The tort of negligence is one of the areas of law where the conflict between public policy and the need for justice is most evident. There are three factors involved in establishing negligence. These are: a duty of care, a breach of that duty and consequent damage1. Duty of care is the legal obligation to take reasonable cares to avoid causing damage 2. The concept of a duty of care in negligence arose in the case of Donoghue v Stevenson3.
Lord Atkin in his speech formulated the 'neighbour principle'4. Since that time the tort of negligence has changed immensely and the role of policy has become very important in identifying when a duty of care is owed5. The House of Lords in Anns v Merton Borough Council extended the approach in Donoghue. Lord Wilberforce introduced the two-stage test. Along with Atkin's neighbour principle the policy question would arise: is there any valid policy reason to deny the existence of duty of care?
The modern test was laid down in Caparo Industries Plc v Dickman6 where the damage to the plaintiff should be reasonably foreseeable, the relationship between the plaintiff and the defendant must be suffiently proximate. Moreover, to impose a duty of care it must be fair, just and reasonable. Although the three stage test was adopted in many cases there is no universal approach to duty situations.
' The criteria is little more than convenient labels to attach to the features of different specific situations which the law recognises as giving rise to a duty of care of a given scope'7Therefore, the courts' decisions mostly depend on a question of policy and also on a third limb of Caparo, faireness, justice and reasonableness considering both broad issues of policy and the imposition of a duty of care. 8 Many recent cases that involved consideration of fairness, justice and reasonableness have been influenced by the decision of the House of Lords in Hill v Chief Constable of West Yorkshire Police9.
The police owed no duty of care to an individual member of public . It would be impossible to protect all members of crime that would seriously affect the police service. As a matter of public policy the police was immune from actions for negligence in relation to investigation of crime. Lord Keith doubted whether 'imposion of a duty of care would have any positive results. In some instances the exercise of a function determination of a duty of care may lead to detrimentally defensive frame of mind''10One of the main policy issues in determination duty of care is the floodgate argument11.
Another which plays a very important role is the intervention of Parliament12, and, finally the plaintiff should seek other ways to proceed apart from suing the defendant in tort13. The courts also consider whether it is appropriate to impose a duty of care where an alternative remedy already exists. In Hill v Chief Constable of West Yorkshire Police14 under the Criminal Injuries Compensation Scheme would recover the plaintiff's losses.
'Hill represents an excellent illustration of the interaction between policy issues, and the likely effects of the imposition of a duty of care'15. In Osman v Ferguson16 the Hill's immunity was applied to deny a duty of care where actually there was proximity of relationship between the plaintiff's family and the police17. The police knew about the harassment of Osman's family but did nothing to prevent it. In the Court of Appeal the policy was extended beyond the failure of police to apprehend criminals, however, the claim was rejected.
After the failure in domestic court the plaintiff's family brought a claim against the United Kingdom in the European Court of Human Rights where it was held that a 'blanket immunity' was in breach of Article 6(1)18 of the European Convention on Human Rights. Articles 219 and 620 were considered but dismissed by the court. The ECHR held that all relevant considerations should ' be examined on the merits and not automatically excluded by the application of a rule which amounted the grand of an immunity to the police'21. The Caparo test reduced the number of cases in negligence against the public authorities that could actually go to trial.
The European Convention does not prevent courts taking into account public policy issues. While considering whether to exclude a received duty of care on policy grounds in order to grant immunity to some defendants. After the case of Osman v UK, the Human Rights Act1998 requires courts to balance immunity to the interference with the claimant's rights. Although ruling in Osmant advantageous it has received a strong criticism in judiciary. For instance, Lord Hoffman defends immunity stated by Hill along with other recent cases.
In Stovin v Wise he stated two conditions that need to be satisfied for a duty of care to arise when public authorities fail to exercise their statutory power22. Lord Brown-Wilkinson complained that the reasoning of the ECHR is extremely difficult to understand23, thus has left tort in a very unsatisfactory state of affairs24. It is been observed that foreseeability and proximity are convenient labels and the question of what the foreseeable harms means could be easily changed. It is the test of 'fairness, justice and reasonableness' that allows the courts to keep the tort of negligence within reasonable bounds.
However, it cannot be regarded as a perfect balance for courts since Osman case the policy considerations are left to be uncertain. Following the decision of ECHR the question on policy whether it is fair just and reasonable to impose a duty of care could be only decided by a judge on a full trial. Therefore, the Osman's decision does not change anything in 'immunity blanket' but only point out the way it considers appropriate to approach them. At the same time it is impossible for the courts to proceed without any regards for public policy and social advantage.