Law of Torts: The Concept of the Duty of Care - Coursework Example

? Law of Torts By 26, Mar Introduction Duty of care is a key element, and indeed the foundation of the tort of negligence. The modern concept of the duty of care has its roots in the case of Donoghue V Stevenson.1 In this case, Lord Atkins established that to prove the tort of negligence, the claimant has to cross 3 hurdles, that is, establish that the defendant owed him a duty of care both in law and fact, that the claimant breached the duty of care, and that as result of the breach, the claimant suffered a damage that was caused by the defendants breach (causation). Consequently, for one to establish the tort of negligence, one must establish that the other party was not only careless, but also that there existed a relationship that created a legal duty of care on the part of the defendant not to act carelessly. The purpose of this paper is to establish the degree to which it is possible to establish as single duty of care principle. To achieve the purpose, this paper shall first trace the test that have been developed overtime through the decisions of the courts, examine their shortcomings, and finally conclude on the extent to which it is possible to establish a single duty of care. Before the plaintiff proceeds any further to elicit evidence of the carelessness, and damage resulting from the conduct of the defendant, the defendant must establish that the defendant owed him a duty of care. But how does one establish that they are owed a duty of care? The traditional approach has established the duty of care to exist in certain special relationships, such as doctor/patient, lawyer/client and manufacturer/consumer. However, for certain fresh cases, test must be applied to establish whether the duty of care exists. The court has over time developed a rich jurisprudence over the tests that are applicable to establish a common law duty of care. Several tests have been developed to apply to particular set of facts. For instance, in Lynch V Lynch (1991), an Australian case, the court found a duty of care to exist between the mother and an unborn child, not to cause the child to suffer as result of her conduct However, some judges have tried to develop a single test that would apply to all duty of care situations. But to what extent is it possible to formulate a single test? Lord Bridge, in Caparo V Dickman2, recognized that traditionally, “law finds the existence of duty in different specific situations each exhibiting its own particular characteristics. In this way, the law has identified a wide variety of duty situations, all falling within the ambit of the tort of negligence, but sufficiently distinct to require separate definitions of all essential ingredients by which the existence of the duty is to be recognized.” Duty of Care Tests: How it Has Developed over Time Prior to Donoghue V Stevenson, duty of care, to find negligence was normally on a case by case basis. It was normally owed in only specific and defined circumstances, such as those established under a contract. The modern quest for a single general principle that can be applied to all circumstances to determine the existence of a duty of care can be traced to Brett, M.R, decision in Heaven V. Pender,3 where he stated that, “whenever a person is by circumstance, placed in such a position with regards to another, that every one of ordinary sense, who did think, at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid the danger.” However, other judges did not concur with this decision fully. It was later extended by Lord Atkins in the Donoghue case. He stated that the above decision was too wide. Lord Atkin held that for a new duty to arise, it has to have a pedigree to a scenario that had already been examined and classified by the court, stating that, “when a new point emerges, one should ask not whether it is covered by authority but whether recognized principles apply to it”. In essence, lord Atkin was suggesting that judges ought to apply the facts of the new scenario to principles and elements that have already been established rather than analyze whether the facts of the case are covered by those of an existing precedent. He established the celebrated neighbour principle, which would establish whether a duty of care existed between the plaintiff and the defendant. He stated that “you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the Acts or omissions which are called into question.”4 Hence, Lord Atkin introduced another element to the decision in Pender, through introducing the element of foreseeability/ proximity, to limit instances when the court could find a duty of care. However, subsequently, the foreseeability test has been subject to a number of criticisms. It was criticized for being too wide and even erroneous. Consequently, scholars argued that even though many of the duties are based on the foreseeability principle, it was impossible to apply the principle universally. For instance, Conaghan & Mansell5 argue that the statement is extraordinarily empty, eliciting the question ‘what ought to be reasonably foreseeable?’ Horsey & Rackley (2009) argue that this test was subjective in that what satisfied one judge as being reasonable, may not appear reasonable to another judge. Subsequently, case law has established the limitations of this principle, giving plenty instance where there is no liability despite that the damage was foreseeable, for example as far as economic loss is concerned. Anns v Merton London Borough Council Subsequently, Lord Wilberforce in Anns V Merton London Borough Council6 established a more modern test, the two stage test (or Ann’s test). According to Steele (2007) 7, this decision elevated the neighbour principle to a universal status. This test can be attributed the 1980s expansion of the law of negligence in relation to nervous shock and economic loss. Lord Wilberforce stated that “First, one has to ask whether, as between the alleged wrong doer and the person who suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered in affirmative, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class to whom it is owed or the damages to which the breach may give rise.”8 In essence, his lordship established two tests, that is, foreseeability and public policy. Horsey & Rackley (2009) argues that the first limb presents no hurdle at all, since almost everything is foreseeable, and therefore, it all depended on the second limb, of policy. Lord Wilberforce’ two stage test has also been subject to most of the criticisms that faced the foreseeability test. It is criticized for being too broad and vague. Scholars argue that the implication of the two stage test was to extend a duty of care to the defendant in all scenarios that satisfy the foreseeability tests, except if there is a public policy not to impose the duty of care. In Yuen Kun Yeu v Att-Gen of Hong Kong9, Lord Keith dismissed the Anns test arguing that it had been elevated to “a degree of importance than it really merited”, and that it should not be regarded in all circumstances as a suitable guide to the existence of duty of care. Hence in Smith V Littlewood10 lord Goff acknowledged that “the broad general principle of liability for foreseeable damage is so widely applicable that the function of duty of care is not so much to identify cases where liability is imposed as to indentify where it is not.”11 I Caparo Industries Plc V Dickman Following the short comings of the Anns’ two stages and the neighbour principle, some scholars suggested a more general explanation according to which the ‘duty’ should be a foundation of a series of political, economic and social factors. They peg the existence of a duty of care to the outcome of a value judgement that the plaintiff’s interests which is subjected to the carelessness of the defendants is deemed worthy of legal protection. Consequently, scholars argue that in order to find a duty of care, several elements must exist, to wit the social or policy element and the element of reasonable foreseeability, called the duty of fact. The two tests should be cumulative and not alternatives. Subsequently, in Caparo Industries Plc V Dickman[1990], the house of lords, though it expressly provided that it was not seeking to establish a single principle, established two approaches that should guide to establish whether, on given facts, the defendant owed the plaintiff a duty of care. They included the three stage test and the incremental approach. This was in an attempt to shift away from the attempts made to establish a single principle to establish a duty of care. Their lordship wanted to move away from the Donoghue and Anns foreseeability test, whereby foreseeability of damage by the defendants was enough to establish a duty of care, and could only be negated by a public policy against attachment of liability. Consequently, their lordships favored the traditional categorization of different specific situations rather that a general principle. Lord Bridge stated that, “ in addition to the foreseeability of damage, necessary ingredient in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the party for the benefit of the other.”12 In essence, their lordship established a 3 stage test, to wit, foreseeability, proximity and fairness, just and reasonableness. All the three must be satisfied in order for the court to establish a duty of care. Therefore, their lordship did not establish a single test/principle, but tried to establish a basic yardstick according to which, each scenario whereby a duty of care is alleged, should be measured against. Therefore, the Caparo three stage tests established a common basic minimum, which all duty of care situations must satisfy, in addition to specific elements that apply to the individual scenarios. The first requirement is that generally, the claimant must fall within a class of individuals who the defendant can reasonably foresee, as likely to be harmed by his conduct that is, put at a foreseeable risk by the defendant’s conduct. This arises from the principle that the defendant cannot owe a duty to the world at large. As a general rule, it is necessary that defendant conduct is reasonably foreseeable as capable of causing harm to the plaintiff. Therefore, the reasonable man test is applicable to establish whether the damage caused by the defendant was reasonably foreseeable. This principle was famously expressed in the case of Palsgraf V Long Island Railroad Co [1928]. In this case, the defendants had dropped a box full of fireworks, whereby there was an explosion as a result. The resulting shockwaves