TORT LAW
Despite the plethora of case law
on the subject it seems likely that the precise formulation of the general
approach to the duty of care is of limited practical importance. What is more
significant is the clear recognition in modern judgments that the duty issue
depends heavily upon what is fair, just and reasonable’(Winfield and Jolowicz
on Tort 17th Ed)
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Introduction
Tort law is the most recent
branch of private law to have developed and has been subject to rapid change
during its short life. There has been some controversy as to the way in which
the duty of care principle has been established, and the question raises complex
issue to do with the relationship between policy and principle. [1]
This assignement raises complex
questions regarding the relationship between policy and principle, to the
extent that the law should seek to regulate or deter dangerous behaviour, and
of the scope of neighbours to whom one’s duty of care should extend.
This essay will begin by
outlining the three negligence tests that have been used by the courts, and
consider the role of policy and the argument that different negligence tests
might be appropriate in different areas of tort law. It will also be argued that the current approach
of Courts is highly flawed and that they may develop the test of a duty of care
differently in future cases following the Compensation Act 2006 and the desire
not to create unsustainable levels of tort liability. In particular, reference will be made to the
different tests involved in cases of medical negligence and pure economic loss.
This essay will conclude that the current approach of the courts in establishing
whether to find a duty of care is to develop within certain fact-specific
patterns, and that this method is much more reliant on the plethora of case law
already in existence than the precise formulation of the legal test.
First Steps: Donoghue v Stevenson to Anns v Merton LBC
The foundational case in tort law is of course
Donoghue v Stevenson[2]
where it was held that individuals might owe a duty of care in respect of their
neighbours not to cause harm where that harm might be reasonably foreseeable. At
the outset, it is clear that the courts developed an expansive concept of the
duty of care principle; they did not wish to place undue restrictions on the
ability of the courts to impose liability for negligence where damage was found
to have occurred. Pertinently, Lord Macmillan stated that the ‘categories of
negligence are likely never to be closed.’[3]
The modern law of tort and the development of the three tests below can be
deemed to have begun following the rejection of the high-water mark of tort liability
in Anns v Merton LBC[4]
where it was held that all proximate and reasonably foreseeable harm would give
rise to a duty, except where there were considerations that ought to negative
or reduce the scope of that duty.
Assumption of Responsibility: Hedley Byrne v Heller and Partners
The assumption of responsibility test was
developed first in the case Hedley Byrne
v Heller and Partners[5]
in the context of negligent misstatement. The court held that a financial
advisor was liable in tort for pure economic losses caused to a third party due
to the provision of a misleading comfort letter. As outlined by Lords Morris,
Reid and Devlin, the relevant test was that the defendants has assumed a
responsibility towards the third party, despite their explicit statement that
it was made ‘without responsibility on the part of the bank.’ The assumption of
responsibility test was subsequently applied in a number of cases, all of which
involved a similar fact-pattern of economic losses caused due to the provision
of inaccurate information or poor provision of a financial service. This line
of cases includes Henderson v Merrett[6],
Spring v Guardian Assurance[7],
White v Jones[8] and Williams v Natural Life[9].
Christian Witting[10]
uses the assumption of responsibility line of cases to argue that the law of
negligence is capable of developing using a principled, fact-based test without
recourse to wider policy reasons. It should be noted, however, that the
negligent misstatement cases contain some form of intrinsic limit as to how widely
tortuous liability would be cast: the potential number of claimants is limited
to the number to which any given defendant undertook a responsibility.
The author would argue that the assumption of
responsibility test provides an excellent example of where different tests of
negligence might justifiably apply in different fact-patterns. In the context
of the provision of information between certain individuals, the assumption of
responsibility test is justified and entirely coherent. However, it seems equally
clear that it would not be coherent or justifiable to apply the test in
different fact-patterns, such as in the context of medical negligence. The task
of determining the test for a duty of care in medical negligence is
particularly difficult due to the specific policy needs: the law must balance
the need of the patient to recourse if they receive substandard treatment, to
protect doctors from undue liability, and to recognise that all medical
procedures – and particularly experimental procedures – involve a degree of
risk. In the case of McFarlane v Tayside
Health Board[11] the House of
Lords held that there were particular policy reasons mitigating against the
finding of a duty of care in a case where a failed sterilization procedure had
resulted in the birth of an unwanted child.
The court’s reasoning turned in part on the
concept that the law could not – as a matter of policy – provide compensation
for the act of childbirth, since it regarded that occurrence as beneficial.
Oppenheim[12]
has criticized the case on the basis that it represents an unprincipled
application of policy to the test of breach of duty, but it provides a clear
example of why different tests for a duty of care are appropriate in different
areas: an assumption of responsibility test would not, for example, allow the
court scope to consider the appropriate concepts for the law of negligence in
the context of McFarlane facts.
Threefold Test: Caparo Industries v Dickman
The threefold test was developed in the case
of Murphy v Brentwood District Council[13]
and received the explicit endorsement of Lord Bridge Caparo Industries v Dickman[14]
and was followed in Smith v Bush.[15] The court in Murphy formulated the well-known three-stage test for determining
the existence of a duty of name, namely whether (i) there was a foreseeable
risk of harm to the claimant, (ii) the was sufficient proximity, and whether
(iii) it would be fair, just and reasonable in all of the circumstances to
impose a duty of care in the given circumstances. This formulation elucidates a
structured, principled test[16]
for establishing whether a duty of care should be found in any given case. It
seems from the case law that the courts have approached the question by
categorizing the fact-patterns in which a duty of care has previously been
found to exist, and then reasoning by analogy to determine whether any new
factual variant that is presented to the courts should be ‘fair, just and
reasonable.’
