Relationship Akin to Employment- Tort Law PDF

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Summary of relationship akin to employment in tort law...

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Relationship akin to employment Lord Atkin’s seminal decision in Donoghue v Stevenson [1932] AC 562 was itself an attempt to formulate general guidance by reference to the “neighbour” principle. This principle, though rightly celebrated as an inspired rationalisation of previously decided cases, was ultimately found by later courts to be inadequate to deal with the diverse range of fact situations that came before those courts. Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (8 February 2018) (Robinson) and Steel v NRAM Ltd [2018] UKSC 13 (28 February 2018) (Steel). These decisions appear to herald the demise in English law of the most recent formulation of a general test for recognising a duty of care. This test is sometimes known as the “three stage test” or the “Caparo test” after the House of Lords decision that supposedly endorsed this test, Caparo Industries plc v Dickman [1990] 2 AC 605 (Caparo The three stage test required consideration of the reasonable foreseeability of harm to the plaintiff, the proximity of the relationship between the plaintiff and the defendant, and whether it was fair, just and reasonable to impose a duty in all the circumstances. In both Robinson and Steel, the Court held that the House of Lords in Caparohad not in fact endorsed this three stage test. Rather, the proper approach as set out in Caparo, and endorsed by the Court, was as follows:  

Where a case falls within an established category, the existence of the duty should be determined in accordance with the principles laid down for that category. Where a case involves a novel situation where the existing principles cannot be readily applied, the law should be developed incrementally by analogy with established categories

Facts and Decision in Steel The question before the Court in Steel was whether a solicitor for one party to a transaction owed a duty of care to the counterparty for a misstatement that caused loss to the counterparty. Lord Wilson concluded that in actions for negligent misstatement causing economic loss, the question whether the defendant owed a duty of care to the plaintiff would usually turn on whether the defendant had assumed responsibility for their statement towards the plaintiff. This in turn required consideration whether it was reasonable for the defendant to have relied on the plaintiff’s statement, and whether the plaintiff should have foreseen that the defendant would rely on that statement. As a result, the Court concluded that the solicitor did not owe the bank a duty of care with respect to her statement regarding the terms of the transaction. Facts and Decision in Robinson In Robinson, the plaintiff was knocked over in the street and injured by a group of men consisting of two police officers and a drug dealer whom the police officers were at the time

trying to arrest. The plaintiff brought an action in negligence against the police force claiming that the police officers had acted negligently His Lordship held that, as this case fell within established categories of negligence actions against public authorities generally and the police in particular, the question whether the police officers owed a duty of care to the plaintiff was to be determined by applying the principles laid down by the authorities with respect to these established categories. His Lordship further held that, since this case fell within established categories, the Court of Appeal below had been mistaken in applying the three stage test to this case. And in this case held that the police officers owed a duty of care to the Plaintiff. Both Robinson and Steel were determined by applying principles derived from established categories to the facts of the case. It was therefore unnecessary for the Court in either case to deal with the proper approach in novel cases where existing principles do not readily apply. Despite this, in both cases, both Lord Reed and Lord Wilson went on to discuss the proper approach in such cases. they had also variously noted the limited usefulness in practice of the three stage test and described the search for a single formula as akin to pursuit of a will-o’-the-wisp Both Lord Reed in Robinson and Lord Wilson in Steel endorsed this incremental approach. Lord Reed in Robinson explained this approach in the following terms: “In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.”...