Contemporary approaches to the duty of care requirement in negligence – has the law developed through an incremental process?

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The tort of negligence aims to distribute loss from defendant to claimant[1], protect victims and alleviate disruption caused by negligent acts or omissions[2].  Duty is one component of tort law[3];  to avoid fault by taking reasonable care[4].  Duty of care exists when the relationship between the defendant and claimant falls within a category established through case law with a prima facie duty of care[5]; for example, doctor and patient[6], road users[7] and employer and employee[8]. Where the relationship does not fall under an established category, the courts must determine, by applying tests formulated through case law, whether a new category can be introduced[9].  Incrementalism, ‘the cautious development of the law founded on analogies to similar fact situations’[10] is a suggested safeguard against expansive applications of tests for establishing duties in novel situations, yet views are mixed as to whether this is the most suitable process.  Witting[11] asserts criteria for assisting judges in identifying new duties has been unhelpful.  When faced with novel circumstances, the courts have consistently faced difficulties[12]. This essay critically discusses the development of the law’s response to the duty of care requirement and examines the incremental approach.

Approaches to the duty requirement have undergone expansion and restriction.  The general concept was first recognised in Donoghue v Stevenson[13], through Lord Atkin’s formulation of the ‘neighbour principle’;  in that ‘reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour’[14].  Subsequently, a two-stage test was recognised in Anns v Merton LBC where it was necessary to ascertain a ‘sufficient relationship of proximity or neighbourhood’[15] including reasons against a finding of duty.  This signified an unwelcome expansion of negligence law, and case law became confused over recoverability of damages for pure economic loss and material damage[16].  Radical applications of the two-stage test[17] led to its overruling, with Lord Oliver arguing it ‘served to obscure not only the true nature of the claim but, as a result, the nature and scope of the duty’[18].

A three-stage approach introduced in Caparo Industries plc v Dickman[19]

required foreseeability, sufficient proximity and be fair, just and reasonable[20].  Each component has an analytical purpose[21] nevertheless, criticism remains regarding the approach’s usefulness[22].  Lord Bingham stated, ‘the three-fold test itself provides no straightforward answer to the vexed question whether or not, in a novel situation, a party owes a duty of care’[23].  Application of Anns or Caparo produce comparable outcomes[24];  and similarities cannot be denied[25].  Brennan[26] argues the Caparo test is harder to satisfy due to the separation of foreseeability from proximity, and therefore, is a positive change in the law.  However, the significant element of the Caparo test is the third-stage and focus on policy considerations.  Attention is diverted from factual circumstances and instead directed to the imposition of societal norms within decision-making processes[27], which Leng argues is imbalanced[28].  Policy considerations require courts to question whether the law should recognise a legal relationship, whilst having regard to ethical, economic and social implications[29].  Whether a denial of duty, due to policy considerations, is a valid reason is controversial[30], although Morgan stresses ‘it would be strange to require the courts to close their eyes to such manifest social consequences of their decisions’[31].

Certain public bodies are excluded from established duty categories.  The police have an ‘operational’ liability when they directly cause damage[32], however ‘in the interests of the wider community’[33] a duty of care is often denied unless there is a special relationship[34].  Lord Steyn stressed that retreating from this key principle[35] would lead to ‘an unduly defensive approach in combating crime’[36].  Concerns of opening the ‘floodgates’, with risks of increased litigation if there is an expansion of the established duty categories, have come to the fore in recent years[37].  Widening the duty requirement risks far-reaching consequences beyond individual cases.  Thus, Lord Toulson reaffirmed the incremental approach, stating ‘the established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going’[38] and decisions in novel circumstances should remain on a case-by-case basis[39].

Opinions differ whether the development of law has been ‘incremental’.  Lord Macmillan argued ‘categories of negligence are never closed’[40], and although expansion and reduction to approaches to duty have occurred, the courts prefer to impose liability through ‘small incremental steps’[41].  Lord Bridge stated it was time to ‘recognise the wisdom’[42] of the suggestion in Sutherland Shire Council v Heyman [43] where the incremental approach was deemed the most favourable process in developing the law.  An incremental process would arguably ensure a more efficient, secure, legal system with the courts identifying a duty in circumstances analogous to previous authority[44].  However, this poses a logistical issue because a duty would be denied where no previous authority exists[45].  The initial wide approach endeavoured to avoid unfair outcomes for minority claimants[46], but is impracticable in today’s society and the Caparo test remains the contemporary control mechanism for novel circumstances[47].

In recent years there has been acknowledgement of an incremental approach to duty of care developments in negligence, thus learning from past mistakes in attempting to solidify a single test for finding a duty in novel situations.  The Caparo test was a culmination of various approaches to duty requirements, and their evident relationships[48], aiming to improve negligence law, yet mixed views regarding its effectiveness persist.  However, the test is a control mechanism[49], despite being ‘a fairly blunt set of tools’[50], with which courts can tackle the duty question.  Debate remains concerning the Caparo test in terms of determining proximate relationships and its tendency to focus on policy.  A narrow incrementalism[51] could safeguard against the third-stage and the overemphasised policy considerations.  By adopting this approach, the law relating to duty of care could acquire greater consistency leading to the dissolution of criticisms placed upon the Caparo test[52].

