Establishing a duty of care: Robinson’s ineffective departure from Caparo

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This article will put forward the proposition that the case of Robinson v Chief Constable of West Yorkshire Police [2018][1] has had no practical impact on the test for finding a duty of care in the tort of negligence. This will be demonstrated through the analysis of the extent to which policy justifications and judicial discretion, authenticated by Caparo v Dickman [1990],[2] continue to be used in a similar fashion following the UK Supreme Court’s decision in Robinson.  This continuation can be seen through both the explicit and implicit permeation of policy justifications in case law following Robinson. The latter part of this article will then go on to examine how the lower courts’ refusal to acknowledge the Robinson decision only serves to strengthen the argument that Robinson has had no practical impact on the finding of a duty of care. 

Establishing a duty of care and policy justifications prior to Robinson

The tort of negligence was set up in the landmark case of Donoghue v Stevenson [1932].[3] This case also established that a duty of care is an essential prerequisite to finding liability in negligence. Lord Atkin took this opportunity to create the neighbour principle, under which liability would be found if the defendant did not ‘take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour’.[4] Thus, the initial elements to find a duty of care were of foreseeability and proximity.

In the subsequent case of Anns v Merton London Borough Council [1978],[5] this neighbour principle was transformed into a two stage test by Lord Wilberforce. In addition to foreseeability and proximity, this test allowed the defendant to introduce factors which ‘ought to negative, or to reduce or limit the scope of the duty’.[6]  However, this test was criticised by academics and judges as it removed the independence of the proximity criterion. Thus, Lord Bridge in the case of Caparo v Dickman [1990][7] removed this negative requirement and created a tripartite list in its place. Under this list, in addition to foreseeability of damage and proximity, the court was required to consider whether the situation was such that it was ‘fair, just and reasonable that the law should impose a duty’.[8]

Lord Bridge and Lord Oliver within Caparo v Dickman [1990][9] placed particular emphasis on how this tripartite list should not be viewed as a definite test, but rather as ‘convenient labels to attach to features of different specific situations’.[10]Despite this, the Caparo three-limbed approach was adopted by the courts as the new test for a duty of care within subsequent case law. As demonstrated above, prior to Caparo, the focus of the court in finding a duty of care was upon proximity and foreseeability. Therefore, ‘policy had no place’ in the determination of such matters.[11] However, with the introduction of the ‘fair, just and reasonable’ consideration, the possibility of judicial discretion was added, allowing courts to take into account ‘considerations of community welfare’.[12]This resulted in a vast tide of policy justifications to encompass judicial reasoning.

An example of the courts’ acceptance of policy justifications can be seen within the case of Hill v Chief Constable of West Yorkshire [1989][13] where Lord Keith emphasised that a duty of care could not be found against policemen who had failed by omission to intercept a crime. The policy justifications of preventing defensive policing as well as avoiding the opening of the floodgates to negligence claims against the police fuelled this decision. A more recent example which highlighted the ‘increasing emphasis on policy’[14]under the Caparo test can be seen in the case of Michael v Chief Constable of South Wales Police [2015].[15]In this case, the Supreme Court held that in order to avoid overburdening the police force and the accompanying ‘potential financial implications’,[16]a duty of care should not be imposed. These two cases are a clear example of the courts’ reliance on policy justifications in determining a duty of care under the direction of Caparo.

Robinson’s rejection of Caparo and its lack of impact upon establishing a duty of care

For 28 years after the Caparo judgement, this tripartite test based on justifications of principle and policy was followed. However, in the recent case of Robinson v Chief Constable of West Yorkshire Police [2018],[17] the Supreme Court held that this test was in fact based on a misinterpretation of Lord Bridge’s judgement. Lord Reed asserted that ‘the proposition that there is a Caparo test … [where] the court will only impose a duty of care if it considers it fair, just and reasonable to do so on the particular facts, is mistaken’.[18] Instead, the Supreme Court held that where there is existing precedent, the court will apply previous case law to the case currently before them to determine the outcome. The Supreme Court then went on to outline that where ‘novel’ situations arise and there is no established precedent, the court should ‘consider the closest analogies in the existing law, with a view to maintaining the coherence of the law, … in order to decide whether the existence of a duty of care would be just and reasonable.’[19]

In theory, due to Lord Reed’s judgement in Robinson, the principle based approach that developed from the tripartite Caparo test was removed and replaced with an approach that is based on the incremental development of the law. This has led academic Sarah Arnell to assert that Robinson has ‘shaken up the foundations for determining the existence of a duty of care’.[20]Lord Reed himself emphasised that Robinson has had a significant impact as this case repudiated ‘the idea that there is a single test which can be applied in all cases’.[21]  As a result of this apparent transition to incrementalism, academics such as Steve Foster have considered whether ‘policy considerations under the guise of the “fair just and reasonable” limb of Caparo’ are subsiding to clear the way for a precedent-based approach.[22] This subsequently implies that the Robinson judgement has impacted the test for determining a duty of care by removing the extent to which courts rely on policy justifications within their reasoning.