allegedly made heavy scales to fall and injure the claimant in this case. The court, while denying her claim, held that the claimant was not a foreseeable victim, holding that it was not sufficient that the defendant’s conduct had exposed her to risk of injury, nor that his negligence would cause foreseeable harm to others. In Home Office v Dorset Yacht Co Ltd, young borstral inmates were taken for a weekend’s training in Brownsea Island in Poole Harbour. At night, 5 of the boys escaped from the watch of the guards, went to the claimants yacht club, where they vandalized several yachts. An action for negligence was brought against the home office on the grounds that their employees failed to restrain the boys. Lord Diplock stated that, “I should therefore hold that any duty of a Borstral officer to use reasonable care to prevent a Borstral trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had properly situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture…” therefore, harm to those in the yacht club was held to have been reasonably foreseeable. The second element relates to the proximity in relationship between the claimant and the defendant. This marked a departure from Anns and Donoghue, where the proximity in relationship was presumed if it was reasonably foreseeable that the plaintiff’s carelessness would cause an injury to the claimant. In essence, before Caparo, proximity did not establish a separate element, beyond reasonableness. However, Caparo introduced proximity as a second element, separate on its own, and additional to the test of establishing the existence of duty of care. Proximity as used in Caparo goes beyond physical closeness, to require that a certain type of relationship/connection must exist between the claimant and the respondent. The third stage in Caparo’s test is whether finding that the defendant owed the plaintiff a duty of care is contrary to the public policy, that is, whether it is fair, just and reasonable to find a duty of care. Consequently, this requirement gives the judge discretionally powers to decide what is and what is not public policy. Hence, in Marc Rich & co V Bishop Rock Marine Co Ltd13, the House of lords refused to find a duty of care on the grounds that it was not fair, just and reasonable to disturb the contractual allocation of risks between the claimant cargo holders and the ship owners, because doing so would undermine the terms on which international trade was conducted. To add, the court has refused to find duty of care in instances where it would have involved second guessing priorities, decisions and resource allocations of public bodies. Such bodies include police14, local authorities15 and armed forces.16 Horsey & Rackley (2011) argue that the Caparo three stage test has serious flaws and limitations in that it ‘tells us remarkably little about when about when a duty of care will arise or even how the court should go about determining when such duties arise.17” This is besides the facts that their lordships expressly stated that they had no intention of setting down a single test that would be applicable to provide answers in future cases whether a duty of care arose or not. Their lordship recognized the near impossibility of finding any single test that would be applicable to determine the existence of a duty of care. Lord Oliver stated that’ “I think it has to be recognized that no search for any single formula which will serve as a single test of liability is to pursue a will-o’-the wisp. The fact is that once one discards, as it is now clear one must, the concept of foreseeability of harm as the single exclusive test, even a prima facie test, of the existence of the duty of care, the attempts to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law but to merely bedevil its development in a way that which corresponds with practicality and common sense.”18 Moreover, despite establishing the 3 stage test, the house of lords went further to question the utility of the very concepts of ‘proximity’, ‘foreseeability’, and ‘fairness, justice and reasonableness” that are resulted from their decision. They held that the concepts of proximity and fairness cannot be given precise definition that would make them practice. Therefore, the 3 stage test outlined above is merely shorthand for the types of factors which determine whether a given defendant owes a duty of care to a particular claimant in a particular type of harm-a framework or guide for inquiries into the existence of a duty rather than a reliable test whereby a duty arises when all conditions are satisfied (Horsey & Rackley, 2011). Moreover, some scholars argues that the words ‘foreseeability’, ‘proximity’, and ‘fairness, justice and reasonableness’, are used to mask a predetermined decisions of the judges, and that the judges do not really apply them to arrive at their decision. That is, the judges decide whether there a duty was owed by the defendants to the plaintiffs, and if their answer is affirmative or negative, they employ the terms just to mask their decision. Besides rejecting the single test approach, their lordship turned to the incremental approach for finding a duty of care. They adopted the dictum in the Australian case of Sutherland Shire Council v Heyman, where Brennan J stated that “it is