{"id":71,"date":"2020-07-29T10:37:14","date_gmt":"2020-07-29T09:37:14","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelrn\/?p=71"},"modified":"2020-07-29T10:43:38","modified_gmt":"2020-07-29T09:43:38","slug":"at-least-six-impossible-things-can-be-thought-of-before-breakfast-is-a-single-test-for-a-duty-of-care-one-of-them","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelrn\/2020\/07\/29\/at-least-six-impossible-things-can-be-thought-of-before-breakfast-is-a-single-test-for-a-duty-of-care-one-of-them\/","title":{"rendered":"AT LEAST SIX IMPOSSIBLE THINGS CAN BE THOUGHT OF BEFORE BREAKFAST: IS A SINGLE TEST FOR A DUTY OF CARE ONE OF THEM?"},"content":{"rendered":"\n

INTRODUCTION<\/strong><\/p>\n\n\n\n

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<\/em>, 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\u2019s failure to carve out a single test will be considered. Lastly, it will be shown how the courts\u2019 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\u2019 examination of the duty of care to date (see, for example, Lord Lloyd-Jones\u2019 comments at [15]<\/strong> in Darnley v Croydon Health Services NHS Trust<\/em>). 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.<\/p>\n\n\n\n

I. THE\nIMPOSSIBILITY OF A SINGLE TEST<\/strong><\/p>\n\n\n\n

Firstly, establishing a single test for whether a duty of care exists is\nimpossible due to the nature of both negligence and society. Unlike most other\ntorts, negligence does not protect a particular interest and significantly\noverlaps with other areas of law. This means that an infinite number of\npossible causes of action exist in negligence, all of which a single, \u201cspecial\u201d\ntest could not accommodate without infringing how other interests are protected,\nas noted by Lord Phillips in Gregg v Scott<\/em>. Establishing a single test\nis also impossible due to the evolving nature of society. This is significant\nas duties specify requirements as to the way in which people engage in conduct\nby capturing social \u201csentiment\u201d; an idea that is largely uncontested by\ncorrective justice and civil recourse theorists such as Cane<\/a>, Goldberg and\nZipurksy<\/a>. However not only is there an infinite variety of relationships between\nindividuals, but the norms of such relationships are constantly evolving. This\nmakes it impossible to generate a single, perennial test for duty which will\napply to \u201cevery situation\u201d, as envisioned by Lord Atkin in Donoghue v\nStevenson<\/em>.<\/p>\n\n\n\n

The opinion to the contrary, however, merits consideration. Buckland<\/a>, for example,\ncontends that the concept of duty is redundant and should be abandoned. Such a\nview is compelling through the \u201cfault-based\u201d lens of negligence liability\nespoused in Fairchild v Glenhaven Funeral Services Ltd<\/em>, which maintains\nthat an individual only has a duty to pay damages to those upon whom they\ninflict loss. On this basis, duty is unnecessary as it does little to prove\nfault. However Buckland<\/a> overlooks the\nfact that the courts determine liability by considering what \u201creasonable\u201d steps\ncould have been taken to prevent a harm within<\/em> the duty defined. The\n\u201cwrong-based\u201d view of liability, advocated by Goldberg and\nZipursky<\/a>, is consequently more compelling as by leaning in a deontological\ndirection, it recognises duty as ex ante<\/em> as is custom in the courts. As\nduty remains integral to negligence, the tort will continue to be exposed to\nsocietal change. As a result, it is clear that the nature of negligence and\nsociety means that establishing a single test for duty is impossible. <\/p>\n\n\n\n

II. THE COURTS\u2019\nFAILURE TO ESTABLISH A SINGLE TEST<\/strong><\/p>\n\n\n\n

Secondly, the impossibility of a single test for duty is reflected in\nthe judiciary\u2019s failure to establish one. The most commonly applied gateway to\nduty has been the Caparo Industries plc v Dickman <\/em>tripartite test; which\nrequires the foreseeability of harm, sufficient proximity of relationship, and\nthat it is fair, just and reasonable to impose a duty. Although other tests have\nincluded owing a duty where one\u2019s act or omission may foreseeably injure a\nneighbour, where an individual assumes a responsibility to another, and within\nthe scope of the neighbour principle provided no opposing policy consideration\nexists (see, for example, Donoghue v Stevenson, Hedley Byrne & Co Ltd v\nHeller & Partners Ltd, and Anns v Merton LBC<\/em>). However, as pointed out\nby Nolan<\/a>, these tests\nhave proven unable to accommodate \u201cnew\u201d types of harm such as psychiatric\nillness and economic loss, for which the courts have been forced to develop new\ncategories.  Each will be dealt with in turn.<\/p>\n\n\n\n

