This is Part II of a series of blog posts exploring the scope of the ‘duty of care’ and the frontiers of the tort of negligence.

In this second post, I will argue that the duty of care should be decided solely on the basis of an open discussion and weighing of legitimate policy concerns. Before discussing these issues, it is important to first consider the nature of the duty of care. The duty of care concept has been linked, historically, to a tool used for control of the jury in negligence cases as early as the 19^th century1. Nowadays, the duty of care remains very much a control device (albeit with no jury to control). This stems mainly from the fact that a finding of no-duty will allow the court to strike out the case without the full expense of trial2.

We must also keep in mind that the duty of care is but one of many hurdles the claimant must pass in order to succeed in his claim. In light of this, I would argue that foreseeability has no place in the duty of care. Indeed, the issue of foreseeability is aptly considered at the stage of ‘remoteness of damage’. Furthermore, as we have seen throughout this essay, the concept of ‘foreseeability’ is extremely wide and is also one of these labels behind which policy is disguised3. As seen previously, proximity also suffers from these same shortcomings. Therefore, in the interest of openness, I would discard both ‘foreseeability’ and ‘proximity’ from the determination of the duty of care. Instead, I would allow the policy reasons that would lead a judge to say there was ‘foreseeability’ or ‘proximity’ to be discussed openly. Such an approach has been suggested many times by Lord Denning4, and recognised by Lords Rodger5 and Wilberforce6, as well as Lord Pearce, who aptly said that ‘How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts’ assessment of the demands of society for protection from the carelessness of others’7.

As I have suggested that policy factors should be the sole elements in the determination of the duty of care, we must now look further at the suitability of such an approach. I will not attempt to produce a list of legitimate factors that should be weighed8 but will instead focus on the concerns that have been raised regarding this approach.

The first issue is that of the separation of powers. Some critics have claimed that by making policy-based decisions, the courts are effectively stepping onto Parliament’s territory9. This proposition is fairly startling in that under our constitutional arrangements there has never been a rigid or dogmatic application of this doctrine. As we have seen, the development of the common law is ripe with policy-based decisions. This claim stands even less credible in the wake of the Human Rights Act10, under which the courts now have the opportunity to quash an administrative action on human rights grounds. Finally, the courts and the common law system offer flexibility which Parliament is unable to match. Indeed, the courts, in many cases, may well be better equipped to respond to social changes than Parliament, which is notoriously slow at passing legislation.

The other main argument against judicial policy reasoning is that of the lack of empirical evidence and the claim that the courts are ill equipped to consider these matters. As Jonathan Morgan11 quite rightly argues, given the failures of HMG’s regulatory impact assessments12, why should the courts be held to a different standard? These shortcomings have not stopped Parliament from making decisions based upon incomplete or speculative cost-benefit data. This argument does, however, underline the need for the courts to proceed with caution and carefully weigh the various policy arguments in light of the evidence supporting them. An example of such a situation is to be found in Tomlinson v Congleton BC13. In this case, the costs of the protection work on the council’s land was readily available and was then extrapolated by the House of Lords in order to consider the impact to all other potential areas where people may potentially suffer injury. While such evidence may be unsatisfactory, the consequences of discarding it entirely (and the policy concerns that were associated with it) would have been disproportionally higher.

As we have seen, once rhetorical devices such as ‘foreseeability’ and ‘proximity’ or even ‘voluntary assumption of responsibility’ are removed, the decision to find a duty of care is clearly a policy based one. I have argued that policy should determine the existence of a duty of care and that this should be done with an open discussion and weighing of the legitimate competing factors. I have also underlined the need for evidence supporting the cost-benefit analyses that the courts are invariably drawn to. I will conclude by saying that in my opinion, the policy approach is the most consistent with the aims of the duty of care, namely to act as a control device before the full trial process. It is to be hoped that by evaluating the policy factors openly at this stage, the administration of justice will be swifter and will follow a more utilitarian approach, which will maximise the benefits for society.

