3
between the parties and the normative implications of that in a range of contexts. Secondly, it
provides a useful basis for striking out claims at an early stage, if analysis shows no duty of care is
owed, thereby obviating the expense and delay associated with a full trial on the facts.
The modern formulation to determine the existence of the duty of care arrived with the decision
in Caparo v Dickman.
Lord Bridge observed that what emerges from the caselaw is that, “in
addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty
of care are that there should exist between the party owing the duty and the party to whom it is
owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the
situation should be one in which the court considers it fair, just and reasonable that the law should
impose a duty of a given scope upon the one party for the benefit of the other.”
Where a duty of care is authoritatively established in the caselaw, there is no warrant for constantly
revisiting its existence by repeated application of the “fair, just and reasonable" formula.
But
where there is an open question whether a duty of care exists in a particular context, resort to that
formula is appropriate.
2. Considerations of policy in the duty of care analysis
The third stage of the Caparo test, whether it is fair, just, and reasonable to impose a duty, invites
attention to considerations of policy.
This is inevitable, because when a court declares that a
common law duty of care exists, the state imposes legal obligations on a person. The court
performs a role which is to some degree legislative. That is so even if the process is conceived of
as a sort of recognition of something identified through the application of background legal
principles. Those background principles themselves involve resort to policy considerations. For
this purpose “policy” must be identified in a reasonably determinate way, and in a manner which
properly legitimises the court’s decision to impose the duty.
For example, in Hedley Byrne v Heller Lord Pearce said that the “sphere of the duty of care in
negligence […] depends ultimately upon the courts’ assessment of the demands of society for
protection from the carelessness of others”.
Lord Denning referred to this in the Court of Appeal
in Home Office v Dorset Yacht and said that the determination of a duty of care was “at bottom a
matter of public policy which we, as judges, must resolve”,
a comment that was later approved
by Lord Diplock in the House of Lords.
Policy considerations are perceived to play an important
part in determining questions regarding duty of care, particularly at the ultimate appellate level.
How, then, can the courts formulate a concrete guide to the policy considerations in recognising
or denying a duty of care at common law, or extending or narrowing the scope of such a duty?
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [27].
Michael v Chief Constable of South Wales Police [2015] AC 1732, [160] (Lord Kerr). See also Customs and Excise
Commissioners v Barclays Bank [2007] 1 AC 181, 190 (Lord Bingham).
Cf Stephen Guest, Ronald Dworkin (2013, 3
rd
ed, Stanford University Press), 91: policy may be a term which is “used
loosely, sometimes even just to mean that the judge has run out of good arguments.”
Hedley Byrne v Heller [1964] AC 465, 536.
J. Morgan, “‘Policy Reasoning in Tort Law’: The Courts, the Law Commission and the Critics” (2009) 125 LQR 215,
215. For a further example of explicit policy reasoning, see the speech of Lord Wilberforce in the “nervous shock”
case, McLaughlin v O’Brian [1983] 1 AC 410, 421-422.