preferable, in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories.” In essence, their lordship rejected the viability of a single test, holding that the duty of care should be found to exist, only and only, where one has already been found to exist, or to situations which can be regarded as analogous to instances whereby the duty of care has already been found to have existed. This approach was employed in the case of Home Office v Dorset Yacht Co Ltd.19 There was a preliminary question whether the home office could be said to owe a duty of care in such a situation. The House of Lords answered in affirmative. In doing so, they extended the neighbourhood principle into the novel set of circumstances. The court held that there existed a duty of care on the defendants to prevent inmates from escaping. This case was special because the defendant was being sued because of the actions of a third party; in this case the borstral boys. Therefore, the defendant’s liability was based upon an omission, that is, their failure to control the actions of their inmates. Hence, this approach was returning the jurisprudence that existed prior to the Donoghue case. The approach is therefore criticized for being rigid and contrary to the development of law. Consequently, if the new case does is not analogous to one that had already been decided, a duty of care will be denied and the court will be tied in decision making. Consequently, cases would be denied or allowed by the judges, based on its pedigree, and the accident of having a legal history rather than on its merits. To what degree is it possible to formulate a single principle? Consequently, formulating a single principle that can cut across all scenarios has eluded the legal jurisprudence over a long time, and any attempts to do so have met resistance over time. Single principles that have been formulated, from Lord Atkins’ neighbour principle, to lord Wilberforce’s Anns principles have been criticized for inherent shortcomings that culminated in the House of Lords decision in Caparo. However, there exists a common ground in all duty of care scenarios that can be used to form the foundation for the analysis of the duty of care, in a new case. These can provide the degree to which it is possible to formulate a single duty of care scenario. Any case scenario must satisfy the Caparo test as a minimum. To wit, it must satisfy the requirements for foreseeability, proximity and the public policy. With regards to foreseeability, development in the case law, from Donoghue to Caparo, hold that the damage caused to the defendant must have been foreseeable. The defendant should not owe a duty of care to the world at large, but to those people to whom he can reasonable have foreseen. Consequently, in Bourhill v Young, 20a speeding motorist was hit by a motor vehicle and died. The plaintiff, who was pregnant, was about 50 yards away. Though she did not actually see the accident, she heard about it, and upon seeing blood on the road, she suffered shock and her baby was a still born. She sued the motorcyclist estate and the court held that the motorcyclist did not owe her a duty of care as he would not have reasonably foreseen that she would be affected by his negligent driving. Moreover, there must exist a certain relationship between the defendant and the claimant, which establishes the proximity between the two. For instance, it could be between a passenger and the driver, driver and a pedestrian, employer and employee or lawyer and client. Such relationship inculcates a duty to the defendant not to act negligently, because he can cause harm to the person in whom they are in that relationship with. Finally, the situation must not be one whereby extending a duty of care is contrary to the public interest, and the welfare of the community at large. However, it is hard to define what is and what is not public policy, and critics of the concept argue that judges often hide behind public policy to explain their judicial invention. In conclusion, though the Caparo three stage test was not designed to form a single duty of care principle, it forms a minimum threshold for the existence of duty of care. Therefore, judges, in deciding new scenarios, must not look whether the new scenario has a precedent or pedigree in an already decided case, but rather they should use the Caparo test as a yardstick to establish if the case, prima facie, passes the duty of care requirement. References Case law Donoghue V Stevenson [1932] AC Heaven V. Pender (1883), 11 Q.B.D. 503,509 Caparo V Dickman, [1990] 2 AC 605 Anns V Merton London Borough Council [1978] AC 728 Yuen Kun Yeu v Att-Gen of Hong Kong [1988] 1 A.C. 175 Smith V Littlewood Organization ltd [1987] AC 241 Marc Rich & co V Bishop Rock Marine Co Ltd [1996] 1 AC 211 Home Office v Dorset Yacht Co Ltd. 1970] AC 1004 Sutherland Shire Council v Heyman (1980) 60 ALR 1 Bourhill v Young, [1943] AC 92 Palsgraf V Long Island Railroad Co [1928] BOOKS Horsey K and Rackley, Tort Law. (2nd end, Oxford university press 2011) Steele P, Tort Law: Text, Material and Cases (Oxford University press, London 2007) Harpwood, V.H, Modern Tort Law (Routledge 2008) Hodgson and Lethwaite, Tort law (Oxford University Press.2007) Oliphant K and Lunney, Tort Law: Text and Material (Oxford University Press. 2007) Read More