The Test for the Duty of Care Caparo and beyond: This week we looked at the application of the

e various elements of the test as stated in Caparo. Here are some of the quotes I referred to. There is more detail on the powerpoint slides also posted on blackboard. Caparo Industries plc v Dickman [1990] UKHL 2 1. Foreseeability 2. Proximity Persistently defies definition Lord Oliver, Murphy v Brentwood DC 1990 There is a duty of care where there is proximity, and proximity means that the facts give rise to a duty of care Martin (1991) 7 PN 37,38 3. Is it just, fair and reasonable to impose a duty? .depends ultimately on the courts assessment of the demands of society for protection from the carelessness of others. Lord Pearce: Hedley Byrne v Heller 1964 but re the test generally: 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. per Brennan J in Sutherland Shire Council v Heyman [1985] What kinds of consideration have fallen under the 3rd stage? 1. The floodgates argument: We looked at the application of this in relation to claims for Psychiatric Harm Dulieu v White [1901] 2 KB 669 Hambrook v Stokes Bros [1925] 1 KB 141 Bourhill v Young 1943 AC 92 Chadwick v BRB (1967) 2 AllER 945 McLoughlin v OBrian [1982] 2 All ER 298 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, [1991] 4 All ER 90 See Liability for Psychiatric Illness Law Com No 249 (1998) for suggestions for reform. a uniform refusal to provide compensation for psychiatric injury at least provides a rule which is easy to understand and cheap to administer. L Hoffman in White v CC for S Yorkshire 1999 Consider cases concerning claims by public bodies (eg the police) which are also claims for nervous shock. We will look at the liability of public authorities in more detail next week. White v Chief Constable of South Yorkshire [1999] 1 All ER 1 2. Defensive practices argument

Here we looked at the example of Police Liability See: Lord Keith in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 & then Osman v Ferguson [1993] 4 All ER 344) Then consider: Osman v UK [1999] 1 FLR 193 Z v UK (2002) 34 EHRR 3 3. When another cause of action exists Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 Simaan General Contracting Co v Pilkington Glass Ltd [1988] QB 758 A shift in attitude and a positive use of Policy? Spring v Guardian Assurance plc and others [1994] IRLR 460 HL White v Jones, [1995] 1 All ER 691 The policy issue where to draw the line is not justiciable. The problem is one of social, economic, and financial policy. The considerations relevant to a decision are not such as to be capable of being handled within the limits of the forensic process. Lord Scarman in McLoughlin v OBrien 1988 Consider the following articles in the context of the above. They deal with the development of the test for the duty of care up until Spring. Please note that whilst they are written by your Course Director and a Professor from the Law School, they were written some time ago and so elements of the analysis may be out of date. Greenfield and Osborn, Liability for references: when is the kiss of death just, fair and reasonable?, PN, Vol 10, No 1., 1994. Greenfield and Osborn, A new dawn for negligence? PN, Vol 11, No 2., 1995 Osborn and Sutton, Of new orders and new dawns: freewheeling returns to negligence? PN, Vol 12, No 1, 1996 As these are not available on line we have posted PDF files for each here on blackboard. Tutorial on Duty of Care: This tutorial revisits some of the cases that you have looked at over these past two weeks. You will be asked to consider the cases and the detail of the reasoning, and the general trends that they represent and the importance of these. The articles above may give you some context on which to base this. You will be looking at more recent and specific developments in negligence next week in the lecture in relation to particular categories of cases, including omissions, the treatment of rescuers and public bodies.