lOMoARcPSD|18313603
Seminar 3, Tort Law
a) What are 'policy considerations' and what role do they play in decisions about
the existence of a duty of care?
- Compare judgments of Lord Reed, Lord Mance & Lord Hughes.
- In%luence the long-term development of case law.
- Policy considerations arise in novel cases.
- Effect on scope of duty of care?
- Floodgates issue restricts scope of duty of care.
- But; lack of an appropriate remedy can widen the scope of duty of care.
- Non-legal principle that a judge may incorporate to decide an outcome of a case;
economic, moral or ethical.
- Floodgate issue = Police consideration.
- Judges may look at whether an af%irmative decision would bring a %lood of
further similar claims, which would overwhelm courts or devalue legal credibility.
- Ripple effect - Similar claims being brought all the time.
- E.g. C is a member of an indeterminately large class of persons.
- Goodwill v British Pregnancy Advisory Service 1996.
- Doctor didn't owe duty of care.
- Psychiatric injury.
- Pure economic loss.
- Potential impact that a decision might have on insurance industry in future.
- Recently judges have begun voicing concerns about impact of negligence liability on
socially bene%icial activities; e.g. school trips.
- Policy considerations for denying a duty of care = other appropriate remedies.
- Effective remedy in contract.
- Judicial review.
- Lack of appropriate remedies?
- Good reason why a duty of care might be imposed.
- Spring v Guardian Assurance 1994
- C couldn't sue in defamation, duty of care on employer.
- White v Jones 1995
- Didn't have a claim in contract as weren't privy to the contract.
- When a public authority should be liable; Impact on the function of the public
authority.
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, lOMoARcPSD|18313603
Lord Reed:
- Incremental approach; means they use legal principles; common law, precedent &
reasoning by analogy.
- Reason by analogy - Have these facts been seen before in a previous case?
- Novel case: Legal principles have run out & cannot be applied so have to use 'fair, just
and reasonable'.
- Constructs argument by numbering the issues.
- Disagrees with Hallett LJ from COA.
- Wrong to just look at 'fair, just and reasonable' element; must look at policy
considerations.
- Says it was an act, not an omission; Police had caused the damage by their actions.
- Case should be decided on legal principles.
- Says there was proximity & reasonably foreseeable risk.
- Caparo should be used by looking at 3 elements equally.
- Policy considerations are to come after legal principles.
Lord Mance:
- 'Courts are not a Law Commission, but, in recognising the existence of any generalised
duty in particular circumstances they are making policy choices'.
- Looked at policy factors in Elguzouli-Daf regarding liability of CPS; Steyn LJ; 'the
interests of the whole community are better served by not imposing a duty of care on
the CPS'.
- Agrees that it is an act, not an omission.
- Looks at Lord Reid; 'There was a time when it was thought almost indecent to suggest
that judges make law - they only declare it... But we do not believe in fairy tales any
more'.
- Unsure whether there is evidence of the damaging effect on police of%icers practice if
there were a duty of care, but it is a held view.
Lord Hughes: Para 98
- 'Foreseeability of harm is a necessary but not suf%icient condition for liability'.
-'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 resort to Caparo, at least unless the
court is being invited to depart from previous authority'.
- Interests of the whole community; para 107
- Looks at police cases.
- Policy consideration; Police of%icers would become defensive; damaging effect on their
practice.
b) What role should policy considerations play in decisions about the existence of
a duty of care?
Downloaded by Imaan T ()
Seminar 3, Tort Law
a) What are 'policy considerations' and what role do they play in decisions about
the existence of a duty of care?
- Compare judgments of Lord Reed, Lord Mance & Lord Hughes.
- In%luence the long-term development of case law.
- Policy considerations arise in novel cases.
- Effect on scope of duty of care?
- Floodgates issue restricts scope of duty of care.
- But; lack of an appropriate remedy can widen the scope of duty of care.
- Non-legal principle that a judge may incorporate to decide an outcome of a case;
economic, moral or ethical.
- Floodgate issue = Police consideration.
- Judges may look at whether an af%irmative decision would bring a %lood of
further similar claims, which would overwhelm courts or devalue legal credibility.
- Ripple effect - Similar claims being brought all the time.
- E.g. C is a member of an indeterminately large class of persons.
- Goodwill v British Pregnancy Advisory Service 1996.
- Doctor didn't owe duty of care.
- Psychiatric injury.
- Pure economic loss.
- Potential impact that a decision might have on insurance industry in future.
- Recently judges have begun voicing concerns about impact of negligence liability on
socially bene%icial activities; e.g. school trips.
- Policy considerations for denying a duty of care = other appropriate remedies.
- Effective remedy in contract.
- Judicial review.
- Lack of appropriate remedies?
- Good reason why a duty of care might be imposed.
- Spring v Guardian Assurance 1994
- C couldn't sue in defamation, duty of care on employer.
- White v Jones 1995
- Didn't have a claim in contract as weren't privy to the contract.
- When a public authority should be liable; Impact on the function of the public
authority.
Downloaded by Imaan T ()
, lOMoARcPSD|18313603
Lord Reed:
- Incremental approach; means they use legal principles; common law, precedent &
reasoning by analogy.
- Reason by analogy - Have these facts been seen before in a previous case?
- Novel case: Legal principles have run out & cannot be applied so have to use 'fair, just
and reasonable'.
- Constructs argument by numbering the issues.
- Disagrees with Hallett LJ from COA.
- Wrong to just look at 'fair, just and reasonable' element; must look at policy
considerations.
- Says it was an act, not an omission; Police had caused the damage by their actions.
- Case should be decided on legal principles.
- Says there was proximity & reasonably foreseeable risk.
- Caparo should be used by looking at 3 elements equally.
- Policy considerations are to come after legal principles.
Lord Mance:
- 'Courts are not a Law Commission, but, in recognising the existence of any generalised
duty in particular circumstances they are making policy choices'.
- Looked at policy factors in Elguzouli-Daf regarding liability of CPS; Steyn LJ; 'the
interests of the whole community are better served by not imposing a duty of care on
the CPS'.
- Agrees that it is an act, not an omission.
- Looks at Lord Reid; 'There was a time when it was thought almost indecent to suggest
that judges make law - they only declare it... But we do not believe in fairy tales any
more'.
- Unsure whether there is evidence of the damaging effect on police of%icers practice if
there were a duty of care, but it is a held view.
Lord Hughes: Para 98
- 'Foreseeability of harm is a necessary but not suf%icient condition for liability'.
-'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 resort to Caparo, at least unless the
court is being invited to depart from previous authority'.
- Interests of the whole community; para 107
- Looks at police cases.
- Policy consideration; Police of%icers would become defensive; damaging effect on their
practice.
b) What role should policy considerations play in decisions about the existence of
a duty of care?
Downloaded by Imaan T ()
