Policy Decisions and Duty of Care Flashcards
Most law relating to negligence is…
Common law (judge made)
Why do judges exercise caution when deciding whether to impose liability?
To not create an avalanche of new claims.
Decisions of judges are known as…
Precedents
Precedent
Past decision of judges create law for future judges to follow.
If a Point of law in a current case and previous case is the same then…
The court hearing the case should follow decision in previous case, providing fairness and certainty.
Binding Precedent
A case from a senior court that must be followed in future cases.
Persuasive Precedent
Part of the judgement that should be followed in similar cases, is not binding, a reason must be given for not following it.
Why are policy decisions there?
To create a precedent that is fair, just and reasonable.
What do judges take into account?
- Loss allocation
- Floodgates
- Practical Impact
Loss Allocation
Who can afford to bear the loss? Any insurance? Either body funded by a taxpayer?
Floodgates (Claim Volume)
Will imposing the liability cause a flood of new claims? What would the impact of this be?
Practical Impact (Standards)
Will they be raised, will essential funds be diverted away from frontline activities to defend legal claims?
Where do issues arise?
In the context of public funded bodies like CPS, local authorities and emergency services.
Morality of Public Funding Case: Caparo v Dickman
C bought shares in D company in reliance of accounts which stated they had made a pre-tax profit, but they actually made a loss. C brought a claim saying they were negligent.
Held: No duty of care owed, not sufficient proximity between C and auditors, auditors did not know of C’s existence, nor the purpose of what accounts were being used for.
Supreme Court judgement in Robinson v Chief Constable of West Yorkshire
Lord Reed:
Hill is not ‘authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime’.
