Extent to Which Public Policy Influences the Courts in Deciding - Article Example

Topic: Consider the extent to which public policy influences the courts in deciding whether it is fair, just and reasonable to impose duty of care innegligence. Public policy refers to a definite governing principle which the community as a whole has already adopted either formally by law or tacitly by general course of practice. Notions of public policy are not fixed by vary over time with the state and development of society and the conditions within the society. In the class of actions under tort law which is negligence,1 public policy impinged on the judicial decisions by graduating the the duty of care imposed upon the defendant of the case. Because tort is an intermediate source of liability standing between contract and crime – imposing liabilities based on wrong rather than on consent, it is a continuing judicial concern, as may be gleaned as emerging from a series of cases, for the identification of the unifying principle within which liability could fit in. The elements of the tort of negligence stated in 1862 in the Swan case are the same elements in the same action today: “The action for negligence proceeds upon the idea of an obligation to the plaintiff’s injury.”2 Before the Scot case of Donoghue v Stevenson3 in 1932 there was no generalized duty of care in negligence, it was the operating procedure of the courts to deal with torts in a case by case bases and tort was applied in particular situations where the courts had decided that a duty should be owed, e.g. road accidents, bailments or dangerous goods. Donoghue was pivotal in generalizing the fundamental principle of negligence which would cover all circumstances where the courts had already held that there could be liability for negligence and which principle is still evolving by further judicial refinement, rearticulation, reconsideration and interpretation. Donoghue was significant in that it was based on what the court thought justice required, not logical compulsion. This sense of justice, not logic, guided the court in developing the law of negligence since 1932. The elements of the action are: 1. The existence of a duty of care;4 2. Breach of that duty; and 3. Material damages as a consequence of the breach of duty. A duty of care is the obligation to exercise a level of care towards an individual, as is reasonable in all the circumstances, to avoid injury to that individual or his property. A duty of care is a legal obligation to avoid causing harm and arises where harm is foreseeable if due care were not taken. Duty of care is based upon the relationship of the parties, the negligent act or omission and the reasonable foreseeability of loss to that individual. What must be foreseeable is the type of damage, not its extent. The plaintiff (individual or class of individuals) must be foreseeable for a duty of care to arise. The general principle derived from Donoghue case is that reasonable foreseeability should not be unfettered in defining duty of care to be imposed in the case. As such reasonable foreseeability is constrained by notions of proximity and reliance. Breach of duty arises by the defendant’s failing to avoid a risk where a reasonable person would have done so. A proximate relationship, described in cases as “close” or “direct” is an additional factor in determining the existence of care, proximity may be: 1. physical, closeness in time or space, between person or property of the plaintiff and the person or property of the defendant; 2. circumstantial, due to relationships between the parties such as an overriding relationship between employer and employee or between a professional person and his/their client; 3. causal, direct consequence of the negligent act or omission, in the sense of closeness or directness of the relationship between the particular act or cause of action and the injury sustained. The general principle which Atkins, L. laid down in Donoghue states: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is your 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 in question. The unspoken policy consideration in the test is justice and the need for the public for a generalized criteria for duty of care. Reid, L. said in 1970 that Atkin’s dictum should apply unless there was some justification or valid explanation for its exclusion.5 This statement was made despite the severe criticism raised against the Donoghue test as being too wide but it made it easier for claims to be made where there should be liability for negligently causing harm in new situations not previously covered by case law. There is also the enduring general criticism that the generalized duty of care test hampers the development of the public’s moral and legal conscience and hamper the obedience to the rule of law. Wilberforce, L. in Anns v Merton6 confirmed and refined the neighbour test: In order to establish that a duty of care arises in a particular situation, I is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has 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 affirmatively, 