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Tort Law Formative

‘[I]n Robinson v Chief Constable of West Yorkshire Police (…) Lord Reed gave a leading judgment that represents a golden opportunity to place future duty of care reasoning on a secure, settled and defensible footing’. Critically discuss this statement, in relation to the Supreme Court’s analysis of the ‘Caparo test’.

Candidate Number: 2108136 Word Count: 938

The duty of care is a well-established principle in Tort law. It the duty of one to “take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” per Lord Atkin, Donoghue v Stevenson [1932]1. However, the term ‘neighbour’ is broad and there have been many other instances where duty of care can be established and proven. One such test is the Caparo test, established in Caparo Industries v Dickman [1990]2. The Caparo test is a three-step test to establish whether a defendant owed the claimant a duty of care, it is important to note that the test only applies to novel cases where there is no relevant case law which has previously determined a duty of care. In Robinson v Chief Constable of West Yorkshire Police [2018]3, it was established in the Court of Appeal that “most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test” per Hallet LJ, Robinson v Chief Constable of West Yorkshire Police [2014] 4. Overall, in the case of Robinson, it is reaffirmed that the duty of care is imposed after careful examination of the facts of the case, and if it is a novel case under the Caparo test or, through relevant case law. Robinson reiterates that the Caparo test is cannot be applied to all cases, Lord Reed says in his judgement,” “[i]t is neither necessary nor appropriate to treat Caparo as requiring the application of its familiar three-stage examination afresh to every action brought. Where the law is clear that a particular relationship, or recurrent factual situation, gives rise to a duty of care, there is no occasion to report to Caparo”5, establishing that there is no single test which can be applied to all cases.. However, it can be argued that factual recurrence is rare, and all cases may be deemed novel, as the facts do not align clearly, and using the Caparo test provides a clear judgement as to whether a duty of care is owed; Brennan J presented this view in Sutherland Shire Council v Heyman [1985]6, where he stated “the law should develop novel categories of negligence incrementally and by analogy with established categories”. The idea that cases should develop incrementally is also prevalent in the Caparo test, this would be more efficient as it could combine both the Caparo test and allow previous cases to help establish a duty of care, alongside the Caparo test. Furthermore “Cases simply do not fit 1 Donoghue v Stevenson [1932] AC 562, [44] 2 Caparo Industries plc v Dickman [1990] UKHL 2 3 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 4 Robinson v Chief Constable of West Yorkshire Police [2014] EWCA CIV 15, [46] 5 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [100] 6 Sutherland Shire Council v Heyman (1985) 50 ALR 1

nicely into categories”7, this again reiterates that it may be difficult to always have set precedents and the difficulty that each new case may need to establish a specific duty of care. However, this is very inefficient as it will open the metaphorical floodgates, as without clear cases where duty of care is established, there will be a flood of tortious claims arguing that a duty of care was owed. Therefore, as per the statement, there must be a secure footing to place a duty of care, and the Caparo test cannot always be applied, as per Lord Reed. With specific regard to Robinson, police officers cannot always hold the duty of care to protect all third parties, unless a grossly negligent act has been committed. The supreme court made it clear that police officers were not immune to actions in negligence, as it was held that the Chief Constable was liable and owed a duty of care to Ms Robinson. However, it could be argued that it does not serve the public interest to allow police officers to be placed under a duty of care to protect all third parties. As the judgement in Robinson, could be said to place police officers under pressure to protect the public, and deter them from arresting suspects. Using the Caparo test would be more fair in determining whether a duty of care is owed by the police as it will provide a ‘secure, settled and defensible footing’, a the Caparo test provides a fair and just test; the Court of Appeals decision to do so in Robinson v Chief Constable of West Yorkshire Police [2014], could be argued as more fair. In conclusion, the case of Robinson provides clear evidence that the Caparo test, is not valid for all cases, as if previous case law exists this provides a more secure footing. However, I have argued in this essay that it may provide a fairer result as it takes each case as novel and can establish clearly whether a duty of care is owed.

7 Gordon Cameron, Edinburgh Law Review, Volume 23 Issue 1, available online Jan 2019, (accessed 9th November 2020)

Bibliography List of cases: Donoghue v Stevenson [1932] AC 562, [44] Caparo Industries plc v Dickman [1990] UKHL 2 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 Robinson v Chief Constable of West Yorkshire Police [2014] EWCA CIV 15 Sutherland Shire Council v Heyman (1985) 50 ALR 1 List of secondary sources: Gordon Cameron, Edinburgh Law Review, Volume 23 Issue 1, available online Jan 2019, (accessed 9th November 2020)...