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“Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant”.

(Spartan Steel v Martin & Co [1973] QB 27, per Lord Denning, MR)

Discuss the above proposition, with reference to a...

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Riya Shah 1511166

LA1240 Tort Law – Formative Assessment 1 “Whenever the court draws a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant” (Spartan Steel v actin & Co., per Lord Denning, MR). Discuss the above proposition, with reference to at least three cases. Maximum 600 words. The ratio decidendi of Donoghue v Stevenson [1932] clearly established the fact that manufacturers of a consumable product owe a duty of care towards their consumers. In attempt to determine the boundary of duty, Lord Atkin’s “neighbor principle” came into being, which merely expanded circumstances under which one could be held responsible. This is further supported by Lord Macmillian’s remark “[T]he categories of negligence are never closed 1”, implying that courts have the authority to create new duty situations which can expand the areas of liability. Taking into account that the essential function of policy is to take into consideration public interests and contemporary values2, this obiter dictum does not limit the responsibility of the defendant, but, contradictorily, expands it. Although, the Murphy v Brentwood [1991] case limits the expansion made in the prior case, as it makes a distinction between economic and physical damage. The case concludes that the principles that arose Donoghue v Stevenson [1932] should only apply in circumstances where physical harm has been made; duties of care will not be owed in economic losses. In 1957, when the Bolam Test was formulated, stating that “a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view 3”, policy was used to limit the responsibility of the defendant, only if the defendant was part of a professional body. Responsibility of the police was limited in the case of Hill v Chief Constable of West Yorkshire [1989], where it was claimed that the police did not use reasonable care in arresting the Yorkshire Ripper. A duty of care was not owed, the policy reason being not to limit and exercise police discretion with a defensive mind frame. Formation of the Bolam Test limited the responsibilities of professional bodies as defendants, with the policy of ensuring that the police retained control over the public. However, in 1997, the Bolam Test was modified, to state “practice should be regarded as proper by a competent, reasonable body of opinion – not just a responsible body of medical opinion4” – which still limited the responsibilities of professional bodies as defendants, but expanded it since the original test. The Anns v Merton [1978] case resulted in the creation of the 2-stage test for existence of duty of care, by Lord Wilberforce. Despite the fact that the inspectors failed to check the foundations of the house, the reason for which they were held liable is solely because there was a “sufficient relationship of proximity” between the them and the residents. Policy, in this case, played a role in ensuring the safety of the general public. Part (b) of this test clearly shows that courts look for considerations in order to limit or reduce the amount of responsibilities on defendants 5. Further limitations of responsibility were expressed by the formation of the 3-stage test, 1 Lord Macmillian, Donoghue v Stevenson (scottishlawreports.org.uk) 2 Assessment of Completing Policy Considerations (eprints.qut.edu.au) 3 Bolam v Friem Hospital Management Committee (e-lawresources.co.uk) 4 Judgment - Bolitho v. City and Hackney Health Authority (parliament.uk) 5 Anns v Merton London Borough Council (e-lawresources.co.uk)

Riya Shah 1511166

overruling the 2-stage test. Based on Caparo Industries plc. v Dickman [1990], this test limits the defendant’s responsibilities to a greater extend, as now, duties of care are only imposed if the court finds it “fair, just and reasonable 6” to do so (part (c) of the test). Courts often expand the responsibilities of defendants, in the attempt to protect public interests and the opening of floodgates. Nevertheless, courts tend to also restrict the bounds of duty for greater public welfare and to limit the amount of responsibilities on professional bodies, especially doctors and policemen. They are flexible in determining the bounds of duty with the general objective of protecting the overall public welfare. Word Count: 600

6 Caparo v Dickman Industries (e-lawresources.co.uk)

Riya Shah 1511166

Bibliography (1997). Judgment - Bolitho v. City and Hackney Health Authority. Available: http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli02.htm. Last accessed 1st Nov 2015. Anns v Merton London Borough Council [1978] AC 728 .Available: http://www.elawresources.co.uk/cases/Anns-v-Merton-London-Borough-Council.php. Last accessed 1st Nov 2015. Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. Available: http://www.e-lawresources.co.uk/Bolam-v--Friern-Hospital-ManagementCommittee.php. Last accessed 1st Nov 2015. Butler, Desmond A.. (2002). An assessment of competing policy considerations in cases of psychiatric injury resulting from negligence.Available: http://eprints.qut.edu.au/18404/1/18404.pdf. Last accessed 1st Nov 2015. Caparo Industries pIc v Dickman [1990] 2 AC 605. Available: http://elawresources.co.uk/cases/Caparo-Industries-v-Dickman.php. Last accessed 1st Nov 2015. Lord Macmillan. (). Donoghue v Stevenson – Appeal Papers – Judgments. Available: http://www.scottishlawreports.org.uk/resources/dvs/page-text/pages/Lord-MacmillanPage-8.html. Last accessed 1st Nov 2015....