[1] R Kidner, Casebook on Torts (12th edn, Oxford University Press 2012).

[2] K M Stanton, The Modern Law of Tort (Sweet and Maxwell 1994).

[3] R Kidner, Casebook on Torts (12th edn, Oxford University Press 2012).

[4] D Howarth, ‘Many duties of care – or a duty of care?  Notes from the underground’ (2006) 26 OJLS 449.

[5] E Finch and S Fafinski, Tort Law (6th edn, Person 2017).

[6] Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428.

[7] Nettleship v Weston [1971] 2 QB 691.

[8] Wilsons & Clyde Coal Co Ltd v English [1938] AC 57.

[9] E Finch and S Fafinski, Tort Law (6th edn, Person 2017).

[10] K M Stanton, ‘Professional negligence:  duty of care methodology in the twenty first century’ (2006) Prof Negl 134, 141.

[11] C Witting, ‘Duty of care:  An analytical approach’ (2005) 25 OJLS 33.

[12] M McGrath, ‘Duty of care – the full circle?’ (2015) <https://www.lawlibrary.ie/media/lawlibrary/media/Secure/20150214TortMacGrath.pdf> accessed 27 February 2017.

[13] C Brennan, Tort Law (3rd edn, Oxford University Press 2015);  Donoghue v Stevenson [1932] AC 562.

[14] Donoghue v Stevenson [1932] AC 562, 580.

[15] Anns v Merton London Borough Council [1978] AC 728, 251H per Lord Wilberforce.

[16] K Horsey and E Rackley, Tort Law (4th edn, Oxford University Press 2015).

[17] J Randell, ‘Duty of care – the haunting past, uncertain future’ (2014) 2 N.E.L.R 75;  Junior Brooks Ltd v Veitchi Co Ltd [1983] 1 AC 520.

[18] Murphy v Brentwood District Council [1991] 1 AC 398, 485B.

[19] S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (6th edn, Oxford University Press 2008).

[20] Caparo Industries plc v Dickman [1990] 1 All ER 568.

[21] C Witting, ‘Duty of care:  An analytical approach’ (2005) 25 OJLS 33.

[22] J Randell, ‘Duty of care – the haunting past, uncertain future’ (2014) 2 N.E.L.R 75.

[23] Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, 191E.

[24] Stovin v Wise [1996] AC 923, [949].

[25] T K Leng, ‘The search for a single formulation for the duty of care:  Back to Anns’ (2007) Prof Negl 218.

[26] C Brennan, Tort Law (3rd edn, Oxford University Press 2015).

[27] C Witting, ‘Duty of care:  An analytical approach’ (2005) 25 OJLS 33.

[28] T K Leng, ‘The search for a single formulation for the duty of care:  Back to Anns’ (2007) Prof Negl 218.

[29] C Brennan, Tort Law (3rd edn, Oxford University Press 2015).

[30] A Robertson, ‘Policy-based reasoning in duty of care cases’ (2013) 33 Legal Studies 119.

[31] J Morgan, ‘Policy reasoning in tort law:  The courts, the Law Commission and the critics’ (2009) 215, 221.

[32] C Brennan, Tort Law (3rd edn, Oxford University Press 2015);  Rigby v Chief Constable or Northamptonshire [1985] 3 All ER 87.

[33] Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [106] per Lord Carswell.

[34] N J McBride, ‘Michael and the future of tort law’ (2016) 32 Prof Negl 14.

[35] Hill v Chief Constable of West Yorkshire [1989] AC 53.

[36] Brooks v Commissioner of the Police of the Metropolis [2005] UKHL 24, 1510B.

[37] C Brennan, Tort Law (3rd edn, Oxford University Press 2015);  C Witting, ‘Duty of care:  An analytical approach’ (2005) 25 OJLS 33.

[38] Michael v Chief Constable of South Wales Police [2015] UKSC 2;  AC 1732, 1761G.

[39] C Brennan, Tort Law (3rd edn, Oxford University Press 2015).

[40] Donoghue v Stevenson [1932] AC 562, 619.

[41] K Horsey and E Rackley, Tort Law (4th edn, Oxford University Press 2015), 34.

[42] Caparo Industries plc v Dickman [1990] 1 All ER 568, 618C.

[43] Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1.

[44] J Randell, ‘Duty of care – the haunting past, uncertain future’ (2014) 2 N.E.L.R 75; S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (6th edn, Oxford University Press 2008).

[45] K Horsey and E Rackley, Tort Law (4th edn, Oxford University Press 2015).

[46] Donoghue v Stevenson [1932] AC 562.

[47] C F Stychin, ‘The vulnerable subject of negligence law’ (2012) 8 International Journal of Law in Context 337.

[48] T K Leng, ‘The search for a single formulation for the duty of care:  Back to Anns’ (2007) Prof Negl 218.

[49] C F Stychin, ‘The vulnerable subject of negligence law’ (2012) 8 International Journal of Law in Context 337.

[50] Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, [209] per Lord Walker.

[51] L Dolding and R Mullender, ‘Tort law, incrementalism, and the House of Lords’ (1996) 47 NILQ 12.

[52] J Randell, ‘Duty of care – the haunting past, uncertain future’ (2014) 2 N.E.L.R 75.

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