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 of person to whom it is owed or the damages to which a breach of it may give rise. Please notice that the second criterion deals with the question of policy subject of the present essay and this will be discussed further below. Much concern was raised in the effect of the Wilberforce test and the House of Lords made strategic retreat to mitigate the implications of the test. In Rowling7 case, Keith, L. explained that there a fear that a too literal application of the Wilberforce test could produce a failure to have regard to, and to analyse and weigh, all the relevant considerations when deciding whether to impose a duty of care. Templeman, L. in CBS Songs8 case, commented that since Anns ‘put the floodgates on the jar, a fashionable plaintiff alleges negligence. The pleading assumes that we are all neighbours now, Pharisees and Samaritans alike, that foreseeability is a reflection of hindsight and that for every mischance in an accident-prone world someone solvent must be liable in damages.’ The Anns test was superseded by Caparo Industries v Dickman9 and Bridges, L. laid down the requirements that must be satisfied before a duty of care is held to exist: What emerges is that, in addition to the foreseeability of damage, necessary ingredients 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 characterised 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 upon the one party for the benefit of the other. The current test is that there must be 1. Foreseeability of the damage, 2. A sufficiently ‘proximate’ relationship between the parties, and 3. It must be fair, just and reasonable to impose such duty. It is now obvious in the Caparo test that the criterion of public policy is inseparable from the propriety of determining duty of care in negligent tort cases. Public policy provide the meaningful guide for decisions in future cases. It seems to be that these policy considerations are different from those considered by the court ‘to limit liability’10 but sometimes those policies on the imposition of duty of care and those that limit liability are rather inter-related and inseparable. Considerations of public policy involve value judgements on matters of public morality, interests and behaviour normativity and its degree as imposable in the case. It nevertheless has the effect wherever proper of constraining the imposition of duty of care and therefore the resultant liability finding. The ripple effect of some forms of negligence has the effect of removing the victim from the direct effect of the negligence. There is the need to find an approach duty of care which balances the need for corrective and compensatory justice to victims of negligence while preventing indeterminate liability where potential awards far outweigh the wrong done. Justice to the plaintiff may be weighed against wider public interest and policy concerns (including the undermining of existing patterns of law in other field, statutory intent denying such liability, interference with defendant’s legitimate pursuit of personal advantage, economic efficiency and availability of insurance and other remedies.) There are also more specific policy issues which may conflict with the right of innocent plaintiff to be compensated for negligently generated economic loss. All of the foregoing issues accommodated and balanced in the various claims cause different formulations for the ascertainment of duty of care in a given circumstance. Potentially relevant legal policy factors must be prioritized and their significance in any given circumstance depends on the value judgements. There is always the continuing danger that these legal policy factors may produce just outcome on the duty issue by weighing public interest factors against individual rights at the expense of certainty and predictability. Policy considerations were first expressly recognized in the Wilberforce and Caparo tests. Arguments that an extension of liability for negligence would lead to a flood of litigation or to fraudulent claims were once granted greater credence than they are today. There are other arguments such as the possible commercial or financial consequences, the prospect of indeterminate liability, the possibility of risk-spreading (e.g. through insurance) and potential conflicts with rights in property or other social or moral values, are given due consideration. The reliance of modern tort law upon public policy considerations was implied by the historical analysis/demonstration method employed by Atkins, L. in the Donoghue case; his references therein to the earlier cases of Heaven v Pender11 and Le Liever v Gould12 indicate his perception that reasonable foreseeability as test for duty of care “was demonstrably too wide”13 to invariably become the public policy of the modern times. He considered that “if properly limited was capable of affording a valuable practical guide.”14 The public policy being considered then was an overriding control on reasonability at large and the proper circumscription of of the relations between the plaintiff or his property