The Courts decide

In the same year the Courts developed the current test for whether a duty of care should be established in novel cases and dismissed the Anns test. In Caparo Industries plc v Dickman19, Lord Bridge re-formulated the "test" for a duty to be established by the Courts; this is despite his reservations that a simple mechanical test could ever be formulated to offer assistance to establish liability. 20 The existing "Caparo test" consists of three stages and has somewhat reigned in the liberalisation of the Anns test.

The test stipulates that there should be a reasonable foresight of harm; that there should be a sufficient proximity of relationship; and that it should be fair, just and reasonable for the Court to impose a duty of care. Lord Bridge in his judgement suggested following the approach laid down by Brennan J when he stated: "We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman. "21 The words of Brennan J are:

"It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 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. "22 This three stage test would increase the significance of judicial discretion for policy considerations while incrementally developing the ambit of the tort to novel situations by analogy with existing duty situations known as the incremental approach.

It was also the first time that the Courts developed a distinction between foreseeability of damage and relationship of proximity. Proximity, normally signifying the existence of a pre-tort relationship, now provides an extra hurdle in the way of a successful claim, and as alluded to by Lord Nichols in Stovin v Wise23: Proximity is "only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties". Suggesting that in evaluating the relationship of proximity, the Courts will use policy considerations in their assessment.

However, both proximity and reasonable foresight of damage should be primarily an evaluation of the factual circumstances. Whitting even suggests that proximity based reasoning should be the primary consideration made by the Courts rather than policy based, to create consistency in establishing new duty situations: "A multi-factoral, policy-based approach to duty determinations is likely to leave lower and intermediate appellate courts with little effective guidance and is likely to lead to greater inconsistency in the determination of cases.

"24 Yet, the fair, just and reasonable stage has become the main device to give the Courts policy discretions in imposing new duty situations even when both other stages have been satisfied. Such as in the Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H)25 where it was held that a maritime classification society could not owe a duty to the owners of a sunken ship, even though on principle both of the first two stages of the Caparo test were satisfied.

In this case it was mooted that if a duty was found it could affect international trade and considerations for the defendant's role as non-profit organisation were also taken into account. However, the number of undefined considerations and the approach that the judiciary may take can differ dramatically. For example, economic considerations such as loss distribution may be high in the courts assessment: is the defendant insured or have they deep enough pockets for the Courts to find liability against them?

Conversely as Whitting, some what directly, states "Why, it might be asked, should an innocent victim's entitlement to compensation depend upon the fortuitous circumstance of the defendant's ability to spread the loss? "26 Some may place a high emphasis on the floodgates argument, that the Courts would be flooded by numerous actions in tort, once a novel duty has been established and with the limited funding and resources available to the Courts, a number of new duty situations may not be enforceable if breached, even if in principle, the duty should exist27.

Or, whether finding such a duty would undermine democracy such as in Murphy v Brentwood DC28, where parliament had already legislated as to when a builder would owe a duty to future owners of a property with the Defective Premises Act 1972. 29 A failure by the Courts to recognise a duty to rescue, outside of any special relationship, has helped to create a "clearer and more certain position"30; thus the need to have clarity of when a legal duty is owed may also be of importance. So how should the Courts decide when a duty of care is to be owed by the defendant to a claimant?

There currently lies no core statutory source in negligence to establish a duty of care in novel cases. The French code civil which establishes liability with a single provision of the Code civil, "Article 1382 states: 'Any act whatsoever which causes injury to another obliges the person by whose fault it was caused to pay compensation. '"31 This simple formula, as the Lunney and Oliphant point out, provides no way in limiting the scope of liability32 but, crucially this is done under the umbrella of causation, leaving less room for policy deliberations in creating novel duties.

An improvement may be found in adopting a similar codification, like our French cousins, legislated through parliament. Such a system would promote certainty as to when a legal duty would arise and fears of an over litigious society should be dispelled with a reliance on causation principles to limit the scope of liability. In conclusion, tort acts as a means of: loss distribution, risk allocation, deterrence and perhaps most importantly as a means of corrective justice when a party has suffered harm.

Duty, breach of duty, causation and remoteness are all control methods but, duty, by being the first hurdle that a successful claimant must jump over, is the most effective way to mask the policy considerations made by judges in controlling the ambit of negligence. The courts by trying to, as Whitting suggests, predict the effect of newly established duty situations on future behaviour33 is unsatisfactory. Buckland argued that the duty concept is "an unnecessary fifth wheel on the coach, incapable of sound analysis and possibly productive of injustice.

"34 As society evolves, the tort of negligence with the various fields it incorporates must also evolve. The use of policy in doing this has limited the scope of new duty situations and could create injustice and has given the judiciary too much discretion in determining so called policy. If the courts were to rely solely on legal principle or precedent, new duty situations could arise incrementally and better help to create certainty in the law of tort.