It should be seen that the courts do not always mark out the bounds of duty to limit the responsibility of the defendant, they sometimes do it to protect the interests of someone who has suffered a loss. However it is important for the courts to limit the responsibility of the defendant due to the ‘floodgates problem’. What is more, the courts sometimes treat certain groups of defendants leniently by limiting their liability in some cases. On one hand, the courts draw a line to mark out the bounds of duty to protect the interests of and compensate those who have suffered a loss and injury and this is also one of the major aims of tort law.
In Donoghue v. Stevenson, the courts judged the manufacturer of the ginger beer, David Stevenson of Paisley owned a duty of care to Mrs Donoghue even though there was no contract between them. In Lord Aitkin’s “neighbour” principle, liability should be found as long as someone failed to “take reasonable care to avoid acts or omissions” which he/she can “reasonably foresee” would be likely to injure his/her neighbour, policy factor seems to be irrelevant in deciding whether a duty of care exists. On the other hand, policy factor is one of the major factors in drawing a line to mark out the bounds of duty.
The reason of the courts using public policy principles to draw a line to mark out the bounds of duty to limit the responsibility of the defendants is twofold. Firstly, the responsibility of the defendants ought to be limited due to the ‘floodgates’ problem of too many potential claimants. The most obvious example would be where the damage to the claimant is nervous shock. The courts tend to use restrictive devices such as ‘unforeseeable claimant’ and lack of proximity to restrict the liability of the defendants.
In the judgment of Alcock v Chief Constable of the south Yorkshire police, where the claims were bought after the Hillsborough disaster in 1989 where the plaintiffs in this case were mostly secondary victims, therefore they were not ‘directly affected’ as opposed to primary victims who were either injured or were in danger of immediate injury. The claimant would have required to be in close proximity to the event, and would usually exclude events witnessed on television or by a third party, which many were in the Alcock case.
In addition if the ‘nervous shock’ was caused by witnessing a death of another person the claimant must show a ‘sufficiently proximate’ relationship with the victim, such ties usually are that of a sibling, or a spouse. Therefore the defendants in the Alcock case would have reduced liability. Furthermore, there is the issue that certain groups of defendants are judged leniently in that of Hill V Chief Constable of West Yorkshire. Where the Claimant, mother of last victim of Yorkshire ripper, claimed police had not used reasonable care in apprehending murder.
However Policy cited she was not owed a duty of care and used the issue of public policy, whereby making the Police gain further liability would lead to police discretion being limited and exercised in a defensive frame of mind. Lord Keith argued that the claimant ‘was one of a vast number of the female general public who might be at risk…there is no general duty of care owed to individual members of the public by the responsible authorities’. If the courts did not limit the responsibilities of the defendant, then the people would not respect public authority, this raised public policy and the lack of proximity.