UK - TORT LAW (Essay Sample)

Part I – Tort Law Question: The concept of the duty of care Introduction: The remark of Lord Bingham in JD v East Berkshire Community Health NHS Trust & Ors alludes to his reading of the development of jurisprudence in negligence cases regarding duty of care where he means that it appears that English courts are dispensing with an enquiry into whether a defendant’s duty of care exists as a preliminary step before determining any breach thereof. Lord Bingham says that it seems that courts are proceeding (or should proceed) on the assumption that there is no blanket immunity and a determination of breach of duty must be made on the facts and circumstances of each case, taking care to emphasise that any determination of liability only on this ought to be strict and must involve an act or omission that clearly departs from the ordinary standards of skill and care. His equating the test or exercise of determining whether or not a duty exists in the first place as a ‘blunt instrument’ implies firstly that different courts can arrive at different conclusions vis a vis the same defendant making it difficult for courts in later cases to discern a clear judicial stand and secondly, in a public law context, it would be inequitable for some defendants to have a blanket immunity given that grave damage could have been caused to the claimant (for example, infraction of Convention or human rights) deserving of redressal from the court. However, Lord Bingham’s reading does not comport with the actual development of jurisprudence on this aspect. From the research for this paper and an overview of the cases, what emerges is that in areas where there is a sufficient ‘critical mass’ of case law covering all possible facts and circumstances, the contours of the duty of care stand well-established to the point that some entities enjoy blanket or partial immunity from claims of negligence. On the other hand, in cases where the courts are being confronted with new categories of negligence, novel either in terms of acts complained of or against new entities, a case by case approach is being adopted where there is no presumption of immunity or absence of a duty of care. Thus, Lord Bingham’s statement can only be partially agreed with insofar as it relates to the second category of cases. Historical development of duty of care: The common law duty upon a person to not be negligent, be careful and not harm others by his acts or omissions can be traced to Blyth v The Birmingham Waterworks Co. where the court laid down the standard of a ‘reasonable man’ stating that negligence is omission or commission of acts complained of that is benchmarked against considerations that normally regulate the conduct of human affairs and judged with reference to acts which a prudent and reasonable man would do or not do in the given circumstances. The extent of the duty of care or the persons to whom such duty was owed was, of course, established by the landmark case of Donoghue v Stevenson in which the court invoked the Biblical principle of ‘Love thy neighbour’ to lay down the doctrine of the ‘Neighbour principle’ where the ‘neighbour’ is defined as a person who ought to have been in the tortfeasor/defendant’s contemplation when his mind is directed to the acts or omissions in question. This has become the cardinal touchstone in most negligence cases and in Home Office v Dorset Yacht Co. Ltd the House of Lords reiterated its importance, stating that the neighbour test ought to be applied unless there is some justification or valid explanation to exclude its applicability. Legal proximity public policy considerations and reasonableness: Two major justifications for excluding or limiting the applicability of any duty of care to give rise to liability are ‘legal proximity’ and ‘public policy’, the latter in itself encompassing a range of situations including the possibility of flood of litigation, impairment of the functions or operations of a defendant-entity (especially those engaged in community service), security and sovereignty of the state, etc. As regards ‘legal proximity’ which broadly corresponds to the doctrine of remoteness of damages, the court in Best v Samuel Fox & Co Ltd summarised this concept by stating that when an invitee was injured, the defendant was not liable to compensate other persons who subsequently suffered like a daughter who may have to give up work and care for her injured father since the defendant owed such persons no duty and may not even be aware of their existence, (i.e., the element of ‘foreseeable harm’ – a necessary element in negligence and for establishment of a duty of care—is absent in such cases). In Anns v Merton London Borough Council the court postulated a two part test to determine whether the claimant was entitled to any relief: (i) whether there is sufficient relationship of proximity between the parties in which case a prima facie duty arises, and; (ii) whether there are any policy considerations that could negative or reduce or limit the scope of such duty. In practical application of the Anns test, while the first limb could be fairly easily established, public policy considerations as identified above constrained courts to deny many claims, thus becoming a ‘blunt instrument’ mentioned by Lord Bingham. At the same time, Anns was used by courts to expand the scope of duty, for example, to cases of pure economic loss as in Junior Books v Veitchi by the House of Lords, an area in which relief was previously not granted due to public policy considerations. Given these uneven results, the courts tried to distance themselves from the Anns test. For example, in Peabody Donation Fund v Sir Lindsay Parkinson Ltd, the court held that the two-part Anns test was not of ‘definitive character’ and that apart from the two considerations therein, it was also necessary to determine whether it was ‘just and reasonable’ to conclude that a duty of care exists. In Murphy v Brentwood DC, the House of Lords overruled Anns holding that it did not state a universally acceptable principle and that the approach suggested in the Australian case of Sutherland Shire Council v Heyman was preferable in which Brennan J. stated that novel categories of negligence should be developed incrementally and by analogy with established categories as opposed to ‘a massive extension of a prima facie duty of care’ that is restrained or circumscribed only by vague considerations that negative or reduce or limit the scope of the duty or the class of persons to whom such duty is owed. It was in these circumstances that the House of Lords formulated the three-part test in Caparo Industries plc v Dickman where a duty of care arises in cases where: (i) the harm is foreseeable; (ii) the relationship between the two parties is one of ‘proximity’ or ‘neighbourhood’, and; (iii) the court considers it ‘fair, just and reasonable’ that the law should impose a duty of a certain scope on one party for the benefit of the other. Pre-existing immunity or case by case approach? : JD v East Berkshire Community Health NHS Trust & Ors related to three claims by parents against doctors and hospitals who had misdiagnosed their respective children and had wrongly attributed the children’s health problems to negligence by the parents, recommending that the state intervene to prevent further abuse as a result of which the parents developed psychiatric problems. The House of Lords debated whether the defendants owed a duty of care to the parents and were liable to them for professional negligence. By a majority of 3:2, the court ruled that the parents had no locus standii to pursue the claims as there was an absence of legal proximity with the parents, the duty of the defendant being only towards the children. Moreover, public policy considerations militated against recognition of any duty of care on part of the defendants-medical authorities towards the parents as that would create a conflict of interest with their primary duty to take care of the children and keep their interests paramount and impede their conduct and actions if they were to continuously be at risk of costly and vexing litigation by parents. The genesis of the dilemma of whether or not there can be immunity on certain defendants regardless of the facts at hand can be traced in the modern day to the ruling of the Strasbourg court in Osman v United Kingdom where the court held that it was improper for the domestic court’s to interpret the law in such a way that it provided a blanket immunity to the police. The Strasbourg court stated that while every act or omission of the police should not lead to potential litigation, claims could still be pursued against them on a case to case basis. This ruling has caused considerable discomfort in the municipal courts. For example, in Barrett v London Borough of Enfield, Lord Browne-Wilkinson summation of Osman’s possible implications suggest that that the ruling in Osman emanated from the civil-law moorings of the Strasbourg court where precedents do not have perform the role of stare decisis as he has pointed out that in English courts, the practice of declaring a certain defendant immune from negligence claims proceed not from an attempt to give immunity per se but from consideration of whether any liability was fair, just and reasonable to be imposed under the circumstances as a matter of public policy. In support, he pointed out that some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases, etc. were already immune to afford them full performance of their duties for the benefit of society and from inhibiting their functions by constantly having to look over their shoulder to avoid liability in negligence. In other words, the practice was founded on weighing in the balance the overall detriment to public interest due to impairment of the functi...