This is Part II of a series of blog posts exploring the scope of the ‘duty of care’ and the frontiers of the tort of negligence.

In this second post, I will argue that the duty of care should be decided solely on the basis of an open discussion and weighing of legitimate policy concerns. Before discussing these issues, it is important to first consider the nature of the duty of care. The duty of care concept has been linked, historically, to a tool used for control of the jury in negligence cases as early as the 19^th century1. Nowadays, the duty of care remains very much a control device (albeit with no jury to control). This stems mainly from the fact that a finding of no-duty will allow the court to strike out the case without the full expense of trial2.

We must also keep in mind that the duty of care is but one of many hurdles the claimant must pass in order to succeed in his claim. In light of this, I would argue that foreseeability has no place in the duty of care. Indeed, the issue of foreseeability is aptly considered at the stage of ‘remoteness of damage’. Furthermore, as we have seen throughout this essay, the concept of ‘foreseeability’ is extremely wide and is also one of these labels behind which policy is disguised3. As seen previously, proximity also suffers from these same shortcomings. Therefore, in the interest of openness, I would discard both ‘foreseeability’ and ‘proximity’ from the determination of the duty of care. Instead, I would allow the policy reasons that would lead a judge to say there was ‘foreseeability’ or ‘proximity’ to be discussed openly. Such an approach has been suggested many times by Lord Denning4, and recognised by Lords Rodger5 and Wilberforce6, as well as Lord Pearce, who aptly said that ‘How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts’ assessment of the demands of society for protection from the carelessness of others’7.

As I have suggested that policy factors should be the sole elements in the determination of the duty of care, we must now look further at the suitability of such an approach. I will not attempt to produce a list of legitimate factors that should be weighed8 but will instead focus on the concerns that have been raised regarding this approach.

The first issue is that of the separation of powers. Some critics have claimed that by making policy-based decisions, the courts are effectively stepping onto Parliament’s territory9. This proposition is fairly startling in that under our constitutional arrangements there has never been a rigid or dogmatic application of this doctrine. As we have seen, the development of the common law is ripe with policy-based decisions. This claim stands even less credible in the wake of the Human Rights Act10, under which the courts now have the opportunity to quash an administrative action on human rights grounds. Finally, the courts and the common law system offer flexibility which Parliament is unable to match. Indeed, the courts, in many cases, may well be better equipped to respond to social changes than Parliament, which is notoriously slow at passing legislation.

The other main argument against judicial policy reasoning is that of the lack of empirical evidence and the claim that the courts are ill equipped to consider these matters. As Jonathan Morgan11 quite rightly argues, given the failures of HMG’s regulatory impact assessments12, why should the courts be held to a different standard? These shortcomings have not stopped Parliament from making decisions based upon incomplete or speculative cost-benefit data. This argument does, however, underline the need for the courts to proceed with caution and carefully weigh the various policy arguments in light of the evidence supporting them. An example of such a situation is to be found in Tomlinson v Congleton BC13. In this case, the costs of the protection work on the council’s land was readily available and was then extrapolated by the House of Lords in order to consider the impact to all other potential areas where people may potentially suffer injury. While such evidence may be unsatisfactory, the consequences of discarding it entirely (and the policy concerns that were associated with it) would have been disproportionally higher.

As we have seen, once rhetorical devices such as ‘foreseeability’ and ‘proximity’ or even ‘voluntary assumption of responsibility’ are removed, the decision to find a duty of care is clearly a policy based one. I have argued that policy should determine the existence of a duty of care and that this should be done with an open discussion and weighing of the legitimate competing factors. I have also underlined the need for evidence supporting the cost-benefit analyses that the courts are invariably drawn to. I will conclude by saying that in my opinion, the policy approach is the most consistent with the aims of the duty of care, namely to act as a control device before the full trial process. It is to be hoped that by evaluating the policy factors openly at this stage, the administration of justice will be swifter and will follow a more utilitarian approach, which will maximise the benefits for society.

1. IBBETSON, D. 1999. A Historical Introduction to the Law of Obligations. Oxford: Oxford University Press, pp. 178-181 & pp. 188-195 [↩]
2. See Lord Hoffman at 42 in Sutradhar v Natural Environment Research Council [2006] UKHL 33 [↩]
3. See part 1, also see Lord Hoffman at p.949 in Stovin v Wise and Norfolk CC [1996] AC 923 [↩]
4. Page v Smith [1996] AC 155 per Lord Denning at 36-37 [↩]
5. See Lord Rodger at 100 in D v. East Berks Community Health [2005] UKHL 23 [↩]
6. McLoughlin v O’Brian [1983] 1 AC 410 per Lord Wilberforce at 420 [↩]
7. Hedley Byrne and Co. Ltd v Heller and Partners Ltd [1964] per Lord Pearce at p. 536 [↩]
8. MCBRIDE & BAGSHAW. 2008. Tort Law. London: Longman, pp. 187-219 [↩]
9. per Lord Scarman in McLoughlin at p. 430 [↩]
10. Human Rights Act 1998: Ch. 42 [↩]
11. MORGAN, J. 2009. Policy reasoning in tort law: the courts, the Law Commission and the critics. Law Quarterly Review, 125, p.4 [↩]
12. GREAT BRITAIN. National Audit Office. 2007. Evaluation of regulatory impact assessments 2006-07. (Paper 606). HMSO: London [↩]
13. Tomlinson v Congleton BC [2003] UKHL 47 [↩]