Tort law essay

Student ID : U1522264:
Word Count : 2572

TORT LAW ESSAY 2016 :

Tort law has always been subjected to different cases, policies, precedents and judges’ points of views, in order to show whether or not a claimant had suffered any losses recognizable by law. As Brennan J. posited in Sutherland Shire Council v. Heyman^[1], judges must examine all the different facts in every case to assess if a duty should be imposed. This proposition puts emphasis on the fact that cases are peculiar, have different complexities and will therefore lead to discrete outcomes. Nevertheless, some general principles have been created through times to help judges in the making of their decisions. The most famous is the Caparo, nowadays labelled as a test, which was originally laid down by Lord Bridge in Caparo Industries PLC v Dickman^[2]. The Caparo test is supposed to show the foreseeability of harm, a relation of proximity between the parties, and prove that the duty is fair, just and reasonable for the rest of the society. Lord Bridge thus considered this new approach as incremental, stating that this test was proper to this particular case and its contents. 

Nevertheless, other practitioners saw this examination as a conceptual framework, made on purpose for the assessment and the creation of new duties of care. Thus, this overly used three-fold system replaced the Anns^[3] test, which was not preventing the floodgate problems because considered too wide by judges. In my opinion, Caparo has had a negative impact on the judges’ perception of duty of care.

In this essay, I will firstly explain why the Caparo test does not represent an ideal of decision. Then, I will highlight why the vision in Michael v Chief Constable of South Wales^[4] represents a revolution for the duty system. To conclude, I will show the new approach it brings compared to previous cases such as Customs & Excise Commissioners v Barclays Bank^[5] and why we should return to it. 

The tripartite test elaborated by Lord Bridge in Caparo has been very controversial since its creation. The second limb of the test is often considered too vague to give a real meaning to the proximity concept. Indeed, his Lordship expressly stated that ‘the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical test’^[6]. In this sentence, his Lordship wanted to show that his test could not be considered as a general test for every lawsuit, but rather as an incremental advancement of the law in this precise case. This is what Lord Nicholls clearly shows in Stovin v Wise^[7], saying that both of those concepts should not be separated and that ‘when assessing the requirement of fairness and reasonableness, regard must be had to the relationship between the parties’. In essence, considerations of proximity should not prevail and be distinguishable from those of fairness, justice and reasonableness. They are yet another means by which judges express matters of policy, because policy concerns warrant a general rule of no liability in the area of question. Thus, the third limb of the test should not only ask if the imposition of a duty of care would be for the greater good of society, but also if this reliance is humanly and morally important. 

We can therefore say that the blurriness of the three-fold-test is largely due to the vagueness of policy considerations and proximity, which undermines the decision of the judges^[8]. This can be seen throughout the Hill principle, which is largely considered when the third part of the test is examined. 

This principle arose in Hill v Chief Constable of West Yorkshire^[9] where the police took too much time to arrest a serial killer. In Lord Keith opinion, there was no duty of care against the police because it would be against the public interest to sue the police. Indeed, in his Lordship perception, making the police liable could undermine future investigations and their endeavour to keep the society safe. Henceforward, they would exercise their jobs in a negative and defensive frame of mind. Lord Keith raised out the issue of public policy concerns to protect the police in cases of omission. By doing this, he posited that police would have a blank immunity against other individuals, even when they failed to prevent foreseeable crimes from a third party. This principle was subsequently applied in several cases of omissions. Smith v Chief Constable of Sussex^[10] and Brooks v Metropolitan Police Comissioner^[11] represent the archetype of cases where police were in fault and breached the article 2 of the European Convention on Human Rights, which imposes an obligation on the State to protect the right to life. In the two cases, the police failed to protect the two individuals, leading to the murder of one and psychiatric injuries of the other. Even though a real proximity existed between the parties in the two cases (both of them had previously talked to the police before the events), the police which seemed at fault, did not owe a duty of care to the victims, because not considered as ‘fair, just and reasonable’ under the third Caparo evaluation in view of policy considerations. 

Michael^[12], a case where police negligently failed to protect against prolonged threats of extreme violence by an ex-partner, does represent a big change in the tort law domain because it is one the first cases in the UK where judges started to be critical and to understand the flaws of the Caparo test. Lord Kerr feels that the test is excessively used by practitioners without letting them think about the real characteristics of the precise case. These latter therefore judge without digging deep in the reasoning of the case, and broadly adapt the test for all kind of torts. Lord Kerr continues his criticism by showing implicitly that in some novel cases, criterions which were new to this specific area of torts as such as in South Pacific Manufacturing v New Zealand Security^[13], showed the limit of the Caparo test, which was not used by the New Zealand Supreme Court.  In this particular case, it was stated that the ‘assessment of proximity is directly linked with considerations of justice between the two parties’^[14]. This statement clearly recalls Lord Nicholls sayings, which alleged the importance of mixing proximity and policies allegations. Furthermore, Brown Wilkinson J states in Coral Leisure Group Ltd v Barnett^[15] that the assessment of what is fair, just and reasonable cannot be considered on fixed policies. Throughout his indictment, Lord Kerr clearly shows for the first time the misinterpretation of the test by the British judicial body, which Lord Bridge himself wanted to avoid when he firstly stated it in Caparo. 

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