Tests for Duty of Care - Lecture notes 1-3 PDF

Preview

Summary

Introduction There had been some uncertainties in the application of the right tests to determine whether duty of care exist in particular circumstances, especially, when it involves novel cases as the tort law relies primarily on decided cases. Indeed, there are times when the question of law, i., ...

Description

Introduction There had been some uncertainties in the application of the right tests to determine whether duty of care exist in particular circumstances, especially, when it involves novel cases as the tort law relies primarily on decided cases. Indeed, there are times when the question of law, i.e., whether the tests established are adequate and sufficient to sustain justice for the people. In spite of the confusion and dubiety, the courts have managed to set out clearer guidelines for evaluating a duty of care, by extracting the vital principles from a medley of case-law.

Neighbour Principle ‘Duty’ essentially means an obligation or a burden, imposed by law, which requires a person to conform to a certain standard of conduct.1 The issue rose on how to determine the existence of this duty, who should be responsible and to what extent the duty can be imposed. Thus, the principal test used to determine the presence of a duty of care is the neighbour principle. “The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the lawyers question ‘who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neigh bour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question2.” – Lord Atkin in Donoghue v Stevenson. The so-called “neighbour principle” laid down in the case Donoghue v Stevenson provided the basis and conceptual cornerstone for the development of the law of negligence in the twentieth century. In this case, a friend of the plaintiff had purchased for her a bottle of ginger beer at a café. The ginger beer bottles were opaque and the plaintiff was unable to see its contents. When the plaintiff’s friend refilled the glass, along with the ginger beer came the decomposed remains of a snail. The plaintiff suffered shock and subsequently became ill. She sued the manufacturer in negligence as the bottles should be carefully inspected before they were filled with the drinks. The House of Lords held that the defendants, being the manufacturers of the ginger beer, owed a duty of care to the plaintiff, as the ultimate consumer of the drink. This duty was to take reasonable care to ensure that the bottle did not contain any substance which was likely to cause injury to anyone who purchases it in due course. The principle laid down above by Lord Arkin is important in determining who the neighbour is. He came to the decision that it seems to be persons who are so closely and directly affected by my act that I

1 2

Haji Salleh Haji Buang, Law of Negligence in Malaysia, a t page 2. [1932] A.C. 562.

ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 3 Thus, in order to identify who is the neighbour, we must question : would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect another person or the plaintiff? If the answer is yes, then a duty should be imposed on that person to be responsible for his act which injures his neighbour. That is how the word ‘neighbour’ had been interpreted as a person who is foreseeable to be affected by the negligent act. This principle however need not be applied in all cases as there are also situation in which the law had denied the duty4. For instance, if A did not warn B that his shoe lace was not tied up, he cannot then be responsible if B fall off and injure himself. You have your own liberty and conscience as whether to warn that person or not because it is your own choice. The law will not impose duty on these kinds of situations. The law only recognizes this neighbour principle as an initial point in determining the existence of the duty of care in classic and normal situations. The neighbour principle therefore opens the door to claims in negligence for injured parties by recognizing the class of people to whom a duty may be owed. That class of people includes those who are close enough to be directly affected by the careless act and that the alleged tortfeasor should have had their interests in contemplation when acting as he or she did. It is clear that the principle does not throw open the floodgates to unlimited claims, because a tortfeasor will not be held to owe a duty of care to those who are not close enough to be in his or her contemplation at the moment of the tortious act or omission. In Home Office v Dorset Yacht Company Ltd5, the neighbour principle had been used to ascertain the existence of the duty of care. In this case, seven Borstal boys had escaped from an island where they were undergoing training. The escape was due to the negligence of the Borstal officers who, contrary to orders, were in bed. The escapees caused damage to a yacht and the owner commenced an action in negligence against the Home Office. It was held that The Home Officers owed a duty of care for their omission as they were in a position of control over the third party who caused the damage and it was foreseeable that harm would result from their inaction. From the judgment, Lord Reid stated that the principle requires qualification in new circumstances. The time has come when we can say that it ought to apply unless there is some justification or valid explanation for its exclusion. 6 It is clear that, the neighbour principle had stood as the sovereign guiding authority in this field of law. However, the title to this work asks for a discussion as to whether the precedent set in Donoghue “provides an adequate basis on which to resolve duty of care questions” and the answer to that question is

3

Ibid. Norcha ya Talib, 2010. Law of Torts in Malaysia, at page 99. 5 [1970] AC 1004. 6 Wan Azlan Ahmad and Mohsin Hingun, Principles of the Law of Tort in Malaysia, at page 8. 4

offered by subsequent judicial decisions on the issue. The suggestion made by Lord Reid in Home Office v Dorset Yacht had finally led to the decision made in Anns v London Borough of Merton.7 This case had developed a new test as the extension from the Donoghue known as Ann’s test.