Professor Jane Stapleton[17]
has argued that the categorization approach is a highly inappropriate method of
determining whether a duty of care should exist. She argues that the law
following Caparo has adopted a
‘pockets of liability’ approach, where the finding of a duty of care is
dependent on characterizing any given case before the courts as analogous with
an existing category in which liability has been recognized. She believes that
this renders the test highly problematic, since many cases may contain more
than one relevant factor; and the court does not explain which factor it
chooses to categorize the case and why this factor was given prominence. The
example given is that a case might concern elements of pure economic loss and
the liability of public authorities. Which line of cases, then, does the court
follow in determining liability: the case law on pure economic loss, or the
case law on the tort liability of public authorities? She also argues that the
‘fair, just and reasonable’ test results in the court looking to issues of
distributive justice – questioning how many claimants might be affected, and
how many tortfeasors would potentially be subject to liability – rather than on
the relationship between the parties that the assumption of responsibility test
looks to.
Holistic Test: Customs and Excise Commissioners v Barclays Bank
A partial solution to this problem may lie in
the holistic test developed in Customs
and Excise Commissioners v Barclays Bank.[18]
Subsequently followed in Rice v
Secretary of State for Trade and Industry, the courts held that they should
look to a range of factors when determining the existence of a duty of care,
including the assumption of responsibility test and an assessment of the
proximity of the parties. The courts also recognized the problem that tort law
may resolve into a “morass of single instances”[19]
of liability and stated that the ‘pockets’ approach was of little use when
applied to a novel fact-pattern. It is possible that this approach may contain
the key to promoting a full, policy-oriented discussion of the direction of
tort law and a number of fundamental policy principles that might drive future
developments in the concept of duty of care.
Written by Andreea
Bostan
Bibliography
1.
Donoghue v
Stevenson [1932] AC 562
2.
Anns v
Merton LBC [1978] A.C. 728
- Hedley Byrne v Heller and Partners [1964] AC 465
4.
Henderson v
Merrett [1994] 2 AC 145
5.
Spring v
Guardian Assurance
6.
White v
Jones [1995] 2 AC 207
7.
Williams v
Natural Life [1998] 1 WLR 830
8.
McFarlane v
Tayside Health Board [2000] 2 AC 59 (HL)
9.
Caparo
Industries v Dickman [1990] 2 AC 605
11. Customs and Excise Commissioners v Barclays Bank [2007]
1 AC 181
- K Horsey and E Rackley, Tort Law (Oxford University Press, Oxford
2009)
- C Witting, ‘Duty of Care:
An Analytical Approach’ (2005) OJLS
25 (33)
- J Morgan ‘ The rise and fall of the general duty of care’ (2006) PN 22(4) 206
- J Stapleton, ‘In Retraint of Tort’ in P H Birks (ed) The Frontiers of Tort Liability (Oxford OUP, 1994)
- J Stapleton, (1991). "Duty of care and economic loss: a wider agenda". Law Quarterly Review 107 (249).
- R Oppenheim, ‘The "mosaic" of tort law: the duty of care
question’ (2003) J.P.I. Law 151
- WVH Rogers, ‘Negligence: duty and breach’ in WVH Rogers Winfield and Jolowicz on Tort (London Sweet & Maxwell, 2010)
[3] ibid at 619
[4] Anns v Merton
LBC [1978] A.C. 728
[5] Hedley Byrne v
Heller and Partners [1964]
AC 465
[6] Henderson v
Merrett [1994]
2 AC 145
[7] Spring v
Guardian Assurance
[8] White v Jones [1995] 2 AC 207
[11] McFarlane v
Tayside Health Board [2000] 2 AC 59 (HL)
[13] Murphy v Brentwood District Council
[1991] 1 AC 398
[14] Caparo
Industries v Dickman [1990] 2 AC 605
[16] WVH Rogers, ‘Negligence: duty and breach’ in
WVH Rogers Winfield and Jolowicz on Tort
(London Sweet & Maxwell, 2010)
[17] J
Stapleton, ‘In Retraint of Tort’ in P H Birks (ed) The Frontiers of Tort Liability (Oxford OUP, 1994) and J Stapleton, ‘Duty
of Care & Economic Loss: a wider agenda' [1991) 107 LQR
249
[18] Customs and
Excise Commissioners v Barclays Bank [2007] 1 AC 181
Despite the plethora of case law
on the subject it seems likely that the precise formulation of the general
approach to the duty of care is of limited practical importance. What is more
significant is the clear recognition in modern judgments that the duty issue
depends heavily upon what is fair, just and reasonable’(Winfield and Jolowicz
on Tort 17th Ed)
THIS ARTICLE AND THE CONTENT OF THIS ARTICLE IS PROPERTY OF BOSTICO INTERNATIONAL. UN-AUTHORISED REPRODUCTION WILL CONSTITUTE A BREACH OF COPYRIGHT LAWS. You will be accused of PLAGIARISM if you don’t acknowledge BOSTICO INTERNATIONAL.
THIS ARTICLE AND THE CONTENT OF THIS ARTICLE IS PROPERTY OF BOSTICO INTERNATIONAL. UN-AUTHORISED REPRODUCTION WILL CONSTITUTE A BREACH OF COPYRIGHT LAWS. You will be accused of PLAGIARISM if you don’t acknowledge BOSTICO INTERNATIONAL.
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