even where it is found that a public body has been negligent, the courts have been quick to assert that there exists no duty of care on the part of that body and that cases should be struck out on this basis.The case of Waters v Comr of Police of the Metropolis [1997] concerned the alleged failure of the police to prevent sexual harassment. Again, this case was struck out on grounds of it being non actionable as the court was bound by the decision of Hill v Chief Constable of West Yorkshire.

In Caparo Industries plc v Dickman [1990] a test was assumed to have developed from the findings of the case which laid down a three-stage procedure for determining whether or not a duty of care exists in a given situation. Most relevant to the case, the third requirement provided that the imposition of a duty should be fair, just and reasonable in regards to policy.

In examining how far policy decisions are extended to provide defences to public bodies, the case of Bolam v Friern Hospital Management Committee [1957] can be used where the defendant is considered to be a professional or skilled person. In this case the claimant sued doctors in negligence on the basis that he was not warned of the risk of fracture involved in specific medical treatment. he sustained fractures resulting from his medical treatment. The case was dismissed as the doctor was found to not be liable for negligence. The case was seen to have given protection to medical practitioners. In later cases, the test applied in this case was extended to imply that ‘the professional practice will not be reviewed by the courts’

The practical effect of denying a duty of care is to provide a complete or partial immunity applying to certain types of defendant. Findings of ‘no duty of care’, safeguards institutions from all claims, no matter how carelessly they have behaved. Whether or not a duty of care is owed is determined without regard for the defendant’s actual degree of fault. The striking out procedure represents a very significant weapon in the hands of defendants, enabling them to deal quickly and cheaply with ill-founded claims without incurring the expenses associated with full trial.

However, in applying the aspect of duty of care in cases not within the scope of public policy, it could be safe to say that applying a duty of care is more freely applied in comparison to that of public policy cases. This would illustrate that duty of care may not, after all, be a question of policy.

In Donoghue v Stevenson [1932] Lord Macmillan asserted that the courts posses the power to create new duty situations expanding the area of liability. The Caparo test may be applied here in its fuller form whereby the existence of a duty of care is subject to the satisfaction of the three stages. It is necessary to show that a plaintiff and defendant were in a relationship of proximity and that it would be ‘fair, just and reasonable’ to impose a duty on one party for the benefit of the other and that there should exist the concept of the foreseeability of harm. This can show that where the application and existence of a duty of care is often subject to policy arguments, it would seem that in other areas, there is a wider scope for which to determine or establish a duty of care. There are categories which caters for proximity which may arise between two people such as the duty of care imposed on a parent towards a child or the duty of care imposed on a rescuer to aid a drowning person.

The recent implementation of the Human Rights Act [1998] created a tremendous impact on the way in which the courts interpret and apply the existence of a duty of care. It is seen that with further implementation of this Act into the United Kingdom, the ability of courts to strike-out cases on grounds of public policy will be in breach of the provisions of the Act and Convention rights. The case of Osman v United Kingdom [1991] was regarded as a landmark case and represented a shift away from the decisions commonly taken by judges on the grounds of policy. It was found that in deciding the case, the English courts did not comply with Art 6 of the Convention which provides a right to a fair trial. It was held that by the English courts striking out the case of Osman in the House of Lords, they were in breach of Art 6.

Moreover, the case has made judges more cautious in striking-out cases and has resulted in their change of attitude. Judges have been seen to gradually incorporate elements of the Human Rights Act in their judgements. In light of Osman v United Kingdom, it would seem that the immunities awarded to particular bodies against negligence claims cannot be sustained any longer. Also as a result of the case and Acts, policy arguments overriding the individual’s needs cannot be enforced.

As a matter of opinion, it would seem that the outcome of Osman v United Kingdom put an end to the injustice suffered at the hands of the English courts. It created new dimensions for the implication of duty of care and now it is possible to extend a certain degree of duty of care to bodies who have acted in negligence but who have previously been found to not be liable. The case heralds a new era for justice as it incorporates the protection inferred upon citizens by the Human Rights Act [1998]. This is beneficial as in a sense, the possible continuation of immunity of public bodies would have ultimately resulted in extreme abuses of power.

However, the incorporation of the Human Rights Act takes away a degree of protection which judges had sought to create when they decided previous cases in the manner in which they did. This protection was that of protecting society and the institutions from the opening of floodgates which would in turn deplete the monetary sources available. It could also be seen that with the incorporation of the Human Rights Act the possibility for fraudulent claims would increase therefore causing particular financial detriment to public authorities. For example: an argument for awarding medical bodies a certain degree of immunity from liability was that it protected an already chaotic and deteriorating health service. In imposing liability would mean that the health service would suffer at the rise in claims of negligence against them. Therefore, the purpose for existence would be defeated where health professionals express concerns over the possibility of negligent actions against them creating defensive practices. Defensive practices have started to increase within the medical profession and in the U.S.A these defensive practices have been taken to the extreme whereby consent is needed for virtually all kinds of medical practices which would otherwise be considered as ‘standard’ practices. It remains to be seen whether or not EU law provides a degree of protection against the possibilities of a particular influx of claims against public bodies, as there needs to be a balance between individual justice and general public needs.