1. IBBETSON, D. 1999. A Historical Introduction to the Law of Obligations. Oxford: Oxford University Press, pp. 178-181 & pp. 188-195 [↩]
2. See Lord Hoffman at 42 in Sutradhar v Natural Environment Research Council [2006] UKHL 33 [↩]
3. See part 1, also see Lord Hoffman at p.949 in Stovin v Wise and Norfolk CC [1996] AC 923 [↩]
4. Page v Smith [1996] AC 155 per Lord Denning at 36-37 [↩]
5. See Lord Rodger at 100 in D v. East Berks Community Health [2005] UKHL 23 [↩]
6. McLoughlin v O’Brian [1983] 1 AC 410 per Lord Wilberforce at 420 [↩]
7. Hedley Byrne and Co. Ltd v Heller and Partners Ltd [1964] per Lord Pearce at p. 536 [↩]
8. MCBRIDE & BAGSHAW. 2008. Tort Law. London: Longman, pp. 187-219 [↩]
9. per Lord Scarman in McLoughlin at p. 430 [↩]
10. Human Rights Act 1998: Ch. 42 [↩]
11. MORGAN, J. 2009. Policy reasoning in tort law: the courts, the Law Commission and the critics. Law Quarterly Review, 125, p.4 [↩]
12. GREAT BRITAIN. National Audit Office. 2007. Evaluation of regulatory impact assessments 2006-07. (Paper 606). HMSO: London [↩]
13. Tomlinson v Congleton BC [2003] UKHL 47 [↩]

This is Part I of a series of blog posts exploring the scope of the ‘duty of care’ and the frontiers of the tort of negligence.

In this series of blog posts I shall argue, from a legal realist perspective, that the decisions of the courts in England and Wales to find that the defendant owes the claimant a duty in negligence are grounded in policy reasoning, be they latent or explicit. I shall then argue that legitimate policy factors should be the sole determination of whether a duty of care is owed. For the purpose of this post, I shall define ‘policy’ as all non-doctrinal factors1.

To fully understand the effect of policy on the issue of the duty in the tort of negligence, it is necessary to briefly look back at the chaotic judicial journey of the duty of care. The modern tort of negligence is said to take its roots in Donoghue v Stevenson2, where Lord Atkin postulated that a general principle could be used to identify duty situations3. This approach was later replaced with Lord Wilberforce’s ‘two stage test’4 under which there was a prima facie duty of care established on the basis of the principle of foreseeability with policy as a limiting factor. With foreseeability being such an easy threshold, there was a mounting uneasiness at the progressive expansion of the boundaries of negligence that followed. This led the House of Lords to a series of decisions culminating in Caparo v Dickman5  where Lord Bridge put forward his ‘three-stage’ test where ‘foreseeability’ was to be paired with a requirement of ‘proximity’ as well as one of ‘fairness, justness and reasonableness’6. This test was to be applied with incremental limitations, meaning no general assumption of duty would be made and the law would need to proceed ‘by analogy [with existing cases]’7.

The outcome of the Caparo decision was in effect to reject the claim of a general principle in favour of a more pragmatic categorisation of different situations leading to a duty of care. This approach may at first seem to be more restrictive; but it does, however, allow the court the power to draw minor distinctions between sets of facts and allows them a much wider range of justifications for finding for or against liability8. It may also be said that the differences between the Anns and the Caparo test are no more than cosmetic and it has been often said that they would produce the same outcome were they both applied to the same case9. The reason for this is that, as Professor Stapleton aptly suggests, they are no more than ‘empty labels’ which are used to disguise policy considerations, words echoed by Lord Bridge himself further in his speech10 (as well as both Lord Roskill11 and Lord Oliver12 ).

Let us first look at the concept of ‘foreseeability’. Foreseeability by itself is of little use in narrowing down the scope of a duty of care due to its all encompassing umbrella and lack of clarity13. Indeed, it will invariably be assessed by a judge with his own view on what may be deemed ‘foreseeable’ and what may not14. Furthermore, I would argue that by being coupled with the notion of ‘reasonableness’, foreseeability goes even further in attempting to conceal the balancing of interests that have led the court to the conclusion that there was ‘foreseeability’15. This part of the test is also clearly redundant as, if the other criterias are met then the issue of foreseeability will also be satisfied. This has the practical effect of effectively making the Caparo test a two-staged test, similar in substance to the Anns test.

