Essay: Duty of Care [67]

Question:

‘It has to be recognised that to search for any single formula which will serve as a general test [for whether a duty of care is owed] is to pursue a will-o’-the wisp.’ (Lord Oliver in Caparo v Dickman)

Discuss.

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Answer:

While certainty and consistency are key to the uniform and just application of the law, the use of a single formula to serve as a general test for finding a duty of care would be unsatisfactory. Endeavouring to find such a test has even been described as ‘elusive’.[1] However, this is not to say that the common law has not established a general framework for the courts to follow. In this sense, while there is not a single formula that serves as a general test, there is an established method that the judiciary follow to find a duty of care in negligence cases.

Benefits of the 2 Test System:

Caparo established a two-test system for finding a duty of care in relation to negligence.[2] Bridge LJ first correctly applies the judgement found in Donoghue by searching for a duty of care by reference to a different and specific situation linked by a common principle.[3] Bridge LJ then applies the test established in Anns by searching for a duty of care by reference to a general principle.[4] All other judges concurred with the leading judgement given by Bridge LJ. It can therefore be said that the search for a single test is inconsistent with the ruling in Caparo, which is the most authoritative case on the current law.

The two-test system set in Caparo combines the benefits of both the incremental approach and three-stage test. By starting with analogy to a previously recognised duty of care (incremental approach), the law remains consistent and predictable. However, if this were to be relied upon alone, a claimant would never be able to make a successful claim in a novel scenario. In cases where unique relationships between parties arise and no duty of care has been established prior, the tripartite test can be applied to establish whether the law should recognise such a duty in relation to the surrounding policy concerns. Reed LJ describes this two-test system as a ‘balance between legal certainty and justice’,[5] whereby the courts respect precedent but also have a means of developing the common law too.

The ratio in the case actually relied on the incremental approach, but it should be noted that the Caparo test set by Bridge LJ has been successfully applied in both Robinson and The Nicholas H by the Supreme Court.[6] While the court in Robinson used the system to find a duty of care where there was previously the mistaken belief that police officers did not owe a duty of care while performing their duties, the court in The Nicholas H found that there was not a duty of care due to policy concerns. Had the Supreme Court felt that the approach adopted in Caparo was unsatisfactory, they would have had ample opportunity to explicitly change it. This demonstrates how the Caparo ruling has neither widened nor restricted the finding of duties of care in a negative manner, addressing the concerns of some of the concurring judges.

The Supreme Court in Robinson did, however, reaffirm that the three-stage test should only be applied in novel cases; the earlier Court of Appeal ruling was in direct conflict with the Supreme Court’s earlier ruling in Michael due to its incorrect interpretation of Caparo.[7] This clearly demonstrates the Supreme Court’s sustained apprehension towards a position of adopting a single test for finding a duty of care.

Drawbacks of a Single Test Approach:

While the implementation of a single test would provide clarity on how the courts should find a duty of care with a convenient structure to follow,[8] it would be hard to establish a definition that did not unduly widen or restrict the court’s jurisdiction in finding duties.

It must be noted that a two-test system does not necessarily mean that the law is uncertain. While a single test may provide more clarity in theory, this may not translate to practice. The judgement in Donoghue is a paradigm example of why this is the case: while all of the judges came to the same conclusion about the duty of care owed from Stevenson to Donoghue, their interpretations and applications of the neighbourhood principle differed radically.[9] Furthermore, the attempt to adopt a single test has been futile thus far; the Anns test received criticism for making the scope of liability too wide,[10] while the approach prior to Donoghue was too limiting. Bridge LJ noted that the Anns test ‘emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed’,[11] hence why the House of Lords overruled the test, reinstating the incremental approach and applying the Caparo test (in itself an extension of the Anns test) for novel situations only. Therefore, it can be shown that a single test, especially when ill defined, can actually lead to more uncertainty than a broader approach.

It could be argued that the court in Caparo never intended for the three-stage test to form good law, but to prove that the law on negligence cannot be confined to a single test for finding a duty of care. Toulson JSC observes that

this passage in Lord Bridge's speech has sometimes come to be treated as a blueprint for deciding cases, despite the pains which the author took to make clear that it was not intended to be any such thing.[12]

He continues

the whole point of the Caparo case … was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists…[13]

In light of this, it seems Bridge LJ’s intention in Caparo was not to set a test, but to prove that it would be insufficient to set a single formula to serve as a general test.

Conclusion:

To conclude, the search for a single formula to serve as a general test for finding a duty of care is futile. The law regarding negligence and duties of care is an extremely complex field; no single test would be able to sufficiently encompass all situations where a duty of care is owed and exclude those where a duty of care ought not to be. The two-test system established in Caparo works as a tolerable balance between undue stagnancy, justice and an overburdening number of cases.

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Feedback:

Grade: 67

Feedback: Very good analysis and use of case law. But, the essay could be more structured.

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References: [1] Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 (Toulson JSC) [2] Caparo Industries plc v Dickman [1990] 2 AC 605 (HL) (Bridge LJ) [3] Donoghue v Stevenson [1932] UKHL 100 (Atkin LJ) [4] Anns v Merton London Borough Council [1977] UKHL 4, [1978] AC 728 [5] Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736 (Reed JSC) [6] Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736; The Nicholas H (Marc Rich & Co Ltd v Bishop Rock Marine Co Ltd) [1996] AC 211 [7] Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 [8] Mark Cannon QC and Josh Folkard, The Caparo Illusion: The Three Stage Test Has Gone. What Happens Next? (4 New Square, Lincolns Inn 2019) [9] Donoghue v Stevenson [1932] UKHL 100 [10] Richard Kidner, ‘Resiling from the Anns principle: the variable nature of proximity in negligence’ (Cambridge University Press 2018) Legal Studies 7(3) 319-332 [11] Caparo Industries plc v Dickman [1990] 2 AC 605 (HL) (Bridge LJ) [12] Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 (Toulson JSC) [13] Ibid.