Q&A Torts

Birju Kotecha

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317673729
• Edition: 11
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Routledge Q&As give you the tools to practice and refine your exam technique, showing you how to apply your knowledge to maximum effect in an exam situation. Each book contains up to fifty essay and problem-based questions on the most commonly examined topics, complete with expert guidance and fully worked model answers.

These books provide you with the skills you need for your exams by:

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• Helping you to be prepared: each title in the series has an introduction presenting carefully tailored advice on how to approach assessment for your subject

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• Showing you what examiners are looking for: each question is annotated with both a short overview on how to approach your answer, as well as footnoted commentary that demonstrate how model answers meet marking criteria

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• Offering pointers on how to gain marks, as well as what common errors could lose them: 'Aim Higher' and 'Common Pitfalls' offer crucial guidance throughout

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• Helping you to understand and remember the law: diagrams for each answer work to illuminate difficult legal principles and provide overviews of how model answers are structured

Books in the series are also supported by a Companion Website that offers online essay-writing tutorials, podcasts, bonus Q&As and multiple-choice questions to help you focus your revision more effectively.

1	Negligence – Duty of Care Generally and Economic Loss

INTRODUCTION

Please note the first four chapters are all concerned primarily with the tort of common law negligence. They are divided into chapters for the purpose of clarity with different areas emphasised. However as you will know by now the concepts of duty, breach, causation and the general defences all form key components of forming liability in the law of negligence. Therefore the coverage of the answers will, to a greater or lesser degree, be duplicated in many of the first 14 questions in this book.

Questions solely on duty of care, however, usually take the form of an essay, typically on the test for imposing a duty. It is important therefore that you are aware of the stages of its development. It is also vital to be thoroughly familiar with situations in which limits are placed on whether a duty of care will exist. This chapter will include coverage of such limitations that are found within the area of negligent misstatement and economic loss, through the form of three essay questions and two problem questions. The second chapter will consider limits posed on the existence of a duty of care when considering recovery for psychiatric injury, the liability of the emergency services as well as the policy implications of the ‘compensation culture’ phenomena.

Checklist

Students must be familiar with the following areas:

(a) the development of a test for ascertaining the existence of a duty of care;

(b) negligent misstatement:

statements made to a known recipient and the special relationship;

statements put into general circulation;

(c) economic loss:

liability for negligent acts or statements;

the decision in Junior Books v Veitchi (1983);

the decision in Hedley Byrne v Heller (1964);

the judicial retreat from Junior Books;

the current position regarding economic loss.

QUESTION 1

‘Although the decision of the House of Lords in Anns v Merton London Borough Council (1978) was welcomed as a rationalisation of the law, it is now regarded as too simplistic and the so-called “incremental” approach is now universally used to determine the existence of a duty of care.’

◗ Discuss this statement.

How to Read this Question

The question takes the form of a typical essay question by providing a quote which will require a critical discussion. The examiner is looking for a consideration of the development from Anns to the new incremental approach and whether this is more effective than the Anns test. There needs to be a discussion of the relationship/differences between the current incremental approach and the test in Anns, i.e. is Anns incorporated into our current approach or is the test distinct. As implied in the question, the examiner is looking for a thorough understanding of the duty of care element as it is today.

How to Answer this Question

The following points need to be discussed:

a brief background to Anns v Merton London Borough Council (1978);

the Anns test;

the judicial retreat from Anns;

the current approach of the courts based on Caparo v Dickman (1990).

Answer Structure

Up for Debate

The test in Anns is often taken to be a controversial development and seen as a starting point for the expansion of liability in negligence. The existence of a duty of care often reflects many of the core policy aims of tort, and many view the duty of care threshold as a control device to restrict floods of claims. This was a risk created in the era of Anns. Two articles that consider fundamental questions about the concept of a duty of care and the many judicial developments that have shaped its modern relevance are N McBride, ‘Duties of care: do they really exist?’ (2004) 24(3) Oxford Journal of Legal Studies 417 and K Stanton, ‘The neighbour principle in the 21st century: yesterday’s revolution’ (2012) 20(2) Tort Law Review 61.

ANSWER

Although an attempt to formulate a general test or principle to decide whether, in any particular circumstances, a duty of care arose was made in Heaven v Pender (1883), it was not until 1932 and the judgment of Lord Atkin in Donoghue v Stevenson that the neighbour principle was firmly established. The courts were for some time a little hesitant in applying the neighbour test broadly until Home Office v Dorset Yacht (1970), where Lord Reid stated that the neighbour test was a statement of principle and should be applied as a working presumption. Proceeding from this, Lord Wilberforce, in Anns v Merton London Borough Council (1978), developed the principle arguing that the questions to ask are: First, is there a sufficient relationship of proximity of neighbourhood between the wrongdoer and the person who has suffered damage such that, in the reasonable contemplation of the former, carelessness on his part may cause damage to the latter, in which case a prima facie duty of care arises? Second, are there any considerations that ought to limit the scope of the duty or the class of persons to whom it is owed or the damage to which a breach of it may give rise? Thus, Anns neatly rationalised the law regarding the imposition of a duty of care by essentially stating that Donoghue applied unless there was a legal reason to disapply or modify Donoghue.¹

However, the courts came to realise that the imposition of a duty of care involved more complex considerations. Thus, in Junior Books v Veitchi (1983), the House of Lords held that liability could arise in respect of economic loss; in McLoughlin v O’Brian (1983), the House limited the scope of psychiatric injury recovery. From 1985 onwards, perhaps fearing the rapid expansion of a liability culture, the courts began to retreat from Anns approach.²

The starting point was Peabody Donation Fund v Sir Lindsay Parkinson (1985). Lord Keith stated that the Anns test was not of ‘a definitive character’ and that, although a relationship of proximity must exist before a duty of care can arise, the existence of duty must depend on the circumstances of the case and whether it is just and reasonable to impose a duty. Further criticism was to be found in Leigh and Sillavan v Aliakmon Shipping, both in the Court of Appeal (1985) and the House of Lords (1988). Oliver LJ, in the Court of Appeal, stated that Anns did not establish a new test applicable in all cases, nor did it enable the court to determine policy in each case. The fear was that the first tier is so easily satisfied that it leaves too much to the second tier – namely, policy. The criticisms continued in Curran v Northern Ireland Co-Ownership Housing Association (1987) where Lord Bridge approved the judgment of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985), in which he had held that it was preferable to develop novel categories of negligence incrementally and by analogy.

The two-tier test was again criticised in Yuen Kun-Yeu v AG of Hong Kong (1988) by the Privy Council and by the House of Lords in Hill v Chief Constable of West Yorkshire (1989) and Murphy v Brentwood District Council (1990). The incremental approach was finally affirmed in Caparo Industries plc v Dickman (1990) as involving the consideration of three factors: the loss must be reasonably foreseeable; there must be a relationship of proximity between the claimant and the defendant; it must be fair, just and reasonable to impose a duty of care. Recently, and to highlight the flexible approach the House of Lords has warned against too literal an application of the tests (Customs & Excise v Barclays Bank (2006)).

The first factor merely states that harm must be reasonably foreseeable, i.e. by a reasonable person in the position of the def...