The Role of Comprehensive Test for a Duty of Care

Duty of care refers to the circumstances and relationships that the law recognizes as giving rise to a legal duty to take care. This essay will explain the two ways in which the existence of a duty of care is established under the case of Caparo Industries v Dickman (1990) as well as outlining the historic development of the three-part test used and the way in which it has been considered in case law. This essay will also, further critically discuss the reasons why a comprehensive test for a duty of care has proven elusive for the courts.

An inability to take the necessary care can bring about the respondent being obligated to pay harms to a party who is harmed or endures misfortune because of their break of obligation of care. In this way, it is vital for the claimant to establish that the respondent owed them an obligation of care. The presence of an obligation of care relies upon the kind of misfortune and distinctive legitimate tests apply to different losses. In the Caparo case, Lord Bridge uses a three stage test for imposing a duty of care, under this test the claimant must establish first that harm was reasonably foreseeable, secondly that there was a relationship of proximity and lastly that it is fair, just and reasonable to impose a duty of care. 

The first two stages of the Caparo test derive from the original neighbour test; whereas fair, just and reasonable relates to the policy considerations under the Anns test. However, there is a differing factor between the two tests, under the Caparo test, the claimant must out forward policy reasons to impose liability, whereas, the Anns test requires that liability would arise once the claimant had established reasonable foresight and proximity and the defendant also must demonstrate policy factors to negate liability. This is one of the components in Caparo, however later caselaw clarifies that 'connections of closeness' are those where it is 'fair just and reasonable' to hold that an obligation exists. 

In Stovin v Wise [1996] A local authority knew that a bank of land was deterring the view at an junction where three mishaps had happened in the past twelve years. The authority had talked about the issue with the land proprietors and had consented to complete the necessary work. However, nothing was had been taken care of by the time the claimant was harmed in a mishap. The claimant claimed damages from the driver of the vehicle as well as from the neighborhood authority. The issue was “whether a local authority could be found to owe a common law duty of care if it had not complied with a public law obligation.” 

The house of Lords accepted the appeal from the local authorities. Although the ‘Highways Act 1980, s79’ allows a local authority the power to remove obstructions, the statutory power did not give the rise to a common law duty of care.; regardless of the work being carried or not, a public law duty could not give rise to a common law claim for non-performance. If this was the case, an inadmissible weight would be put on the neighborhood authority's budget in regard of being allowed to practice its caution, particularly since it was already a requirement for road users to carry insurance to protect themselves. 

It would not be air, just or reasonable to force an obligation in these conditions. Under Caparo’s test finding a duty of care rests heavily on questions of judgement, such as, reasonableness, proximity, fairness and foreseeability. However, there are little indication on how it would be decided if something would account as a duty situation. Caparo itself expressed that a general test is unreachable or unrealistic, given the variety and unpredictability of circumstances where obligations may exist. From this viewpoint, the adaptability of the 'test' is its strength. In the case of Robinson v Chief Constable of West Yorkshire it clarified the way in which Caparo should be read.

Lord Reed affirmed that “the default approach from Caparo should be to assess whether a duty exists by looking at previous authority and establishing duties incrementally and by analogy. It is this second approach in Caparo, not the three-stage test, that takes precedence. Only use the three-stage test in genuinely novel situations and only after referring to existing duties or authorities to avoid inconsistencies or unneeded distinctions .” (Carter M, 2020)

In Robinson v Chief Constable of West Yorkshire, the litigant was an old woman who was knocked to the ground during an attempted arrest of a street pharmacist by the police. As a result, the appellant endured personal injuries, therefore, made a case against the respondent. The recorder at first acknowledged that the police had been careless in carrying out their obligations. However, the precedent set by Hill v Chief Constable of West Yorkshire blocked any effective cases in carelessness against the police for harm caused over the span of arresting a suspect. The Court of Appeal agreed that there were no obligation of care owed and no break. 

All five judges in the Supreme Court permitted the appeal. In doing so, Lord Reed set out on an intensive examination of the obligation of care standard. In particular, he looked to dispel the conviction that the presence of an obligation ought to consistently rely upon applying the predictable methodology set by Lord Bridge in Caparo. Lord Reed explained that Lord Bridge had not planned for his inquiries to turn into a test that ought to be utilised for each case before a court. Despite what might be expected, the right methodology is to distinguish and contrast novel circumstances and any settled points of reference and in this manner take into consideration the law to develop ‘incrementally and by analogy with established authorities’. Moreover, a court must balance explanations behind or against the burden of obligation so as to decide if finding an obligation to exist would be reasonable and just.

This exercise in careful control has all the earmarks of being an endeavour by Lord Reed to hold strategy reasons as significant in choosing whether an obligation is owed. In summary, Lord Reed implied established duty situations ought to be chosen as per past case law and that novel circumstances be decided as per their realities and having thought about comparative cases all through the area of law.