However, the above approach does not adequately consider the extent to which courts are still dependent upon the tripartite Caparo test and its attached principle-based approach. This dependency stems from two main factors. Firstly, negligence is a tort based in common law, so the incremental approach demanded in Robinson requires the court to draw upon existing precedent to apply to the set of circumstances before them where possible. This is significant, as prior to Robinson, 28 consecutive years of case law was decided using the test in Caparo where ‘the courts have inherently been required to consider matters of public policy’.[23]Consequently, when the courts rely upon precedent preceding Robinson, they are inadvertently relying upon precedent created using the test in Caparo, thus allowing policy justifications to unconsciously integrate into present case law. As a result, Robinson and its focus on precedent can simply be viewed as a continuation of Caparo and thus has not impacted the law in finding a duty of care.

A prominent example of this can be seen in the recent case of Darnley v Croydon Health Services NHS Trust [2018],[24] which came before the Supreme Court shortly after Robinson was decided. In this case, the claimant brought proceedings against the NHS, alleging a breach of duty by the reception staff due to the lack of information they provided in relation to hospital wait times. In giving the leading judgement, Lord Lloyd-Jones held that the case before him replicated a similar scenario to the case of Kent v Griffiths [2001].[25] Consequently, in the spirit of Robinson, they applied the ratio decidendi of Kent  to the facts of Darnley. The court in Kent used the Caparo tripartite test to establish a duty of care when the London Ambulance Service had provided ‘misleading assurances that an ambulance would be arriving shortly’[26]when, in actuality, the ambulance was delayed.A fundamental factor underlying the court’s decision in Kent was the policy justification of ensuring accountability of the NHS and thus instilling public confidence in the health service. By following Robinson and using the ratio from Kent to establish a duty of care in Darnley, the court is implicitly encouraging the continued use of policy justifications in a fashion similar to that of the explicit Caparo test. This example demonstrates that the application of Robinson has little practical impact on finding a duty of care in negligence. It has even led academic Gordon Cameron to state that Lord Reed in Robinson ‘may perhaps be charged with underplaying the role played by policy considerations’.[27]

The second element that highlights the continued dependency upon Caparo is the Supreme Court’s handling of ‘novel’ situations ‘where the question whether a duty of care arises has not previously been decided’.[28]In these circumstances, the Supreme Court held that the courts should consider ‘the closest analogies in existing law’ as well as ‘weighing up reasons for and against imposing liability’ in an attempt to determine whether it would be ‘fair, just and reasonable’ to extend the law to find a duty of care in the case before them[29]. Controversially, academic David Tan has argued that ‘English courts’ resort to incrementalism in this manner… has effectively rendered the three-stage approach of the Caparo test nugatory’[30], indicating that he believes that the decision in Robinson has impacted the law by removing the need for Caparo. However, this view fails to recognise two important links between the incremental approach and the supposedly discarded Caparo test.

Firstly, in developing case law by analogy to previous precedent, the court will again be likely to draw upon judgements established using policy justifications under the Caparo test. Secondly, when deciding whether to extend case law, the court must consider whether it is ‘fair just and reasonable to do so’. This requirement is synonymous to the third limb laid down in Caparo. Therefore, when Lord Lloyd-Jones decided to use the incremental approach to ‘extend a duty of care to a new situation’[31] in James-Bowen and others v Commissioner of Police of the Metropolis [2018],[32] he made an explicit reference to how the previous treatment of Caparo should act as a guideline when courts attempt to approach the ‘fair, just and reasonable’ requirement under Robinson.[33]  In addition, his Lordship also placed particular emphasis on how it was necessary ‘to have regard of the competing underlying policy considerations when determining whether a duty of care may be imposed’.[34]  This is nearly a direct contradiction to Robinson, which attempted to reduce the use of a principle and policy-based approach in favour of incrementalism. This deviation from Robinson less than a year after the judgement was given emphasises the minimal impact Robinson has had on finding a duty of care.

Prima facie, the decision in Robinson appears to impact the law by introducing incrementalism and by limiting ‘the necessity to defer to public policy arguments in the determination of every case’.[35]  However, due to the implicit and explicit continuation of policy justifications and judicial discretion used by the courts, it is preferable to view Robinson as only impacting the law on paper, as it has had no practical effect on how the courts handle the establishment of a duty of care and the extent to which they rely upon policy justifications. 

The lower courts’ rejection of Robinson

Robinson has been formally acknowledged by the Supreme Court within the cases of Darnley v Croydon Health Services NHS Trust [2018][36] and James-Bowen and others v Commissioner of Police of the Metropolis [2018].[37] However, Robinson’swarm receptiondoes not extend past the Supreme Court with many lower court judgments stubbornly ignoring this new test. The Court of Appeal within the case of HRH Emere v Royal Dutch Shell [2018][38] held that it was impossible to establish a duty of care as the circumstances did not allow for the ‘necessary degree of proximity’[39]and because imposing a duty could not be considered ‘fair, just and reasonable’. Despite this judgment occurring post-Robinson,the Court of Appeal applied the tripartite Caparo test, even going as far as stating that this was the ‘correct test’ for establishing a duty of care.[40] This reliance upon Caparo displays how Robinson has had no impact on how the Court of Appeal establishes a duty of care.