Firstly, due to difficulties associated with the foreseeability of\npsychiatric harm given its idiosyncratic nature, the courts have forged\nseparate tests for primary and secondary victims of such harm. These tests are,\nhowever, fail to provide a suitable response to social complexity.  For example, the test for secondary victims,\nwho witness but do not participate in a given event, requires \u201cclose ties of\nlove and affection\u201d between the claimant and the injured victim following Alcock\nv Chief Constable of South Yorkshire<\/em>. Yet, the Law Commission<\/a> has been quick\nto highlight how this does not capture modern society in which the family unit\ntypically includes grandparents and cohabitants, who are generally considered\nnot to satisfy this test. Similar criticism can be directed at the Alcock <\/em>requirement\nthat the claimant viewed the event with their \u201cown unaided senses\u201d. Whilst the\ncase of Alcock <\/em>concerned when liability might arise for incidents that\npeople might apprehend through the medium of television, the content of which\nwas restrained by the Broadcasting Code, the modern spectator can view events\nas though present through a miscellany of social media platforms untethered by\nsuch codes (see the Broadcasting Act 1990).  Such considerations cast doubt over this\ncategory, particularly as new psychiatric illnesses emerge such as occupational\nstress<\/a> and nomophobia<\/a>.<\/p>\n\n\n\n

Secondly, the courts have developed a category for economic loss. This\nis again due to difficulties in relation to the foreseeability requirement,\ngiven that financial loss is often a matter of \u201cpure chance\u201d, as noted by Harvey<\/a>. In cases\nconcerning misstatements and services which cause financial loss not consequent\non physical damage, duty has come to hinge instead on whether a responsibility\nhas been assumed via the \u2018Hedley\nByrne v Heller\u2019<\/em> exception. The fact that the judges in Hedley Byrne<\/em>\ndisagreed over whether this could be applied alongside tests of foreseeability\nought to have foreshadowed the problems this would cause. Since the decision, a\ndichotomy has arisen in cases of pure<\/em> economic loss: with the\nforeseeability principle being ignored in some cases yet applied generously in\nothers (see, for example, Smith v Eric S Bush, Spring v Guardian Assurance plc,\nWilliams v Natural Life Health Foods Ltd<\/em>, and Commissioners of Customs\nand Excise v Barclays Bank plc<\/em>).\nThis approach has come at the expense of long established doctrines<\/a> such as that which prohibits liability\nfor omissions and acts of third parties, and contractual privity and\nconsideration; the significance of all of which has been diminished.<\/p>\n\n\n\n

The courts, however, have justified these separate categories on public\npolicy grounds under the \u2018Anns<\/em>\u2019 and \u2018Caparo<\/em>\u2019 tests: arguably to\nprevent what Lord Steyn<\/a> has described\nas a litany of cases that may otherwise arise under a general test of\nforeseeability. This is compelling when the social capriciousness of psychiatric\nillness and economic loss is considered; namely, that cases involving these\nelements often involve a set of unique and socially complex facts which could\ngive rise to any number of possible lines of liability. However, as noted by Nolan<\/a>, regardless of\nthe plausibility of the courts\u2019 approach within<\/em> the categories, it\nremains that the very existence of these categories shows a dissonance in the\njudicial approach to duty. These new categories, therefore, are inherently\nproblematic and serve to highlight the courts\u2019 failure to supply a single test.\n<\/p>\n\n\n\n