Anns Test This test is derived from Anns v London Borough of Merton8 by Lord Wilberforce. The plaintiffs were tenants in a block of flats. The flats suffered from structural defects due to inadequate foundations which were 2 feet 6 inches deep instead of at least 3 feet deep as required. The defendant council was responsible for inspecting the foundations during the construction of the flats. The House of Lords unanimously held that the defendant did owe a duty of care to ensure that the foundations were of the correct depth. Lord Wilberforce introduced a two stage test for imposing a duty of care as follows: 1. Prima facie duty of care Firstly, one has to ask whether, between the alleged wrongdoer and the person who has suffered damage, “Is there a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter? - If yes, a prima facie duty of care arises. 2. Policy Next, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. The first stage essentially corresponds to the neighbour test. However, in order to relieve the fears that this will result in floodgates, this test was subject to the second stage which provided an escape clause for the defendants where there existed policy reasons for denying the imposition of a duty of care. In the second stage, it lies upon the defendant to disprove the allegations of a duty of care on him, since a prima facie duty of care arose from the first step. It was critized that the second step was supposed to be inherent on the first stage so as not to lay a heavy burden of proof on the defendants. This test seems to make problems simpler for the plaintiffs that suffered damages as it was rather uncomplicated to establish a relationship of proximity or neighbourhood since the relationship need not necessarily be an established relationship as dictated by Lord Wilberforce, "In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist."

7 8

[1978] AC 728. [1978] AC 728

It can also be seen that there are some similarity between the Anns case and the Donoghue v Stevenson case. Both cases involved with vital inspection prior to the produce of products for end-users In the Donoghue case, the plaintiff suffered from personal injuries and she claimed that there s hould be proper inspection to the ginger beer bottles before they were filled with liquid. As a result of the negligence of the manufacturer, the plaintiff suffered personal injuries. In the Anns test, the house tenants claimed that the defendant council should have done the proper inspections on the foundations of the flats. Due to the negligence of the council in doing the inspection, the plaintiffs suffered from damage in their property. However, the differing point between the cases is that the plaintiff in Donoghue case suffered personal injuries whereas in the Anns case, the plaintiffs can be said to suffer economic loss only. That is why the Anns test seems to give more protection to the victims than they should deserve.

In the Dutton v Bognor Regis Urban District Council9, Mrs Dutton, the plaintiff sought to recover damages from a builder, Bognor Regis Building Co Ltd, and the local council, Bognor Regis Urban District Council, who certified that her house was sound. However, it emerged that her house's foundations were defective because it had been built on a rubbish tip. The handicap would have been discovered if proper checks were made. Mrs Dutton settled the claim with the builder for £625 after getting advice that an action in negligence could not succeed, but continued in an action against the council, and was awarded damages £2,115 by the judge. The council appealed to the Court of Appeal and the Court of Appeal held that Mrs Dutton could recover money from the council, as an extension of the principle in Donoghue v Stevenson. It was fair and reasonable that the council should be liable to a later purchaser of a house that its surveyor had negligently certified to be in good condition. This is another case that has similar facts to the Anns case. As we can see, the relationship of proximity has been extended. Prior to Donoghue case, we might be able to see the proximity between the manufacturer with retailer, and retailer with customer. However, if the relationship of proximity were only limited to the close scope, many actions for negligence would have failed. That is why Mrs Dutton in the Bognor Regis case was advised that she would not succeed in an action against the builder. In fact, she could recover damages from the council which appeared to be further away in a relationship of proximity compared to the builder. Thence, we can conclude that as long as the acts of the defendants affected the plaintiffs, the defendants are in proximity with the plaintiffs and liable for their negligent actions, even in economic loss cases. Therefore, with the application of this case, we can ensure that the manufacturers and goverment agencies that are in charge with controlling standards of products would do their job in the right manner so 9

[1972] 1 QB 373

as to prevent any negligent damages to the consumers. There would be less problems if we placed a fair responsibilty on the people that are involved in the very root of a matter, i.e., the primary level itself. Thus, if this test were to be used for all negligence cases, it would surely perplex the authorities to create a policy that can be like a wolf in sheep’s clothing, that is a policy that can show some benefits and concern to the public and yet, striking out their liabities for the public. Nonetheless, when a case deals with the governments, the governments would usually prevail as they have their statutes that limits or extinguish their liability for their own negligent acts. After all, some matters are not meant for the courts to decide, but for the authority that governs us. This also explains why the courts in Malaysia have discredited the Anns test and favoured the Caparo test. In Jobling v Associated Dairies10, Lord Wilberforce said, "We do not live in a world governed by the pure common law and its logical rules.No general, logical or universally fair rules can be stated which will cover [all events] in a manner consistent with justice".