This outright refusal to apply Robinson is again demonstrated by both the High Court and the Court of Appeal in the case of Seddon v Driver and Vehicle Licensing Agency [2018].[41]Within this case, the High Court considered the Caparo tripartite test along with other factors in deciding that it was not possible to establish a duty of care. Upon appeal, the court held that ‘the judge was correct to conclude that the threefold test was not satisfied’[42] thus pronouncing their support for the High Court’s rejection of Robinson in favour of Caparo. This adamant resistance towards Robinson by the lower courts may be explained by Robinson’s denunciation of a definite test for finding a duty of care and the uncertainty this could introduce to the law. Although this fear is understandable, if such a rejection of Robinson continues to permeate the judgements of the lower courts despite the Supreme Court’s best efforts, the practical impact of Robinson will remain unnoticeable. 

Conclusion

Since the creation of negligence within the case of Donoghue v Stevenson [1932],[43] principles and policy justifications have been extensively used in the establishment of a duty of care.  This use of policy was only exacerbated by the introduction of the tripartite Caparo test. The Supreme Court in the recent case of Robinson may have officially denounced the use of Caparo and its principle-based approach in favour of incrementalism but, due to the consistent implicit and explicit references to Caparo and its accompanying policy justifications, it is possible to view Robinson as having minimal impact, if any, on the establishment of a duty of care in practice. The lack of influence Robinson appears to have is only exacerbated by the fact that the lower courts in subsequent case law have refused to acknowledge the new incrementalism approach, preferring to continue to apply the well-known Caparo tripartite test. Due to the accumulation of the above arguments, this article is inclined to agree with academic Stelios Tofaris when he asserted that ‘Robinson does not bring about a significant chance in the law[44] as it has had no impact on the establishment of a duty of care.  


[1] Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.

[2] Caparo Industries plc v Dickman [1990] 2 AC 605.

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

[4] ibid [580] (Lord Atkin).

[5] Anns v Merton London Borough Council [1978] A.C. 728.

[6] ibid [752] (Lord Wilberforce).

[7] Caparo Industries plc v Dickman [1990] 2 AC 605.

[8] ibid 617 (Lord Bridge).

[9] Caparo (n 7).

[10] Caparo (n 8) (Lord Bridge).

[11] Christian Witting, ‘Duty of Care: An Analytical Approach’ (2005) 25(1) OJLS 33, 5.

[12] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 351.

[13] Hill v Chief Constable of West Yorkshire [1989] 1 AC 53.

[14] Witting (n 11) 7.

[15] Michael v Chief Constable of South Wales Police [2015] UKSC 2.

[16] ibid [57] (Lord Reed).

[17] Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.

[18] ibid [21] (Lord Reed).

[19] Robinson (n 17) [29] (Lord Reed).

[20] Sarah Arnell, ‘Robinson v Chief Constable of West Yorkshire Police: a re-interpretation by the Supreme Court’ (2018) Jur Rev 128, 132.

[21] Robinson (n 18) (Lord Reed).

[22] Rebecca Gladwin-Geoghegan and Steve Foster, ‘Police liability in negligence: immunity or incremental liability?’ Cov LJ 2018, 23(1), 43.

[23] ibid 41.

[24] Darnley v Croydon Health Services NHS Trust [2018] UKSC 50. 

[25] Kent v Griffiths [2001] QB 36. 

[26] Darnley (n 14) [18] (Lord Lloyd-Jones).

[27] Gordon Cameron, ‘Negligence and the duty of care; the demise of the Caparo test; and police immunity revisited: Robinson v Chief Constable of West Yorkshire’ Edin LR 82, 84.

[28] Robinson (n 17) [29] (Lord Reed).

[29] ibid.

[30] David Tan, ‘The end of the search for a universal touchstone for duty of care?’ LQR 2019, 135(Apr), 200-205, 202.

[31] James-Bowen and others v Commissioner of Police of the Metropolis  [2018] UKSC 40 at [20]  (Lord Lloyd-Jones).

[32] ibid. 

[33] ibid [21]  (Lord Lloyd-Jones).

[34] ibid [29]  (Lord Lloyd-Jones).

[35] Gladwin-Geoghegan and Foster (n 22) 41.

[36] Darnley (n 24). 

[37] James-Bowen and others v Commissioner of Police of the Metropolis  [2018] UKSC 40. 

[38] HRH Emere Godwin Bebe Okpabi and others v Royal Dutch Shell plc and another [2018] EWCA Civ 191.

[39] ibid [127] (Simon LJ).

[40] ibid [192] (Simon LJ).

[41] Seddon v Driver and Vehicle Licensing Agency [2018] EWHC 312 (QB); [2019] EWCA Civ 14.

[42] ibid[82]. 

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

[44] Stelios Tofaris, ‘Duty of care in negligence: a return to orthodoxy?’ (2018) C.L.J 454.

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