INTRODUCTION

The courts of England and Wales have long since grappled with how to approach duty of care in tort law. The search for a single test for establishing a duty of care, however, is hopeless due to the nature of negligence and society. A general test for a duty of care between a claimant and a defendant has existed since the landmark case of Donoghue v Stevenson, alongside breach, causation and remoteness, for a successful negligence claim. Unlike the other requirements, however, duty is profoundly exposed to changing social norms. This blog post will therefore narrow its scope to a socio-legal lens to demonstrate that a single test for duty is unsustainable in three ways. It will first be shown that a single test is impossible due to the nature of negligence and society. Secondly, how this is reflected in the judiciary’s failure to carve out a single test will be considered. Lastly, it will be shown how the courts’ current approach to duty, which is not contingent on a single test, is most suitable to this area of law. Many scholars and judges have accepted that the judiciary has been unable to define a single test to date, however few have conceded that an adequate solution has emerged from the courts’ examination of the duty of care to date (see, for example, Lord Lloyd-Jones’ comments at [15] in Darnley v Croydon Health Services NHS Trust). This analysis will consequently conclude that the current judicial approach to duty is the most suitable way of deciphering whether or not a duty of care is owed.

I. THE IMPOSSIBILITY OF A SINGLE TEST

Firstly, establishing a single test for whether a duty of care exists is impossible due to the nature of both negligence and society. Unlike most other torts, negligence does not protect a particular interest and significantly overlaps with other areas of law. This means that an infinite number of possible causes of action exist in negligence, all of which a single, “special” test could not accommodate without infringing how other interests are protected, as noted by Lord Phillips in Gregg v Scott. Establishing a single test is also impossible due to the evolving nature of society. This is significant as duties specify requirements as to the way in which people engage in conduct by capturing social “sentiment”; an idea that is largely uncontested by corrective justice and civil recourse theorists such as Cane, Goldberg and Zipurksy. However not only is there an infinite variety of relationships between individuals, but the norms of such relationships are constantly evolving. This makes it impossible to generate a single, perennial test for duty which will apply to “every situation”, as envisioned by Lord Atkin in Donoghue v Stevenson.

The opinion to the contrary, however, merits consideration. Buckland, for example, contends that the concept of duty is redundant and should be abandoned. Such a view is compelling through the “fault-based” lens of negligence liability espoused in Fairchild v Glenhaven Funeral Services Ltd, which maintains that an individual only has a duty to pay damages to those upon whom they inflict loss. On this basis, duty is unnecessary as it does little to prove fault. However Buckland overlooks the fact that the courts determine liability by considering what “reasonable” steps could have been taken to prevent a harm within the duty defined. The “wrong-based” view of liability, advocated by Goldberg and Zipursky, is consequently more compelling as by leaning in a deontological direction, it recognises duty as ex ante as is custom in the courts. As duty remains integral to negligence, the tort will continue to be exposed to societal change. As a result, it is clear that the nature of negligence and society means that establishing a single test for duty is impossible.

II. THE COURTS’ FAILURE TO ESTABLISH A SINGLE TEST

Secondly, the impossibility of a single test for duty is reflected in the judiciary’s failure to establish one. The most commonly applied gateway to duty has been the Caparo Industries plc v Dickman tripartite test; which requires the foreseeability of harm, sufficient proximity of relationship, and that it is fair, just and reasonable to impose a duty. Although other tests have included owing a duty where one’s act or omission may foreseeably injure a neighbour, where an individual assumes a responsibility to another, and within the scope of the neighbour principle provided no opposing policy consideration exists (see, for example, Donoghue v Stevenson, Hedley Byrne & Co Ltd v Heller & Partners Ltd, and Anns v Merton LBC). However, as pointed out by Nolan, these tests have proven unable to accommodate “new” types of harm such as psychiatric illness and economic loss, for which the courts have been forced to develop new categories.  Each will be dealt with in turn.

