Duty of Care Flashcards
what was the state of duty of care in victorian england? (incl. 2 cases)
- Heaven v Pender - rejection of a generally applicable duty test
- Le Lievre v Gould - emphasis placed on the concept of physical closeness/proximity between C and D
what was the ‘first’ advancement in duty of care? (incl. case)
Donoghue v Stevenson (Lord Atkin) - neighbour principle; take reasonable care to avoid acts or omissions which can be reasonably foreseen to injure your neighbour
Lord Atkin and proximity
- the relationship between C and D should be suitably close
- ‘persons who are closely and directly affected by my act’
commentary: Atkin’s neighbour principle
Atkin commented on his own principle, stating:
- ‘[A person] is not to injure his neighbour by acts of negligence, and that certainly covers a very large field of the law’ - implies broad applicability
- duty of care is really concerned with the question ‘what would i expect of people when they interact with me closely?’
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commentary: other academics on Atkin’s neighbour principle
Fleming:
- ‘a sacrosanct preamble to any judicial disquisition on duty’ - neighbour principle is a great success; the ‘go-to’ reference point on duty of care
- HOWEVER it contains a ‘noticeable ambiguity’ - is it merely a test of foresight, or does it make allowance for other factors? (raising a tension between principle and policy)
reasonable foreseeability? (incl. case)
- British Virgin Islands v Hartwell - the concept of reasonable foreseeability embraces a wide range of degrees of probability; it gives judges discretion about how they decide cases
Lord Wilberforce’s two-stage duty test (incl. case)
Anns v Merton Borough Council:
1. ‘sufficient relationship of proximity or neighbourhood’ between C and D?
2. ‘considerations which ought to negative, or to reduce… the scope of duty’?
Lord Wilberforce on the second limb of his test
‘it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist’
- society needs a doctrinal device to respond to novel sets of circumstances
criticisms of Lord Wilberforce’s test
- too broad; encouraged too many people to bring claims to the court
- also led to the courts taking an approach to duty which was heavily reliant on policy, which caused uncertainty as to how claims would be decided
in what case was Lord Wilberforce’s duty test rejected?
Murphy v Brentwood DC
what is Lord Bridge’s duty test? (incl. case)
Caparo Industries plc v Dickman:
1. reasonable foreseeability of harm
2. relationship of proximity
3. is it ‘fair, just and reasonable’ to impose a duty?
conceptual blurring within the caparo test?
- in the CA, Bingham MR noted that the interrelationship between reasonable foreseeability of harm and proximity is very close
- there is also an interrelationship between proximity and justice, fairness and reasonableness - if there is policy, there is a need to consider proximity of the parties (James McNaughten)
Lord Oliver on proximity in Caparo
- Proximity is ‘no more than a label’ and is ‘not a definable concept’
- Proximity is to be used ‘pragmatically’ by judges (exercising of discretion)
incremental development? (incl. case)
Sutherland Shire Council v Heyman - ‘the law should develop novel categories incrementally and by analogy with established categories’ (Brennan J)
american approach to duty of care? (incl. case)
- Hand Formula, US v Carroll
- D (cost of taking precautions) < P (probability of harm) x L (gravity of harm)
objections to the hand formula?
- The dignitarian objection - should our security be a matter of cost-benefit calculation?
- The empirical objection - can we put precise figures on the cost of taking care, probability of harm and gravity of harm?
academic commentary: the impossibility of generalising
Fleming - ‘no generalisation can solve the problem upon what basis a duty must arise out of some “relation”, or some “proximity” between the parties’
academic commentary: ‘control devices’ in duty of care
Fleming - ‘duty of care’ and ‘remoteness’ act as ‘control devices’ to exercise discretion. Cases can be read very narrowly or broadly (and it can tip either way towards C or policy)
what is the australian courts’ approach to duty? (incl. case)
salient features approach (Sullivan v Moody) - consideration of both principle and policy (in that order)
critique of the australian approach to duty
Kirby J - the approach lacks clarity; it is important for the courts to know what they are ‘looking for’ when assessing duty claims (Woolcock Street Investments)
arguments against a duty of care (incl. academic)
Howarth proposes some arguments when a duty should not arise, such as:
1. pure omissions
2. allocation of public resources (to be decided by other governmental organs)
3. integrity of other legal rules (policy; when imposing a duty would contradict statute)
4. absolute public benefit
5. lack of proximity between C+D
cases which discuss caparo (x2)
- Stovin v Wise - Lord Hoffmann argues that when policy is ‘properly analysed’, it should not matter whether the judge uses Anns or Caparo
- White v Jones - it is ‘legitimate’ to ‘extend the law’ using the incremental approach by way of analogy advocated in Caparo
academic commentary: criticisms of the caparo test
Hartshorne: judges have been using the 3rd limb of caparo as a ‘policy longstop’ to negate the finding of a duty
what is the current approach to duty (incl. case)
Robinson v Chief Constable of South Yorkshire Police - courts are first to apply existing principles and then either turn to incremental development via ‘established authorities’ and through use of caparo in ‘novel’ cases. Lord Reed states that ‘no policy can override principle’.
post-Robinson cases (x3)
- James Bowen v Commissioner of Police for the Metropolis - while applying established principles, in dicta, there was transparent acknowledgement of the influence that policy factors could’ve had on the decision
- Darnley v Croydon Health Services NHS Trust - strict use of Robinson, using established principles to reject the claim (with no discussion of policy as the case was straightforward under the test)
- Poole BC v GN - a ‘novel case’; rejected under policy decision grounds, but shows the willingness of the courts to still exercise policy when needed
academic commentary: in favour of the Robinson approach
- Tofaris: Robinson is a ‘return to orthodoxy’ and acts as a ‘blueprint’ for the future development of duty cases
- Nolan: a system based on pre-existing precedent does not make it ‘incapable’ of development
dissenting judgments in Robinson
- Lord Mance - it is ‘unrealistic’ to suggest that courts aren’t influenced by policy, even when assessing established principles
- Lord Hughes - policy-based reasoning has been influential throughout police duty claims because they have all been novel claims which warrant a policy consideration (i.e. Hill); policy should be viewed as more than just a ‘supporting argument’
academic commentary: against the Robinson approach
Cameron: Reed’s test could give rise to ‘rigidity’ and resistance to change int he development of negligence law
academic commentary: does Robinson endorse policy reasoning?
Arnell: Robinson marked a ‘re-interpretation’ of duty of care and by doing so, Reed’s approach is a concealment of the courts’ reliance on policy under the guise of policy.
