To what extent have judicial concerns about public policy restricted the circumstances in which a duty of care can be owed?
“Policy reasoning has been a central, perhaps the central, characteristic of the judicial development of tort law.” (Jonathan Morgan ‘Policy reasoning in tort law: the courts, the Law Commission and the critics’ (2009) 125 LQR 215) To what extent have judicial concerns about public policy restricted the circumstances in which a duty of care can be owed? Are there cases of which it might be said that such restrictions have unnecessarily disenfranchised claimants? Discuss with reference to case law and academic commentary.
The tort of negligence is the most widely used in law and therefore arguably the most important. The scope of negligence covers such a range of factual situations that establishing a set of rules for finding liability has proved extremely difficult for judges. To establish negligence the claimant must prove that the defendant firstly owed the claimant a duty of care, that the duty was breached and that damage occurred due to the breach. This may seem straight forward but problems arise in establishing that each one of these factors applies. The first and often most difficult of these areas is establishing a duty of care.
The modern method of finding duty of care comes from the criteria established in the Caparo case.i The criteria dictates that the damage be foreseeable, there must be sufficient proximity in the relationship between parties and that it must be ‘fair, reasonable and just’ to impose a duty. It is in the third of these criteria where issues with policy would arise. The importance of policy in decisions of cases of negligence is commented on by Denning in Lamb V Camden where he said ‘ultimately it is a question of policy for the judges to decide’ii However, this did receive criticism, Beever describing this statement as ‘extraordinary’.iii
There are many policies which can persuade a judge not impose duty of care onto a defendant. They can span from public interest to the functions of a public body and more. Certain
The tort of negligence is the most widely used in law and therefore arguably the most important. The scope of negligence covers such a range of factual situations that establishing a set of rules for finding liability has proved extremely difficult for judges. To establish negligence the claimant must prove that the defendant firstly owed the claimant a duty of care, that the duty was breached and that damage occurred due to the breach. This may seem straight forward but problems arise in establishing that each one of these factors applies. The first and often most difficult of these areas is establishing a duty of care.
The modern method of finding duty of care comes from the criteria established in the Caparo case.i The criteria dictates that the damage be foreseeable, there must be sufficient proximity in the relationship between parties and that it must be ‘fair, reasonable and just’ to impose a duty. It is in the third of these criteria where issues with policy would arise. The importance of policy in decisions of cases of negligence is commented on by Denning in Lamb V Camden where he said ‘ultimately it is a question of policy for the judges to decide’ii However, this did receive criticism, Beever describing this statement as ‘extraordinary’.iii
There are many policies which can persuade a judge not impose duty of care onto a defendant. They can span from public interest to the functions of a public body and more. Certain