Firstly, due to difficulties associated with the foreseeability of psychiatric harm given its idiosyncratic nature, the courts have forged separate tests for primary and secondary victims of such harm. These tests are, however, fail to provide a suitable response to social complexity.  For example, the test for secondary victims, who witness but do not participate in a given event, requires “close ties of love and affection” between the claimant and the injured victim following Alcock v Chief Constable of South Yorkshire. Yet, the Law Commission has been quick to highlight how this does not capture modern society in which the family unit typically includes grandparents and cohabitants, who are generally considered not to satisfy this test. Similar criticism can be directed at the Alcock requirement that the claimant viewed the event with their “own unaided senses”. Whilst the case of Alcock concerned when liability might arise for incidents that people might apprehend through the medium of television, the content of which was restrained by the Broadcasting Code, the modern spectator can view events as though present through a miscellany of social media platforms untethered by such codes (see the Broadcasting Act 1990).  Such considerations cast doubt over this category, particularly as new psychiatric illnesses emerge such as occupational stress and nomophobia.

Secondly, the courts have developed a category for economic loss. This is again due to difficulties in relation to the foreseeability requirement, given that financial loss is often a matter of “pure chance”, as noted by Harvey. In cases concerning misstatements and services which cause financial loss not consequent on physical damage, duty has come to hinge instead on whether a responsibility has been assumed via the ‘Hedley Byrne v Heller’ exception. The fact that the judges in Hedley Byrne disagreed over whether this could be applied alongside tests of foreseeability ought to have foreshadowed the problems this would cause. Since the decision, a dichotomy has arisen in cases of pure economic loss: with the foreseeability principle being ignored in some cases yet applied generously in others (see, for example, Smith v Eric S Bush, Spring v Guardian Assurance plc, Williams v Natural Life Health Foods Ltd, and Commissioners of Customs and Excise v Barclays Bank plc). This approach has come at the expense of long established doctrines such as that which prohibits liability for omissions and acts of third parties, and contractual privity and consideration; the significance of all of which has been diminished.

The courts, however, have justified these separate categories on public policy grounds under the ‘Anns’ and ‘Caparo’ tests: arguably to prevent what Lord Steyn has described as a litany of cases that may otherwise arise under a general test of foreseeability. This is compelling when the social capriciousness of psychiatric illness and economic loss is considered; namely, that cases involving these elements often involve a set of unique and socially complex facts which could give rise to any number of possible lines of liability. However, as noted by Nolan, regardless of the plausibility of the courts’ approach within the categories, it remains that the very existence of these categories shows a dissonance in the judicial approach to duty. These new categories, therefore, are inherently problematic and serve to highlight the courts’ failure to supply a single test.

III. THE SUITABILITY OF THE CURRENT APPROACH

This post’s final contention is that the current approach adopted by the courts is most suitable to this area of law, set out in Robinson v Chief Constable v West Yorkshire by Lord Reed. This approach maintains that duties of care should be developed incrementally by “analogy” with established principles, unless in genuinely “novel” cases in which the Caparo test should be deployed. The merits of this approach are best seen through a pluralist lens, which in rejecting the monistic approach of  corrective justice scholars such as Weinrib who seek to explain tort by reference to a single ideal (corrective justice), endorses the balancing of principle and policy by reference to a range of countervailing concerns. Each element will be dealt with in turn. Firstly, the current approach alleviates the need for new categories of duty by establishing the “universal touchstone” of principles envisioned by Lord Lloyd-Jones, rather than a single test, from which the law can be developed coherently in line with modern losses and harms. For example, the fruits of the late twentieth century expansion of duty, largely justified by policy reasoning, are already being reversed: with the exceptions to the rule against omissions being retightened and any immunity for public authorities renounced. Secondly, this has been balanced with the restricting of policy reasoning to cases which are genuinely novel. This “bottom-up” rather than “top-down” approach serves to restrain the judiciary from deploying policy rationale too readily, as shown in ABC v St George’s Healthcare NHS Trust.

Functionalist justificatory models (which aim, generally, to provide torts with a normative grounding by defending the goals which they seek to achieve)  may contend that the current approach could lead to the erosion of the compensatory aims of tort law by lending too much discretion to the courts. This is perhaps evident in Darnley v Croydon Health Services; where Lord Lloyd-Jones, who is associated with a generous approach to duty, found a duty to be present whilst Sales LJ, who has contrastingly denounced the “weaker” approach to duty extra-judicially, found the contrary in the Court of Appeal. This same concern can directed at the retention of public policy use, particularly as the courts have failed to define what constitutes a “novel” case; a point well covered by Morgan. However, both these contentions oversimplify the area. Firstly, as noted by Lord Lloyd-Jones in Darnley, any uncomfortable analogies drawn at the duty stage would be accommodated in the standard considered at the breach stage. Secondly, it is unlikely that the courts will be unable to find an applicable established principle and therefore resort to Caparo. This is evidenced by the novel James-Bowen v Commissioner of Police case, in which the policy justification of divided loyalty was indirectly harnessed from the established principle that an important duty to one group precludes a cross-cutting duty to others. As a result, the current approach can be deemed to have successfully balanced principle and policy to provide a viable solution to establishing a duty of care.

