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.

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They can span from public interest to the functions of a public body and more. Certain policies are clear in their benefit to the public, such as there is no right to claim for negligence when the claimant was participating in illegal activity (as seen in Vellino)iv or actions cannot be taken against primary victims of accidents by family involved in the accident (as seen in Greatorex V Greatorex).v However, there are some cases where judges have to decide whether the benefits of applying a policy outweighs the damage caused to the claimants and in these certain cases the decisions seem to be questionable and at times simply unfair. Many decisions which have had policy as a main reason to deny the claim have come from suits against public bodies. There have been many cases which placed the police under particular scrutiny. In the case of Hillvi it was decided that that it was a core principle of public policy that, in the absence of special circumstances, the police owed no duty of care to protect individuals from harm caused by criminals. Therefore their failure to establish that Peter Sutcliffe was the ‘Yorkshire Ripper’ before Hill’s daughter was murdered, even though they had questioned him previously, was insufficient reason to grant a duty of care for Hill’s daughter. Moreover, in the cases of Van Collevii and Smithviii the victims were at a specific risk and yet still did not manage to establish a duty of care. Both were compared to Osman V United kingdomix where the liability was given but at a very high threshold. It was said that liability could only arise when ‘authorities knew or ought to have known…of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’.x Van Colle failed on the fact that the threats he was receiving did not specifically threaten his life and the damage caused to his property was not attributed to his murderer. However, Smith failed despite having seemingly fulfilled this criterion. In this case Smith had been receiving threats from his former lover by text, telephone and internet messages, some even threatening his life. Smith took this evidence to the police and told them of the violent history of the accused despite which little was done to help. Smith was subsequently attacked by his former lover. It was written that ‘We must be careful not to allow ourselves to be persuaded by the shortcomings of the police in individual cases that undermine that principle [the ‘core principle’ of Hill]’.xi However, this seems extremely unsympathetic and much too rigid.

Gordon Anthony writes ‘the judgment appears to leave no scope for protection of the individual within the framework of negligence’.xii If judges are unwilling to impose duty onto the police because of policy it seems much too difficult to win claims against the police in national courts and, as in Osman, claimants will have to go to the European Court of Human Rights. Being forced to take this route seems excessively onerous and unfair on claimants. This immunity to liability may also allow the standard of performance by the police to drop and see police negligence go unpunished. Although the above cases appear to demonstrate injustice on behalf of the claimants, judges have good reason to deny imposing duty of care onto the police. It was explained in Hill that imposing a duty of care onto the police for every failure would encourage both ‘defensive’ policing and would involve time and resources from the police, which would be better for society if used in the functioning of the police. Defensive policing would be a particularly important issue as it would affect the time the police would hold suspects for questioning and this could affect the balance between civil liberties and law enforcement. However, Cowan and Steele make a valid point when writing ‘An immediate problem with this argument… that any litigation takes up police time which could be used in some “more productive” way, is that there is no reason why it should apply to the police more than to any other body involved in the pursuit either of public duty, or of any generally beneficial activity’.xiii The discouragement of defensive policing coincides with the discouragement of defensive medicine, where doctors would be overly cautious and commit unnecessary resource to avoiding liability. Usually in cases involving negligence from medical professionals judges will look at the breach of duty as a professional duty is implied. However, there are a certain types of cases where judges have denied imposing duty of care due to doctors on terms of policy. An example of such cases being that of unintended children.

In McFarlane V Tayside Health Boardxiv it was established that the birth of an unwanted child would only be recoverable for the pain and suffering that the mother endured and claimants couldn’t claim for the upbringing of the child. This was on the moral policy set forth by Lord Millett, who said ‘the law must take the birth of a normal, healthy baby to be a blessing, not a detriment’.xv The courts were also concerned about the NHS spending compensating parents with a healthy baby. However, this policy was further used in the Parkinsonxvi case, where the baby was born with disabilities, and then in the case of Reesxvii, where the parent was disabled. In both cases judges recognised that there had been legal wrong as the parents lost their right to limit their family size and consequently rewarded both claimants extra damages but still ruling against payment toward the upbringing of the child. Here judges pointed out a clear legal wrong but still did not fully reward claimants because of policy reasons, showing a clear but questionable restriction. Claims against other public bodies have failed and left claimants arguably disenfranchised as well. One of these cases was Mitchell V Glasgow City Council.xviii Here there had been a continuing problem with a particularly hostile neighbour. Actions had been taken against this neighbour and he was even summoned to see the council. After a meeting with the council, where he had lost his temper and became abusive, the neighbour fatally assaulted the claimant’s husband. Mitchell claimed against the council for not warning them that there was at risk of any danger. The claim was dismissed at the House of Lords, who stated that to impose a duty to warn was much too severe impose on a landlord and it would serve as a deterrent for social landlords from intervening to reduce the incidence of antisocial behaviour. However, this seems a little exaggerated. To impose a duty to warn to a bystander would understandably be too much, but in the case like this it would seem to be reasonable. Surely a landlord should have some responsibility for the safety of those living within an area where there had been claims of anti-social behaviour.

To ask a landlord to ensure the safety of his tenants against all contingencies seems unreasonable. However where another tenant poses a threat, especially when that threat is one that has been investigated by the landlord at the tenant’s request. an appropriate warning might be reasonably expected. Another case would be Stovin V Wise where a road accident had taken place at a particularly dangerous junction, which the local authority has resolved to improve but had not yet done so.xix The courts dismissed this case saying that the authority had the statutory power to improve the road but not the duty to, but this begs the question: if they do not have the duty to set out improvements for dangerous roads who does? Judges are reluctant to impose liability on public bodies as it may result in expenditure defending law suits as opposed to expenditure on public services and therefore not in the public’s interest. There is also a ‘flood gates’ theory that suggests that if liability was imposed on public bodies more often more and more people would claim against them, hindering their funding and therefore ability to carry out services for the public. This shows that judges are having to find the line between justice for individuals or the interests of the public.

A case highlighting this dilemma and where there has been a clear injustice is that of Jain.xx Here a nursing home had been shut down by the regulatory authority. The Jains were successful in appealing against the action to close their business but by this time they were facing dire financial ruin and so could not recover their business. Here the courts denied that the authority had a duty of care to nursing home owners when executing a statutory power, even though this power directly affected nursing home owners.

This meant that although this power was executed negligently, as the information they based the action against the home was both irrelevant and prejudiced, there was no compensation for the unjustified closure of their nursing home. What is shocking is that one of the judges gave the Jains leave to appeal to the House of Lords on the basis that there was ‘a serious injustice here which deserved a remedy’xxi and yet ignored this injustice in favour of policy. The policy reasoning here was to protect the vulnerable, elderly residents at the home who might have been at risk through poor practices. In fact as there was no such risk, but possible harm done to the residents (through having to move and find a new place to live).It is arguable that the authority had been negligent failing to investigate properly and the power needn’t have been executed.

In conclusion it seems that often demonstrating duty of care is the biggest hurdle when it comes to proving a case of negligence. Moreover establishing what is ‘fair, just and reasonable’ as dictated by policy is the biggest hurdle for establishing a duty of care. Although the cases highlighted show injustice in terms of the individuals one must always realise that there are reasons why policy is considered and that judges are thinking of the welfare of the whole of society as well as the rights of the individual. With this said the cases have pointed out that sometimes judges do not just ignore potential benefit to the individual but indeed they seem to overlook the damage suffered by the individual. Ultimately it leaves a question whether or not the scope of ‘just, fair and reasonable’ should be broaden at the risk of creating wider liability in the interests of creating a more just and caring society.

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