Negligence - duty of care

Question 1

Duty of care in late-victorian England (2)

Answer 1

• Heaven v Pender
  o Generally applicable duty of care test – was rejected
• Le Lievre v Gould
  o Narrows law on duty of care (emphasis in physical closeness/proximity between claimant and defendant)

Question 2

1st attempt to generalise duty of care (3)

Answer 2

• Donoghue v Stevenson
  o Lord Atkin neighbour principle – 1st attempt to generalise test
  o ‘you must take reasonable care to avoid acts or omissions you can reasonably foresee would be likely to injure your neighbour’
  o Concerned with proximity
  o Fleming – has ambiguity, does it exclude policy from the law and focus only on principle?
• British Virgin Islands v Hartwell
  o Concept of reasonable foreseeability embraces a wide range of degrees of probability from highly probable to possible but highly improbable
  o Does not give a standard of liability
• Dorset Yacht v Home Office
  o The neighbour principle ought to apply unless there is some justification for its exclusion

Question 3

2nd attempt to generalise duty of care (2)

Answer 3

• Anns v Merton
  o Lord Wilberforce’s two stage test
  1. Is there a ‘sufficient relationship of proximity or neighbourhood’ between claimant and defendant?
  2. Are there any ‘considerations which ought to negative, or to reduce the scope of duty’?
  o 1st aspect addresses Atkin’s neighbour principle
  o 2nd aspect addresses Flemings concerns by implementing policy considerations
• Murphy v Brentwood
  o Disapproved Anns test – concerned courts would be flooded by claims by addressing pure economic loss

Question 4

3rd attempt to generalise duty of care (2)

Answer 4

• Caparo v Dickman
  o Lord Bridge test
  1. Reasonable foreseeability of harm
  2. A relationship of proximity
  3. Court should consider it fair, just and reasonable to impose a duty of care
  o Includes policy considerations
• Sutherland Shire Council v Heyman
  o Incremental development
  o Caparo approved this approach
  o Law should develop novel categories incrementally and by analogy with established categories
  o Case before judges must remind them of previous cases – extend law incrementally

Question 5

Economic approach to duty of care (1)

Answer 5

• US v Carroll Towing
  o The Hand Formula – impose a duty of care where the cost of taking care is less than the expected harm (gravity and probability)
  o Impose duty of care where B < P x L
  o B = cost of taking care
  o P = probability of harm
  o L = gravity of harm
  o P x L = expected harm
• Objections to Hand formula
  o Dignitarian approach – should our security be a matter of cost-benefit calculation?
  o Empirical objection – can we put precise figures on cost of taking care, probability of harm and gravity of harm?

Question 6

Generalisation of duty of care (academic)

Answer 6

• Fleming
  o Generalisation cannot solve the problem upon what basis a duty must arise out of some relation or proximity between the parties
  o Control devices – duty of care and remoteness are control devices judges use to develop doctrine in ways that build flexibility into the law – flexibility blurs distinction between policy and principle

Question 7

Caparo test in action (4)

Answer 7

• Marc Rich v Bishop Rock Marine
  o D indicated temporary repairs to vessel would be adequate – ship sank and C’s cargo was lost at sea
  o C able to meet first two Caparo requirements (reasonably foreseeability of harm and proximity) but establishing a duty of care would not serve the public interest so claim rejected – not fair, just or reasonable (policy consideration
• White v Jones
  o Although case involved pure economic loss (C unable to benefit under the will due to solicitor’s mistake) it was necessary for courts to extend law to ensure solicitors behave reasonably – fairness, justice and reasonableness policy considerations meant it was appropriate to extend law
• Stovin v Wise
  o As long as policy is considered, it does not matter which approach is used (Anns or Caparo)
• Sullivan v Moody
  o Australian High Court abandoned Caparo approach
  o Introduced ‘salient features approach’
  o Salient features embrace considerations of principle and policy – addresses matters of principle before turning to policy

Question 8

Current test for duty of care (1)

Answer 8

• Robinson v Chief Constable of West Yorkshire Police
  o Lord Reed’s attempt to clarify law on duty of care
  o There should not be one generalised test for negligence law
  1. Starting point – established precedent for clear cases to determine a duty
  2. Incremental development – Sutherland – look to established categories such as doctor/patient etc and develop law incrementally from there in novel cases
  3. Finally look at Caparo in novel cases – justice, fairness and reasonableness – only in most novel cases and after considering above stages should judges consider policy
  o Determine duty according to principle first and then afterwards look to policy

Question 9

Critical commentary for duty of care (4)

Answer 9

• Tofaris
  o Where there is an authority establishing a duty of care is owed, courts must follow that authority
  o To consider fairness, justice and reasonableness in a clear case would be unnecessary as the decision to recognise a duty is already based on considerations of justice and reasonableness
• Morgan
  o Attempting to fit a case into an established principle where it does not fit leads to unnecessary formalist gymnastics – leads to problems and therefore should look to incremental development and Caparo
• Nolan
  o Benefit of Robinson approach is there is no one general test for duty – applying one standard test would lead to low standard of judicial reasoning
• Plunkett
  o Judge’s primary task is to balance giving justice to both claimant and defendant and also considerations of community welfare – balance principle and policy