CONCLUSION

In conclusion, the search for a single test to establish a duty of care is a hopeless one. This has been shown by highlighting how defining a single test is impossible, considering how the courts have failed in doing so, and by demonstrating why the current approach to duty, which accommodates socio-legal change by balancing principle and policy rather than via a single test, is most credible. In this regard, the courts’ journey in seeking to find a single test has served to shape and mould judicial precedent to create an adequate solution after all; even if not the one initially envisioned. Going forward, however, it is vital that this relatively new solution is continuously scrutinised as new cases rise through the court system and the socio-legal landscape continues, inevitably, to evolve.

Christy O’Neil is a third-year law student at Lancaster University, who is eager to tackle the disconnect between legal academia and practice.

Dr Sur Farran is interviewed by ABC News on Customary adoptions in the Torres Strait and the Pacific. You can listen to the interview on ABC net.

DR SUE FARRAN IS A READER AT NEWCASTLE LAW SCHOOL. SUE’S RESEARCH INTEREST LIE IN THE FIELD OF HUMAN RIGHTS AND PROPERTY, ENCOMPASSING IN PARTICULAR THE RIGHTS OF WOMEN, CHILDREN AND INDIGENOUS PEOPLE, AND LAND, NATURAL RESOURCES AND INTELLECTUAL PROPERTY. 

Sean Molloy

The Court of Appeal (CoA) in Northern Ireland recently ruled that former Police Ombudsman Northern Ireland (PONI), Dr Michael Maguire had “overstepped the mark” in finding Royal Ulster Constabulary (RUC) officers committed criminal acts of collusion with loyalists who massacred six Catholic men at The Heights bar in the Co Down village in Northern Ireland in June 1994. The full judgment, which can be found here (see here for a summary) has led to a media frenzy with various contributions offering different and at times diverging interpretations of the outcome. Whilst, the Belfast Telegraph’s piece is referring to the families of those killed and is entitled “Loughinisland families’ relief as judges rule Ombudsman report stands”, the Newsletter’s coverage states that “Loughinisland ruling helps “expose fake news of collusion”. Still again, the Law firm KRW Law tweeted that “The power to make a public statement is validated and remains clear. The capacity for a Police Ombudsman to investigate and publish facts remains unambiguous.”

How can one judgment lead to such contrasting perspectives? The answer lies in the fact that as with many cases, there are narrow and broader lenses through which to view a case. Similar outcomes can be interpreted from different perspectives and particular points emphasized over others. In addition, there are often wider implications of court rulings than the direct points of law. With the above in mind, this post attempts to briefly examine the judgment from the perspectives of a number of interested parties. These are namely, the appellants- retired police officers Thomas Ronald Hawthorne and Raymond White-, the respondent- PONI; and the Loughinsland families. The purpose is to advance, as I see it, a number of narrow and broader implications of the case, the latter apparent upon a wider reading of the case history.

Background

The Police Ombudsman in Northern Ireland is an independent, impartial system for the handling of complaints about the conduct of police officers. It serves a role like that of the Independent Office for Police Complaints in England and Wales and the Police Investigations and Review Commissioner in Scotland. It differs, however in that the Police Service of Northern Ireland’s (PSNI) Historical Enquiries Team, set up to examine all murders during ‘The Troubles’, refers to PONI’s Historical Investigations Directorate any matter arising from its work which raises a concern of possible police criminality. The Directorate looks at matters in which members of the RUC (the predecessor of the PSNI and the police force in place during the conflict) may have been responsible for deaths or serious criminality in the past, and in particular between 1968 until 1998. It also receives complaints of a grave or exceptional nature from members of the public about police conduct during this period, including allegations of police involvement in murder, attempted murder, as well as conspiracy and incitement to murder. In this way, PONI is directly engaged in investigating allegations of police misconduct that are historic in nature and directly related to the conflict in Northern Ireland.