and the defendant or his property as well as the circumscription of liability through the proper imposition of duty of care. Atkins, L. stated in the judgement that a defendant is not liable to all those whose damage can reasonably be foreseen as a result of the defendant’s negligence but only to those “neighbours” who are in such close and direct relations to the defendant or who are so closely and directly affected by the defendant’s acts, that the defendant ought reasonably to have them in contemplation. Labels such as voluntary assumption of responsibility, specific or general reliance, relationship next to contract, control and dependence, special relationship between the parties, are merely factors indicating closeness and directness of relationship. Such factors assist in answering the ultimate question of whether the plaintiff was so closely and directly affected or was in such close and direct relationship with the defendant that the defendant ought to have had the plaintiff in contemplation as being so affected. Looking backwards it can be seen that Atkins intuitively inserted in the interest of justice into the elements for consideration of the court the very crucial public policy. It can also be concluded therefore that the valuation of proximity is a public policy consideration that in all negligent tort cases constitute the greater criterion of fairness, justness and reasonableness to impose a duty of care and the reformulations being made by the court are merely means to anchor in some sense of certainty and predictability. A wide range of factors that may be relevant to the denial of a duty of care have also been identified. A duty of care may not exist in the following cases: 1. Where the claimant is himself the author of his own misfortune;15 2. Where a duty of care would lead to unduly defensive practices by defendants seeking to avoid claims for negligence with detrimental effects on their performance of some public duty;16 3. Where the award of damages against a public authority exercising a public function would have an impact upon the resources available to the authority to perform its duties, both in terms of the damages and costs, and in terms of the resources required to investigate and defend spurious claims;17 4. Where a duty of care would cut across a complex statutory framework established by Parliament for regulating particular circumstances, such as the regulation of financial markets18 or the protection of children at risk;19 5. Where there is an alternative remedy available to an aggrieved claimant, such as a statutory right of appeal from the decision of a government officer or department, or judicial review or another source of compensation, such as the criminal injuries compensation scheme, or another cause of action, such as a claim for breach of contract, even where the action would be against a different defendant; 6. Where a duty of care would tend to undermine the requirements of other causes of action, particularly in the case of complex commercial contracts where the parties have had opportunity to negotiate a detailed structure of contractual negotiations. The duty of care issue reflects the fact that not all relationships, activities and forms of harm are recognized as fully within the ambit of liability in negligence or if so, only to a limited degree, e.g. economic competition, negligent misrepresentation, failure to act, pure financial loss, nervous shock, etc. It also allows the court to assess the ambit of liability and whether there is a need to expand it to take into account the changing conditions of the case and the policy considerations of the times. Again, duty of care allows the court to determine whether the type of situation, relationship or of harm should be embraced by negligence liability and if so, the limits that should be applied to that duty. Following the premises already discussed, it is undeniable that Donoghue is not a resolution on the merits of facts at issue of law but rather one on the question of social policy. This is not contrary to common law and equity which can proceed inductively and allows the court to state the law to determine whether it embraces the current situation. The law on tort and negligence itself spelled concrete rights and duties of the law derived from striking a balance between the social interests in preventing the doing of harm on one side and protecting freedom of action on the other. The subsequent cases to Donoghue extended the proximity rule in the direction of Hedley Byrne v Heller20, Home Office v Dorset Yacht21 and Anns v Merton22. The House of Lords in Hedley Byrne found grounds not to find duty of care on the facts of the case but they laid out parameters for when duty of care can exist in misrepresentation. It is an extension of the doctrine of assumption of risk first developed in Caparo case harking back to the reliance principle and subsumed in the proximity element of tort law. Hedley Byrne’s assumption of risk is further extended by White v Jones.23 Home Office case extended the duty of care outside the bounds of the public institution and