Proximity operates on a similar basis. This is clearly echoed by Lord Nichols in Stovin v Wise: ‘Proximity is a convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care’16. The concept seems to imply a certain level of pre-tort relationship before the infliction of damages. Since this is clearly not a requirement in personal injury cases, for example, this would tend to suggest that proximity is more of a control tool used to deal with potential indeterminate liability in areas such as economic loss or psychiatric injury17. The third leg of the so called ‘test’ is the requirement of ‘fairness, justness and reasonableness’. This is clearly an invitation to weigh the different policy considerations for and against liability18. Yet, as we have just seen, policy considerations will have invariably decided the two previous elements of the ‘test’.

After these general considerations, I will now seek to demonstrate that in practice policy reasoning determines the issue of the duty of care. I will do this by looking at the frontiers of negligence. It is in these areas that policy reasoning tends to transpire the most.

Firstly, let us consider the issue of the kind of damage inflicted. Personal injury and property damage cases have been fairly uncontroversial since Donoghue v Stevenson. By contrast, the area of psychiatric injury is an area of great interest to our discussion. Indeed it has been laden and even founded on policy considerations. It is a field where the Courts have long been reticent to accept that damages should be recovered in negligence19. In White v Chief Constable of South Yorkshire, Lord Steyn identified four very potent reasons that in his view justified the psychiatric/physical injury dichotomy that is to be found in the treatment of negligence claims20. This conflict can also clearly be seen in McLoughlin v O’Brian where Lord Wilberforce insisted, for policy reasons, that further limits on liability were necessary21. The policy concerns raised by his Lordship included the fear of an increase in fraudulent claims, the increase in the cost of insurance, as well as the traditional ‘floodgates’ argument. This decision led to the requirements of spatial and temporal proximity, proximity of relationship and proximity of perception for ‘secondary victims’ (Page v Smith22 ). It is, therefore, clear that the finding of a duty of care in the area of psychiatric injury is subject to a number of arbitrary principles that stem from policy considerations.

Economic loss is another area on the boundaries of negligence through which much policy reasoning transpires. Traditionally, pure economic loss has not been recoverable23 (as opposed to direct economic loss arising from physical damages or injuries). Several categories may be identified within the area of economic loss. The first two will give rise to no duty; these are ‘relational’ economic losses and losses arising from defective products. The other two may give rise to a duty: these are economic loss caused by a negligent misstatement and the ‘extended’ Hedley Byrne principle.

The policy reasons against extending liability in the first category were outlined by Lord Denning MR in Spartan Steel v Martin24. These include the fear of indeterminate liability, floodgates, and issues of loss distribution. The policy based exclusionary rules concerning loss arising from defective products were articulated in Murphy v Brentwood25.

Hedley Byrne26 held that negligent statements may be actionable if a ‘special relationship’ (based on a voluntary assumption of responsibility and a reasonable reliance) was established. The effect of this was to create yet another rhetorical label under which policy could be hidden27. This is apparent in White v Jones. In this case, Lord Goff found himself unable to justify the existence of an ‘assumption of responsibility’ and quite revealingly decided to ‘deem’ that there was such an assumption in order to hold the defendant liable and, therefore, satisfy the public’s desire for ‘practical justice’28. This concept, thus, appears to be no less of a legal fiction (claiming to have a factual basis) than the elements of the Caparo ‘test’, which we discussed previously. This conclusion was met in part by the House of Lord in Customs & Excise v Barclays29, where it was held that the ‘assumption of responsibility’ would not provide the answer in all cases. Furthermore, it was said that: ‘If the facts are properly analysed and policy considerations correctly evaluated the three tests [Caparo, voluntary assumption and the incremental test] should yield the same result’30. This clearly goes to show that the determinative issue at hand is policy, a conclusion which Lord Bingham seems to have also reached31.