III. THE\nSUITABILITY OF THE CURRENT APPROACH<\/strong><\/p>\n\n\n\n

This post\u2019s final contention is that the current approach adopted by the\ncourts is most suitable to this area of law, set out in Robinson v Chief\nConstable v West Yorkshire<\/em> by Lord Reed. This approach maintains that\nduties of care should be developed incrementally by \u201canalogy\u201d with established\nprinciples, unless in genuinely \u201cnovel\u201d cases in which the Caparo <\/em>test\nshould be deployed. The merits of this approach are best seen through a pluralist lens<\/a>, which in\nrejecting the monistic approach of  corrective justice scholars such as Weinrib<\/a> who seek to explain tort by reference to a single\nideal (corrective justice), endorses the balancing of principle and policy by\nreference to a range of countervailing concerns. Each element will be dealt\nwith in turn. Firstly, the current approach alleviates the need for new\ncategories of duty by establishing the \u201cuniversal touchstone\u201d of principles\nenvisioned by Lord\nLloyd-Jones<\/a>, rather than a single test, from which the law can be developed\ncoherently in line with modern losses and harms. For example, the fruits of the\nlate twentieth century expansion of duty, largely justified by policy\nreasoning, are already being reversed: with the exceptions to the rule against\nomissions being retightened<\/a> and any\nimmunity for public authorities renounced<\/a>. Secondly,\nthis has been balanced with the restricting of policy reasoning to cases which\nare genuinely novel. This \u201cbottom-up\u201d rather than \u201ctop-down\u201d approach serves to\nrestrain the judiciary from deploying policy rationale too readily, as shown in\nABC v St George\u2019s Healthcare NHS Trust<\/em>.<\/p>\n\n\n\n

Functionalist justificatory models<\/a> (which aim, generally, to\nprovide torts with a normative grounding by defending the goals which they seek\nto achieve)  may contend that the current\napproach could lead to the erosion of the compensatory aims of tort law by\nlending too much discretion to the courts. This is perhaps evident in Darnley\nv Croydon Health Services;<\/em> where Lord Lloyd-Jones, who is associated with a\ngenerous approach to duty, found a duty to be present whilst Sales LJ, who has\ncontrastingly denounced the \u201cweaker\u201d approach to duty extra-judicially<\/a>, found the contrary in the\nCourt of Appeal. This same concern can directed at the retention of public\npolicy use, particularly as the courts have failed to define what constitutes a\n\u201cnovel\u201d case; a point well covered by Morgan<\/a>. However, both these contentions oversimplify\nthe area. Firstly, as noted by Lord Lloyd-Jones in Darnley,<\/em> any\nuncomfortable analogies drawn at the duty stage would be accommodated in the\nstandard considered at the breach stage. Secondly, it is unlikely that the\ncourts will be unable to find an applicable established principle and therefore\nresort to Caparo<\/em>. This is evidenced by the novel James-Bowen v\nCommissioner of Police <\/em>case, in which the policy justification of divided\nloyalty was indirectly harnessed from the established principle that an\nimportant duty to one group precludes a cross-cutting duty to others. As a\nresult, the current approach can be deemed to have successfully balanced\nprinciple and policy to provide a viable solution to establishing a duty of\ncare.<\/p>\n\n\n\n

CONCLUSION<\/strong><\/p>\n\n\n\n

In conclusion, the search for a single test to establish a duty of care\nis a hopeless one. This has been shown by highlighting how defining a single\ntest is impossible, considering how the courts have failed in doing so, and by\ndemonstrating why the current approach to duty, which accommodates socio-legal\nchange by balancing principle and policy rather than via a single test, is most\ncredible. In this regard, the courts\u2019 journey in seeking to find a single test\nhas served to shape and mould judicial precedent to create an adequate solution\nafter all; even if not the one initially envisioned. Going forward, however, it\nis vital that this relatively new solution is continuously scrutinised as new\ncases rise through the court system and the socio-legal landscape continues,\ninevitably, to evolve.<\/p>\n\n\n\n

Christy O’Neil is a third-year law student at Lancaster University, who is eager to tackle the disconnect between legal academia and practice.<\/h3>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3730,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-71","post","type-post","status-publish","format-standard","hentry","category-uncategorised"],"_links":{"self":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/71","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/users\/3730"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/comments?post=71"}],"version-history":[{"count":2,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/71\/revisions"}],"predecessor-version":[{"id":73,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/71\/revisions\/73"}],"wp:attachment":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/media?parent=71"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/categories?post=71"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/tags?post=71"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}