regarded the neighbour test as an assumed principle in negligence subject to well-known exceptions. The Anns case revisited the assumed duty of care and imposed liability to public authority for failure of its officials to do their job properly based on a sufficient relationship of proximity between the parties on reasonable contemplation of harm. Presently, a number of statutory rules apply in particular to employment, disability discrimination, health and safety, data protection and occupier’s liability to name a few. These statutes impose both duty and standard of care and prescribe the penalty for damage and breach of duty. These statutes serve to provide the public policy governing the particular cases covered. Institutions are expressly imposed duties of care by statutes in addition to common law duties of care and consequent vicarious liability in certain cases. Tort law may impose a duty of care where a special relationship exists between the plaintiff and the defendant. In some cases, this duty can extend to third parties, where damage is caused to that third party by a person under the care and control of the defendant.24 The question of duty of care has been given a two stage approach by Anns and Caparo tests. While the first stage inquires into the relationship of proximity or neighborhood, the second inquires into legal policy and the basis for the imposition of duty of care. Questions of fairness, justness and reasonableness are recognized to temper the duty of a given scope on the wrongdoer for the benefit of such person as imposed by law. Questions of public policy and interest reflect the need to limit the imposition of such duty of care to that which is fair, just and reasonable. This is so because the law of negligent tort must ultimately respond to common notions of fairness, justice and reason because without which the principles of foreseeability and proximity alone would lead to imposition of duties of care which are neither fair, nor reasonable nor realistic. Despite the preferred concern for imposition of duty of care, it is public policy concerns for imposing limitations on liability that have more tangible effects. It may even be argued that the question of duty is not an element to the court’s policy determinations and this happens generally because the concept of negligence is peculiarly elusive and the trier of facts must pass upon the reasonableness of the conduct in the light of all of the circumstances because negligence is a breach of the duty shared by all members of society to refrain from those acts that may unreasonably threaten the safety of others. The following public policy considerations that may preclude liability are: 1. The injury is too remote from the negligent act, 2. The injury is too wholly out of proportion to the defendant’s culpability, 3. In retrospect, it appears too highly extraordinary that the negligence should have resulted in the harm, 4. Allowing recovery would place too unreasonable a burden on the defendant, 5. Allowing recovery would be too likely to open the way for fraudulent claims, or 6. Allowing recovery would enter a field that has no sensible or just stopping point (floodgates theory). The application of public policy considerations is solely a function of the court and in the aspect of negligent tort as it evolved from Atkin’s Donoghue and Wilberforce’s Anns and the latter Caparo, especially keeping in mind that the very elements themselves are public policy considerations, the inexorable conclusion is that public policy at all times influences the courts in deciding fairness, justice and reason in the imposition of the duty of care in the cases of negligent tort. Again, tort law is itself concerned with public policy, including goals like equity, protection of children, disabled, environment and the like. English courts have the tendency to allow tort liability unless it is less than that margin of error which demonstrates the tendency to defer to standards which are set by the profession itself or regulatory bodies because in those cases it is considered to be unfair, unjust and unreasonable. REFERENCES: Anns v Merton LBC [1977] 2 All ER 492. Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1989] WLR 25. Blyth v Birmingham Waterworks Co. [1956] Caparo Industries v Dickman [1990] All ER 568 HL CBS Songs v Amstrad [1988] 2 All ER 484. Donoghue v Stevenson [1932] AC 562 Heaven v Pender [1883] 11 QBD 503. Hedley Byrne & Co v Heller & Partners Ltd [1963] 2 All ER 575 HL. Henderson v Merrett [1995] 2 AC 145 Hill v CC of West Yorkshire [1988] 2 All ER 238 Home Office v Dorset Yacht Co. [1970] AC 1004. Lamb v Camden LBC [1981] 2 All ER 408. Le Lievre v Gould [1893] QB 491. Lochgelly Iron & Coal v McMullan [1934] Philcox v Civil Aviation Authority, The Times, 8 June 1995. Rowling v Takaro Properties [1988] All ER 163. Swan v North British Australasion Co. [1862] 31 Law J. Exch 437. Van Oppen v Clerk to the Bedford Charity Trustees [1990] WLR 235 White v. Jones [1995] AC 145 X [minors] v Bedfordshire CC [1995] 3 All ER 353 Yuen Kun Yeu v AG of Hong Kong [1987] 2 All ER 705. Read More