Before concluding on the issue of how a duty of care is decided, I will briefly consider the issue of ‘protected defendants’, notably public authorities. This area of the tort of negligence is maybe the one where policy is the most explicitly expressed. In Hill v Chief Constable of West Yorkshire32, it was held that the police owed no duty to the public at large. The policy concerns in this decision were explicit. The main arguments were put forward by Lord Keith of Kinkel33, who argued in effect that, by imposing a duty to the police for the public at large, the police would be distracted from their mission and, therefore, less efficient. In the more recent case of Van Colle34, this policy has been confirmed, even in the case of threats that were clearly aimed at the claimant and which the police were aware of.

As we have seen so far, policy reasoning is behind all major decisions on whether to expand the scope of the duty of care albeit quite often in a disguised manner. There seems, however, to be a recent trend of exploring more openly policy factors (as in Barclays Bank or in Stovin v Wise). This has also been somewhat reflected by statutory provisions, such as the Compensation Act 2006 section 1 (although this section concerns the issue of breach).

In a follow-up post I will discuss how the issue of the duty of care should be decided.

1. MORGAN, J. 2006. The rise and fall of the general duty of care. Professional Negligence, 22 (4), p.210 [↩]
2. Donoghue v Stevenson [1932] AC 562 [↩]
3. Ibid. see Lord Atkin at p.580 [↩]
4. Anns v Merton LBC [1978] AC 728 [↩]
5. Caparo Industries Plc v Dickman [1990] 2 AC 605 [↩]
6. Ibid. see Lord Bridge at p.618 [↩]
7. Ibid. per Lord Bridge at p.634 [↩]
8. CONOGHAN, J & MANSELL, W. 1999. The wrongs of Tort. London: Pluto Press, p.19 [↩]
9. See for eg. Ibid. p.16; also Lord Hoffman at p.949 in Stovin v Wise and Norfolk CC [1996] AC 923 [↩]
10. per Lord Bridge at p. 618 [↩]
11. see Lord Roskill at p.628 [↩]
12. see Lord Oliver at p.633 [↩]
13. See Lord Goff of Chieveley at 280 in Smith v. Littlewoods Organisation Ltd [1987] 1 AC 241 [↩]
14. Op. Cit, CONOGHAN & MANSELL p. 13 [↩]
15. See p.25 in Cooper v Hart 379 F.2d 777 (Canadian Supreme Court); also see Lord Wilberforce at p.420 in McLoughlin v O’Brian [1983] 1 AC 410 [↩]
16. Per Lord Nicholls at p.932 in Stovin v Wise [1996] 3 W.L.R. 388 [↩]
17. Op. Cit. n.1, p.208 [↩]
18. ee Lord Bingham in [2006] UKHL 28 at 4, citing Kirby J at p.259 in Pierre v Apand Pty Ltd [1999] HCA 36 [↩]
19. See Dulieu v White & Sons [1901] 2 KB 669 [↩]
20. Lord Steyn at p. 436 in White v Chief Constable of South Yorkshire [1999] 2 AC 455 [↩]
21. McLoughlin v O’Brian [1983] 1 AC 410 per Lord Wilberforce at p. 421 [↩]
22. Page v Smith [1996] AC 155 [↩]
23. See Weller & Co v Foot & Mouth Disease Research Institute [1966] 1 QB 569 [↩]
24. See Lord Denning at 37-38 in Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 [↩]
25. Murphy v Brentwood DC [1991] 1 AC 398 [↩]
26. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 [↩]
27. See Lord Roskill, Op. Cit [↩]
28. White v Jones [1995] 2 AC 207 per Lord Goff at p. 259 [↩]
29. Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28 [↩]
30. Ibid. see Lord Mance at p. 213 [↩]
31. Ibid. see Lord Bingham at p. 195 [↩]
32. Hill v Chief Constable of West Yorkshire [1989] AC 53 [↩]
33. Ibid. see Lord Keith of Kinkel at 63, see also Lord Templeman at 64 [↩]
34. Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 [↩]