In the case of Hawthorne’s (Thomas Ronald) and White’s (Raymond) Application, the NI Court of Appeal was asked to rule on the extent to which PONI had acted outside of its powers. The appellants sought to challenge the lawfulness of a number of offending paragraphs in PONI’s public statement (PS), which suggested criminal conduct on the part of the police. A public statement is a detailed statement of finding provided at the end of an investigation to bereaved families.

By way of brief background, on 9 June 2016, the Police Ombudsman for Northern Ireland issued a public statement arising out of the second investigation of the murders at the Heights Bar, Loughinisland on 18 June 1994. The Executive Summary of the PONI’s statement said the investigation had sought to answer the families’ question: “Why has no one been held accountable for the murder of their loved ones?” The PONI’s statement read, amongst other things that:

“Let there be no doubt, the persons responsible for the atrocity at Loughinisland were those who entered the bar on this Saturday evening and indiscriminately opened fire. It is also important to recognise that despite the feelings identified in this report there have been many within the RUC and the PSNI who have worked tirelessly to bring those responsible to justice. I am grateful to those members of the public and retired police officers who assisted my enquiries. However my investigation into this area was constrained by a refusal of a number of key people to speak to my investigators.”

The appellants in the case claimed that in making determinations of potential criminal culpability in the public statement, PONI had acted ultra vires- acting beyond those powers conferred under the Police Act (NI) 1998.

Delivering the judgment, Morgan LCJ found in the appellants’ favor. It was held that the scheme of the legislation requires the Ombudsman to make determinations on whether a member of the police force may have committed a criminal offence or whether disciplinary proceedings are appropriate. The Court agreed with the appellants ‘that the legislative steer is firmly away from the Ombudsman having power to make determinations of the commission of criminal offences’ [para. 43]. The Ombudsman, in the court’s view, has no adjudicative role in respect of the outcome thereafter. Part VII of the 1998 Act does not impose any express duty on the Ombudsman to substantiate or dismiss any complaint [para. 21]. In doing so, the Court affirmed that PONI was not permitted to make determinations of criminal conduct. PONI’s remit is one of investigation not adjudication [para. 40, 43, 63].

The Narrow Reading

On a narrow reading of the case and judgment, one that limits itself to the particulars of the appeal and the court’s ruling thereon, the judgment has a number of immediate consequences. Firstly, the appellants are likely to feel vindicated of any implied or express accusations of criminal misconduct. In ruling that PONI had overstepped its mark in drawing criminal conclusions, the court was effectively ruling out any inferences that the appellants, as former police officers, were criminally liable. Secondly, the judgment directly impacts on PONI’s powers and thus on how it opts to utilize public statements. The ruling will likely serve as a reference point and benchmark that informs how PONI opts to articulate its findings going forward. Future public statements issued by PONI will, following the judgment, be mindful of attaching findings from investigative work to potential criminality. Doing so, as noted, was deemed by the court to be beyond its powers. Thirdly, the CoA’s ruling disappoints those that are currently awaiting the findings of PONI’s. The judgment removes the possibility that the PONI will make any determination akin to that of a criminal court and will likely restrict its statements to matters of fact. Fourthly, the judgment will likely have implications for other public bodies performing similar accountability and investigative roles. The court reaffirms past rulings that not only are ombudsman offices subject to judicial review (see, for example, R v Commissioner for Local Administration, ex p Croydon London Borough Council) but that courts are more than willing to rule on whether these bodies are operating intra or ultra vires (see, for example, R v Parliamentary Commissioner for Administration, ex p Balchin). The judgment will therefore serve as a further reminder that, as statutory bodies, Ombudsman offices are permitted to act only within the powers that are conferred upon them by statute.

Even on a narrow reading of the judgment, therefore, the direct impacts and implications may well extend beyond the appellants to include PONI, other public bodies and those that have or will in the future lodge complaints against the police. In this particular case, the finding in favor of the appellants obviously extend beyond a victory on a particular point of law. They equally strike out findings or at least suggestions of criminal conduct.  

