How do the Courts in England and Wales decide when a duty is owed by the defendant to the claimant? How should they decide these issues? To what extent should such a decision be purely a matter of principle, as opposed to policy? Tort, as a field of the English Common Law, may be seen to be one of the most uncertain and chaotic areas of the English legal system. This is due to the very nature of tort law; the huge corpus uris and the need to limit the ambit of negligence claims, the predominant tort in this field, that may be brought before the Courts.
One way in which the Courts have limited its scope is to mask policy considerations by failing to establish a duty of care in novel cases. It may be said that at the heart of this chaos has been, as Professor Jane Stapleton suggests, the misguided enterprise among both judges and academics in searching for a core test to determine whether a duty of care may be owed by one party to another1, thus delivering an actionable case in negligence.
The role of judicial policy and legal principle are both fundamental in determining whether a duty of care is to arise and both considerations have a function in restricting the ambit of the tort of negligence while allowing novel cases to be judged fairly on the individual facts of the case.
This essay will attempt to describe the origins of the tort of negligence; outline and criticise how the Courts in England and Wales have, in the past, decided when a duty of care is to be imposed; discuss how they now decide whether a duty of care is to be imposed and finally; illustrate how they should decide these issues and whether an improvement can be made by a lesser reliance on policy considerations with more reliance on legal principles. The origins of the tort of negligence and the subsequent principles that it has been built on can be found as early as the 14th century.
In the case of Cok v Durant2 it was found that residents of London should keep their fires safely so as not to injure their neighbour. This reference to neighbour would later become synonymous with the tort of negligence. Five centuries later, in Heaven v Pender3, where a ship painter was injured when a rope supplied by the defendant snapped and injured him; although the defendant was contracted to the claimant's employer only, a general duty of care that existed outside of the privity of contract was mooted in the judgment of Brett MR when he stated:
"Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. "4 Adding that "there may be an obligation of such a duty from one person to another although there is no contract between them.
"5 This was later to be expanded upon by Brett MR in his role as a Law Lord, Lord Esher, in the case of Le Lievre v Gould6, where he states the importance of physical proximity: "If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause personal injury to that other, or may injure his property. "7 This was later to become one of the foundational principles upon which a duty of care was to be imposed by the Courts. However, although this may be seen as the seeds being sewn, neither of the above cases resulted in an extension of liability.
It was not until the following century and the landmark case of Donoghue v Stevenson8, where the claimant consumed part of a bottle of ginger beer, bought by a third party and suffered injury when a decomposed snail was found in the remainder, that these principles were developed into a relatively coherent concept. Lord Atkin's formulation of a duty to take "reasonable care to avoid acts or omissions which you reasonably foresee are likely to injure your neighbour"9 confirmed negligence as a separate tort10 while exposing the privity of contract fallacy.
Despite the case establishing a duty owed by a manufacturer to the ultimate consumer, or the "narrow rule", and that this duty of care notion being the pre-eminent concept in the tort of negligence11, it is evident by Lord Atkin's use of the word "neighbour" in his judgment that with the newly established tort of negligence, the Courts were already concerned with limiting the scope of liability through proximity and foresight of injury.
This is despite the House recognising that there could be no finite limit to new duty situations which may expand the ambit of liability not already covered by precedent, evidenced by Lord Macmillan at 619, stating: "[T]he categories of negligence are never closed"12. Although not part of the ratio for the decision, Lord Atkin's "neighbour principle" would create a broad moral principle of neighbourliness. Although, a duty of care test based solely on proximity and foresight of injury may have proven somewhat unsatisfactory and would later evolve.
In Home Office v Dorset Yacht Co Ltd. 13 where a number of boys under the supervision of three officers of a borstal escaped, when the officers were allegedly asleep, and went for a joyride on a yacht and injured the plaintiff's property. The House found in favour of the plaintiff and in doing so Lord Reid stated in his judgment regarding the "neighbour principle" that: "the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.
"14 This would suggest that the onus had shifted to the defendant to exclude a duty owed to the claimant but crucially, policy considerations could still be deliberated by the courts under the mask of foreseeability. This somewhat liberating principle was later confirmed in 1978. The case of Anns v Merton LBC15, in which a building's foundations were alleged to have been at an insufficient depth, the plaintiffs brought a claim in negligence against the local authority on the grounds that the authority had negligently failed to, or negligently inspected the building's foundations.
Lord Wilberforce attempted to create a two stage test to establish whether a duty of care was to be imposed on the defendant by the Courts. The test, which incorporated the neighbourliness of Lord Atkin's formulation and integrated proximity in its legal rather than geographical sense, can be summarised thus by asking two questions: was the harm that the plaintiff suffered foreseeable, bringing them within the neighbour principle? If affirmative then a prima facie duty of care arises and secondly, integrating policy considerations, if there is any valid reason why a duty of care should not be imposed?
With the onus being on the defendant to prove a valid reason. If both the questions were answered satisfactory to the claimant then a duty of care was then imposed upon the defendant. It can be argued that this further liberalisation of the duty test could provide additional potential for extensive liability as the proximity criteria of the first stage could prove unlimited in scope as many injuries may be considered as foreseeable and there being no distinction between both terms.
Further doubts of the "Anns test" were to follow, perhaps most noticeably in Yeun Kun Yeu v Attorney General of Hong Kong16 where he stated: "In view of the direction in which the law has since been developing, their Lordships consider that for the future it should be recognised that the two-stage test in Anns is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care. "
The decision in Anns was later overruled in Murphy v Brentwood District Council18, where cracks appeared in a house built on a concrete raft which had subsided and the plaintiff sued the local authority for negligently approving the plans. This proved to be a contraction in the scope of a duty of care, and established that there was no duty in pure economic loss cases. The case also emphasised the distinction between economic loss and physical/property damage.