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Tort law is the most recent branch of private law to have developed and has been subject to rapid change during its short life. There has been some controversy as to the way in which the duty of care principle has been established, and the question raises complex issue to do with the relationship between policy and principle.
This articles raises complex questions regarding the relationship between policy and principle, to the extent that the law should seek to regulate or deter dangerous behaviour, and of the scope of neighbours to whom one's duty of care should extend
This essay will begin by outlining the three negligence tests that have been used by the courts, and consider the role of policy and the argument that different negligence tests might be appropriate in different areas of tort law. It will also be argued that the current approach of Courts is highly flawed and that they may develop the test of a duty of care differently in future cases following the Compensation Act 2006 and the desire not to create unsustainable levels of tort liability. In particular, reference will be made to the different tests involved in cases of medical negligence and pure economic loss. This essay will conclude that the current approach of the courts in establishing whether to find a duty of care is to develop within certain fact-specific patterns, and that this method is much more reliant on the plethora of case law already in existence than the precise formulation of the legal test.
First Steps: Donoghue v Stevenson to Anns v Merton LBC
The foundational case in tort law is of course Donoghue v Stevenson where it was held that individuals might owe a duty of care in respect of their neighbors not to cause harm where that harm might be reasonably foreseeable. At the outset, it is clear that the courts developed an expansive concept of the duty of care principle; they did not wish to place undue restrictions on the ability of the courts to impose liability for negligence where damage was found to have occurred. Pertinently, Lord Macmillan stated that the ‘categories of negligence are likely never to be closed.’ The modern law of tort and the development of the three tests below can be deemed to have begun following the rejection of the high-water mark of tort liability in Anns v Merton LBC where it was held that all proximate and reasonably foreseeable harm would give rise to a duty, except where there were considerations that ought to negative or reduce the scope of that duty.
Assumption of Responsibility: Hedley Byrne v Heller and Partners
The assumption of responsibility test was developed first in the case Hedley Byrne v Heller and Partners in the context of negligent misstatement. The court held that a financial advisor was liable in tort for pure economic losses caused to a third party due to the provision of a misleading comfort letter. As outlined by Lords Morris, Reid and Devlin, the relevant test was that the defendants has assumed a responsibility towards the third party, despite their explicit statement that it was made ‘without responsibility on the part of the bank.’ The assumption of responsibility test was subsequently applied in a number of cases, all of which involved a similar fact-pattern of economic losses caused due to the provision of inaccurate information or poor provision of a financial service. This line of cases includes Henderson v Merrett, Spring v Guardian Assurance, White v Jones and Williams v Natural Life. Christian Witting uses the assumption of responsibility line of cases to argue that the law of negligence is capable of developing using a principled, fact-based test without recourse to wider policy reasons. It should be noted, however, that the negligent misstatement cases contain some form of intrinsic limit as to how widely tortuous liability would be cast: the potential number of claimants is limited to the number to which any given defendant undertook a responsibility.
The author would argue that the assumption of responsibility test provides an excellent example of where different tests of negligence might justifiably apply in different fact-patterns. In the context of the provision of information between certain individuals, the assumption of responsibility test is justified and entirely coherent. However, it seems equally clear that it would not be coherent or justifiable to apply the test in different fact-patterns, such as in the context of medical negligence. The task of determining the test for a duty of care in medical negligence is particularly difficult due to the specific policy needs: the law must balance the need of the patient to recourse if they receive substandard treatment, to protect doctors from undue liability, and to recognise that all medical procedures – and particularly experimental procedures – involve a degree of risk. In the case of McFarlane v Tayside Health Board the House of Lords held that there were particular policy reasons mitigating against the finding of a duty of care in a case where a failed sterilization procedure had resulted in the birth of an unwanted child.
The court’s reasoning turned in part on the concept that the law could not – as a matter of policy – provide compensation for the act of childbirth, since it regarded that occurrence as beneficial. Oppenheim has criticized the case on the basis that it represents an unprincipled application of policy to the test of breach of duty, but it provides a clear example of why different tests for a duty of care are appropriate in different areas: an assumption of responsibility test would not, for example, allow the court scope to consider the appropriate concepts for the law of negligence in the context of McFarlane facts.
Threefold Test: Caparo Industries v Dickman
The threefold test was developed in the case of Murphy v Brentwood District Council and received the explicit endorsement of Lord Bridge Caparo Industries v Dickman and was followed in Smith v Bush. The court in Murphy formulated the well-known three-stage test for determining the existence of a duty of name, namely whether (i) there was a foreseeable risk of harm to the claimant, (ii) the was sufficient proximity, and whether (iii) it would be fair, just and reasonable in all of the circumstances to impose a duty of care in the given circumstances. This formulation elucidates a structured, principled test for establishing whether a duty of care should be found in any given case. It seems from the case law that the courts have approached the question by categorizing the fact-patterns in which a duty of care has previously been found to exist, and then reasoning by analogy to determine whether any new factual variant that is presented to the courts should be ‘fair, just and reasonable.’