Nevertheless, despite the win for the appellants, various media outlets opted to focus their attention on the positive way in which the Loughinsland families received the Court’s findings (see BBC reporting here). At first glance, this would appear somewhat surprising, particularly as the CoA undermined the PONIs findings of criminal conduct. Yet, a broader reading of the case and judgment helps to explain their enthusiasm.

The Broader Approach

To understand both the adulation of the Loughinisland families and aspects of the judgment that were favorable to PONI, it is necessary to take a broader approach to examining this case. The original Judicial Review was brought in 2016 with judgement delivered by Justice McCloskey in December 2017. Following complications relating to the role of the judge in formally representing the RUC, a new judge was appointed- Justice Keegan who found in favour of PONI in the High Court in January 2018. The appeal before the CoA was against that judgment. Part of the appellants’ original argument was that the Ombudsman should only issue a public statement when a statutory outcome was reached such as a recommendation for criminal or disciplinary proceedings. The argument advanced was that the most the Ombudsman could report on was that he did not believe that any criminal or disciplinary charges were merited.  To go further was to step outside the statutory role [para. 63]. In short, if PONIs investigations failed to uncover either of these two scenarios, there was no statutory basis for issuing a public statement. The potential implications of any ruling to this effect would no doubt be profound. Effectively, absent these narrow outcomes, victims and their families would have little information regarding serious allegations of suspected serious police misconduct.

However, this notwithstanding, the Court nevertheless refused to quash the public statement. The Court examined Section 62 is the provision at the centre of the dispute in this appeal and provides:

“The Ombudsman may, in relation to any exercise of his functions under this Part, publish a statement as to his actions, his decisions and determinations and the reasons for his decisions and determinations.”

The existence of this provision does not necessarily provide a basis in law for the use of a PS. Indeed, part of the judgment involved a consideration and ultimately a rejection of the application of various authorities on the discretion of an Ombudsman (see, for example, R(Chief Constable of West Yorkshire) v IPCC and R v Parliamentary Commissioner ex p Dyer (for a discussion of the case law see Kirkham and Allt, 2016) finding that none of these cases were sufficiently analogous to the case at hand. Instead, the refusal to quash the PS and, by implication, the upholding of the execution of the s. 62 discretion, turned on a human rights issue. In examining the role of PONI in light of article 2 ECHR obligations, the court nodded to its role as an investigative body, which could, in certain circumstances, dispense of the state’s duty to conduct article 2 compliant investigations.

Thus, the CoA judges adopted a holistic approach to statutory construction, one that required looking beyond the literal interpretation of its provisions. This included a consideration of internal and external aids, following the judgment in Pepper v. Hart. In terms of the context of the legislative scheme, for instance, the judgment noted that ‘The Patten Commission expressly recognised the importance of the Ombudsman in securing accountability and public trust in the police’ [para. 50]. Like other mechanisms, such as coroners’ inquests, is the court found it a logical consequence of an investigative body that some approach to articulating the findings of the investigation is necessary.

The court determined that those involved in scrutinizing the activities of public bodies, ought to be able to articulate the outcomes of their investigation. In the present case, the inability to convey to both the families and wider public the outcomes of the investigation would likely lessen public confidence in the accountability of security services. In both refusing to quash the report and in holding that it was appropriate for the former Police Ombudsman to “acknowledge that the matters uncovered by him were very largely what the families claimed constituted collusive behaviour”, the Court confirms that public statements are a necessary and inevitable consequence of the investigative role or PONI.

The families positive endorsement of the judgment is, therefore, a reaction to the fact that the court determined it unnecessary to quash the report and in doing so upheld the findings of PONI. To understand the significance of this aspect of the judgment, it is useful to contrast one of the offending paragraphs in the public statement with another that was not deemed offensive:

(9.2) “police were aware of plans by the UVF, UDA and Ulster Resistance to import a significant consignment of weaponry to Northern Ireland in mid to late 1987 and knew about the arrival of the assault rifles, semiautomatic handguns, grenades and other weapons forming the shipment shortly after it was landed in Northern Ireland”.

(9.9) I have seen sufficient information to be satisfied that corrupt relationships existed between members of the Security Forces in South Down and the UVF Unit, to whom police attributed the murders at Loughinisland. The failure by police to investigate the veracity of intelligence that those responsible had been ‘warned’ by a police officer of their imminent arrest is inexcusable.