Caparo Test

Despite the efforts to reduce fears of the floodgates, the Anns test was still considered too wide. In Caparo, the House of Lords overruled Anns and went back to the incremental approach whereby the claimant may only bring their action where they can establish an existing duty situation. In novel situations, the question of whether a duty of care arises is now subject to the Caparo test. Caparo Industries v Dickman11 is currently the leading case on duty of care. The defendants (D) are the auditors of company accounts. Caparo, the plaintiff (P) bought shares and then discovered that the accounts did not show that the company had been making a loss. The loss suffered w as economic as a result of a negligent statement. P alleged that in negligence a duty was owed by the D to P. However, the House of Lords decided that D was not liable. The House of Lords established that while it is foreseeable that investors may use published accounts to make investment decisions, the accountants who produced such accounts would not be liable for losses as a result of the accounts being wrong. This is because there is no sufficient proximity between the accountants and, effectively, anyone at all who may rely upon them. Lord Bridge has set out a three tier test/three-fold test which must be satisfied in order for there to be a duty of care. Under the Caparo test the claimant must establish that: 1. It was reasonably foreseeable that a person in the claimant’s position would be injured, 2. There was sufficient proximity (closeness) between the parties, 3. It is fair, just and reasonable to impose liability on the defendant.

10 11

[1982] AC 794 [1990] 1 ALL ER 568

All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the claimant. It can be seen that the first two parts of "proximity" and "foreseeability" are merely objective tests that rely on the facts alone. In fact, they are taken directly from the original neighbour test. The third part of the test, whether it is fair, just and reasonable to impose a duty of care is really a matter of public policy. It relates to the same policy considerations under the Anns test. In fact the Caparo test contains the same elements as Anns. The main difference is that under Caparo it is the claimant that must put forward policy reasons for imposing liability whereas under Anns, liability would arise once the claimant had established reasonable foresight and proximity and the defendant had to demonstrate polic y factors for negating liability. The phrase "fair, just and reasonable" is fairly ambiguous within a legal context. Due to this ambiguity it is down to the individual judge's interpretation of what these terms means, and thus within this category

of

the

Caparo

test

there

is

a

large

amount

of

judicial

discretion.

Two alternative uses for the policy argument have developed since Caparo, the first being the traditional use from Anns where the fairness of a duty was used as grounds to deny it. Secondly, the new "positive usage" used to "ground the imposition of a duty of care". This extension of the scope shows how although judicial discretion cannot do much to change the main test, it can be used to change the elements of the test

For instance, the courts are usually reluctant to impose a duty on public authorities, as seen in the case of Hill v Chief Constable of West Yorkshire12. D, the police failed to catch the "Yorkshire Ripper". P, the mother of the late 13th victim sued the police for negligence alleging inefficiency and errors in their handling of the investigation. The House of Lords held that the police owed no duty of care towards the daughter to protect her from the Ripper. It was pointed out that imposing a duty on police could lead to policing being carried out in a defensive way which would divert attention away from the suppression of crime, leading to lower standards of policing, not higher ones. This is an example of the traditional negative usage of the test, being used to deny the existence of a duty of care. However, in some circumstances the police do owe a duty of care. In the case Reeves v Commissioner of Police of the Metropolis13 the police took a man into custody who was a prisoner known to be at risk of committing suicide. Whilst in custody he hanged himself in his cell. The court found that the police owed him a duty of care. An example of a positive usage of the just and reasonable test is shown in cases involving members of the legal profession, where it seems reasons other than proximity

12 13

[1988] 2 ALL ER 238 [2000] 1 AC 360

and foreseeability were needed to justify an imposition of a duty. In White v Jones14 the daughters of a testator sued the defendant solicitor for negligently failing to draw up a new will before their father died, which would have named them as beneficiaries. Generally courts do not wish to impose liability in cases of nonfeasance even if the elements of proximity and foreseeability were present as they were in this case. In this case, Lord Goff said a duty should be imposed because without the test of policy the two worthy beneficiaries would be at a loss and unable to claim, and the only person who could claim is the deceased father who had no loss. So while it must be noted that there is discretion within the Caparo test, it must not be though to undermine the test, it enhances it and makes sure that the correct decisions can be made despite the presence of foreseeability and proximity which under Anns were sufficient.

In my view, the uses of Caparo test is more beneficial and a stronger method to achieve justice, than simply applying the vast ‘neighbour principle' to every situation. Donoghue has received considerable support in subsequent cases and marked a dramatic change in the law. It also provided the first general test for duty in negligence. Nevertheless the main issue appears to be that; “it is incorrect to place too great an emphasis on any one” approach and furthermore in rare cases no recognized test is followed. This shows that in reality policy considerations and judicial discretion overrule generality. The tests for duty are therefore not a shroud for judicial discretion, but are in fact a means for accommodating judicial discretion and controlling it to an extent. And this element of discretion is the most valuable aspect for the Caparo test, for making sure that duty will not be imposed if it is unjust to do so, even if the tests of foreseeability and proximity are established, or for giving extra weight to an argument for imposing a duty. New Model As all of the three tests have been examined carefully, it shall be fair and just for us to lay down our suggestion on what actually matters in the scope of duty of care. Here, the combination of the tests in the ‘Neighbour’s Principle’ which was derived f...