Professor Jane Stapleton has argued that the categorization approach is a highly inappropriate method of determining whether a duty of care should exist. She argues that the law following Caparo has adopted a ‘pockets of liability’ approach, where the finding of a duty of care is dependent on characterizing any given case before the courts as analogous with an existing category in which liability has been recognized. She believes that this renders the test highly problematic, since many cases may contain more than one relevant factor; and the court does not explain which factor it chooses to categorize the case and why this factor was given prominence. The example given is that a case might concern elements of pure economic loss and the liability of public authorities. Which line of cases, then, does the court follow in determining liability: the case law on pure economic loss, or the case law on the tort liability of public authorities? She also argues that the ‘fair, just and reasonable’ test results in the court looking to issues of distributive justice – questioning how many claimants might be affected, and how many tortfeasors would potentially be subject to liability – rather than on the relationship between the parties that the assumption of responsibility test looks to.
Holistic Test: Customs and Excise Commissioners v Barclays Bank
A partial solution to this problem may lie in the holistic test developed in Customs and Excise Commissioners v Barclays Bank. Subsequently followed in Rice v Secretary of State for Trade and Industry, the courts held that they should look to a range of factors when determining the existence of a duty of care, including the assumption of responsibility test and an assessment of the proximity of the parties. The courts also recognized the problem that tort law may resolve into a “morass of single instances” of liability and stated that the ‘pockets’ approach was of little use when applied to a novel fact-pattern. It is possible that this approach may contain the key to promoting a full, policy-oriented discussion of the direction of tort law and a number of fundamental policy principles that might drive future developments in the concept of duty of care.
1. Donoghue v Stevenson  AC 562
2. Anns v Merton LBC  A.C. 728
- Hedley Byrne v Heller and Partners  AC 465
4. Henderson v Merrett  2 AC 145
5. Spring v Guardian Assurance
6. White v Jones  2 AC 207
7. Williams v Natural Life  1 WLR 830
8. McFarlane v Tayside Health Board  2 AC 59 (HL)
9. Caparo Industries v Dickman  2 AC 605
10. Smith v Bush  UKHL 1
11. Customs and Excise Commissioners v Barclays Bank  1 AC 181
- K Horsey and E Rackley, Tort Law (Oxford University Press, Oxford 2009)
- C Witting, ‘Duty of Care: An Analytical Approach’ (2005) OJLS 25 (33)
- J Morgan ‘ The rise and fall of the general duty of care’ (2006) PN 22(4) 206
- J Stapleton, ‘In Retraint of Tort’ in P H Birks (ed) The Frontiers of Tort Liability (Oxford OUP, 1994)
- J Stapleton, (1991). "Duty of care and economic loss: a wider agenda". Law Quarterly Review 107 (249).
- R Oppenheim, ‘The "mosaic" of tort law: the duty of care question’ (2003) J.P.I. Law 151
- WVH Rogers, ‘Negligence: duty and breach’ in WVH Rogers Winfield and Jolowicz on Tort (London Sweet & Maxwell, 2010)
 K Horsey and E Rackley, Tort Law (Oxford University Press, Oxford 2009)
 Donoghue v Stevenson  AC 562
 ibid at 619
 Anns v Merton LBC  A.C. 728
 Hedley Byrne v Heller and Partners  AC 465
 Henderson v Merrett  2 AC 145
 Spring v Guardian Assurance
 White v Jones  2 AC 207
 C Witting, ‘Duty of Care: An Analytical Approach’ OJLS 2005 25 (33)
 McFarlane v Tayside Health Board  2 AC 59 (HL)
 R Oppenheim, ‘The "mosaic" of tort law: the duty of care question’ J.P.I. Law 2003 151
 Murphy v Brentwood District Council  1 AC 398
 Caparo Industries v Dickman  2 AC 605
 WVH Rogers, ‘Negligence: duty and breach’ in WVH Rogers Winfield and Jolowicz on Tort (London Sweet & Maxwell, 2010)
 J Stapleton, ‘In Retraint of Tort’ in P H Birks (ed) The Frontiers of Tort Liability (Oxford OUP, 1994) and J Stapleton, ‘Duty of Care & Economic Loss: a wider agenda' [1991) 107 LQR 249
 Customs and Excise Commissioners v Barclays Bank  1 AC 181
 J Morgan ‘ The rise and fall of the general duty of care’ PN 2006 22(4) 206