Evaluation of Duty of Care
“Fair, Just and Reasonable” Test (Caparo):
This is the most subjective part of the test for duty of care, relying on public policy.
Floodgates: Courts may deny a duty to prevent a surge of claims, as in Alcock v CC of West Yorkshire.
Deterrence: A duty is more likely to be imposed if it encourages safer behaviour, as in Smolden v Whitworth & Nolan.
Policy & Public Services: A duty may be denied to public bodies to allow them to function without fear of litigation (Hill v CC West Yorkshire), but this is not an immunity from a duty to avoid causing foreseeable harm (Robinson v CC West Yorkshire).
Evaluation of Breach of Duty
bjective standard of care
Objective Standard of Care:
Fairness: It’s fair as it sets a clear, universal standard of what’s expected.
Unfairness: It can be unfair to those without the skill or experience of the “reasonable person,” like the learner driver in Nettleship v Weston.
eval - breach of duy : professional standard
Bolam Test: This test allows professionals to set their own standard of care, which can be uncertain for claimants.
Montgomery v Lanarkshire Health Board (2015): This case reformed the standard for doctors, making it fairer to claimants by requiring doctors to inform patients of material risks.
Eval Breach of duty: Policy and risk factors
Justice: The standard of care is adjusted for risk factors. It’s raised for a vulnerable claimant (Paris v Stepney) or for very serious harm, even if the risk is low.
Fairness: The standard can be lowered if the cost of precautions is high or if a socially beneficial activity would be discouraged (Latimer v AEC).
Eval - damage - factual causation
Justice: This test generally provides justice by ensuring a defendant’s action directly caused the claimant’s harm.
Uncertainty: It can fail to provide compensation where there are multiple possible causes, as in Wilsher v Essex AHA. A new approach in asbestos cases (Fairchild v Glenhaven) helped claimants but created an exception to the general rule.
Eval - damages - remoteness
Fairness: The defendant is only liable for damage that is reasonably foreseeable (The Wagon Mound (No.1)), which is a fair limitation.
Uncertainty: The courts can be inconsistent when deciding if the “type” of harm was foreseeable, as seen in the contrasting outcomes of Hughes v Lord Advocate and Doughty v Turner Asbestos.
Eval - damage - intervening events
Uncertainty: The law is inconsistent here. The approach taken in Baker v Willoughby (liability continues) differs from that in Jobling v Associated Dairies (liability ends), making outcomes difficult to predict.
eval - duty of care - incremental approac
Pros (Benefits)
Certainty and Predictability: It promotes a stable legal framework by relying on established categories of negligence. This makes it easier for lawyers to advise clients and for courts to maintain a coherent body of law.
Judicial Restraint: It prevents judges from taking “giant steps” in creating new areas of liability, which is seen as a role for Parliament rather than the judiciary.
Coherence: It helps to avoid the creation of random or arbitrary distinctions by ensuring that any new duty of care is developed by analogy with existing ones.
Cons (Drawbacks)
Inflexibility: The reliance on existing categories can make the law inflexible and slow to adapt to new situations where a duty of care should arguably exist.
Uncertainty in “Novel” Cases: While the approach is meant to promote certainty, it can still lead to unpredictable outcomes in “novel” cases where there is no clear precedent. The final decision often depends on the subjective application of the “fair, just and reasonable” test.
Artificial Distinctions: The need to reason by analogy can sometimes lead to artificial or arbitrary distinctions between similar cases, which can undermine the principle of justice.
General eval points
ault-Based System:
The need to prove fault creates problems of cost and delay for the claimant.
It also requires lawyers and evidence, which can lead to confrontation.
Judicial Law-Making:
The development of negligence law by judges (judicial precedent) is criticized because judges are unelected and may lack the technical expertise to make decisions on complex policy issues (Donoghue v Stevenson).
This can lead to judges being too cautious and reluctant to take a “giant step” to develop a new duty of care (ABC v St George’s NHS Trust (2017)).
However, it allows the law to be flexible and adapt to changing social standards, as seen in Montgomery v Lanarkshire Health Board (2015), which reformed the Bolam test.