The CoA, in refusing to quash PONI’s public statement, held that statements such as those in para. 9.2 of the PS amounted to a narrative of events [para. 63], the expression of which is wholly in line with the purpose of an investigating body. By contrast, section 9.9, according to the Court, “were not in our view decisions or determinations to which section 62 applied and overstepped the mark by amounting to findings of criminal offences by members of the police force” [para. 63]. Examining these respective paragraphs in tandem illuminates once again, the legal point in question- whether PONI has the scope to make determinations of criminal offences. At the same time, reading both statements also points to what was not in question and what, upon refusing to quash the report, the court upheld.

Both statements demonstrate the existence, in the view of PONI, of corruption but differ in the expression of potential criminal culpability attached to them. Whereas the former was deemed to overstep the mark, the perceived existence of corruption remained untouched. Indeed, in supporting this claim, it is noteworthy that the court outlined that the Ombudsman acknowledge that the matters uncovered by him were very largely what the families claimed constituted collusive behaviour. Clearly, what the court was examining was the extent to which PONI could make determinations of criminal conduct based on findings of collusion, not whether collusion existed.

Thus, for the Loughinisland families, the central issue was that the public statement- which held that corruption was a feature of the deaths of their loved ones- was left untouched. Unless the families have a particular interest over questions of intra or ultra vires tests or the mechanics of statutory interpretation, the contestation over the specific remit of PONI’s powers is likely to be of little moment to the families. What is instead significant is that the report in question remains, in the absence of a remedy to quash, the primary record of this case. The findings of collusion remain unchanged.

In addition, there are also wider implications for PONI’s work. The judgment appears to affirm the legality of issuing public statements under the discretion afforded by s. 62. Crucially, this discretion can be used in such a way as to provide, in the interests of public trust and confidence, information to those that have challenged police conduct. This is an important ruling in the context of PONI’s ongoing investigations and one that will no doubt be widely received by those with complaints currently under investigation.

Summing Up

As with any case, whether one party considers a judgment to be a success or failure, will depend not only on the outcome but also their interpretation and reading of it. On a narrow reading, PONI failed on the vires test argument, while the appellants were successful. The interpretation of the CoA was clear in deciding that the PONI had overstepped his mark. While there will likely be differences of opinion regarding the merit of that ruling (for instance, how can PONI provide compensation if it cannot make determinations?), it is nevertheless the case that the appellants won the day on this specific legal point. Inasmuch as the PONI’s offending paragraphs could be interpreted to target individuals, these persons are likely to feel vindicated by the ruling. Moreover, in determining that PONI possesses no adjudicative powers, an important legal principle of innocent until proven guilty must apply.

At the same time, judgments must also be analysed from a broader perspective and in light of a case history. On such a reading, the judgment merely curtails how PONI is able to frame and convey its findings. It does not affect the scope of its investigative work nor how it discharges its statutory duties. There is now a common law ruling on the lawfulness of the issuing of a public statement, which views their function as a corollary to the investigative responsibilities of the Ombudsman. There may be future discussion on the need to extend its scope to including adjudicative powers, but that is a matter for another time. Understood in this way, the CoA’s ruling will serve as a useful framework with which to assist in how PONI opts to articulate the outcomes of its investigative work.

In terms of the overall context of the case, the vires issue was a relatively insignificant one. The objective, from the outset, was to quash the report. In this sense, the decision of the court to affirm rather than remove from record the public statement, vindicates PONI’s findings, albeit with the proviso that any future statements remain within the scope of its powers alongside the always-present common law requirement of procedural fairness. But the ability to continue to utilize PS will be of immense benefit to other families awaiting PONI reports.

For the Loughinisland families, it is not difficult to understand why the judgment was welcomed. In failing to quash the report, it remains the primary record of the events that surrounded the murder of their loved ones. While some will celebrate the vires issue, no amount of spin can remove the significance of the Court’s decision not to do so. And yet, still, the families will no doubt feel bitter sweet, particularly as justice has yet to be served in this case (See Alison Morris’s article in the Irish News).

At a more general level, this case serves as a reminder for lawyers that the impacts of the outcome of judicial reviews often stretch far beyond the particular and technical legal aspects of a case. The case equally illuminates that the analysis of these particular points of law must also be examined in light of the wider case history, including the initial and overall objectives of the parties.