LAW-NOTES-SHARING-MOMENT (TORT : DUTY OF CARE : CAPARO's TEST)
HI guys...
wanna update this post with a lot of self-opinion & summarized notes...
hope u guys can used it up for your coming law journey or whatsoever...
JUST WANNA SHARE THIS NOTES SO THAT IT CAN HELP U GUYS IN GETTING STARTED TO KNOW SOME BASIC PRINCIPLE IN THOSE FOLLOWING LAW's FIELD...
WHATEVER IT'S BOOKS SEEM TO BE THE BEST SOURCES TO BE RELIED ON RATHER THAN BLOG & WHATSOEVER....
*If u know what i mean :)
TORT : DUTY OF CARE : CAPARO's TEST
Caparo Test
Despite the efforts to reduce
fears of the floodgates, the Anns
test was still considered too wide. In Caparo, the House of Lords overruled Anns and went back to the incremental approach whereby the
claimant may only bring their action where they can establish an
existing duty situation. In novel situations, the question of whether a duty of
care arises is now subject to the Caparo test.
Caparo Industries v Dickman[1] is currently the leading
case on duty of care. The defendants (D) are the auditors of company accounts. Caparo,
the plaintiff (P) bought shares and then discovered that the accounts did not
show that the company had been making a loss. The loss suffered was economic as
a result of a negligent statement. P alleged that in negligence a duty was owed
by the D to P. However, the House of Lords decided that D was not liable. The
House of Lords established that while it is foreseeable that investors may use
published accounts to make investment decisions, the accountants who produced
such accounts would not be liable for losses as a result of the accounts being
wrong. This is because there is no sufficient proximity between the accountants
and, effectively, anyone at all who may rely upon them.
Lord Bridge has set out a three tier test which must be satisfied
in order for there to be a duty of care. Under the Caparo test the claimant must establish
that:
1.
It
was reasonably foreseeable that a person in the claimant’s position would be
injured,
2.
There
was sufficient proximity (closeness) between the parties,
3.
It
is fair, just and reasonable to impose liability on the defendant.
All parts of the test must be
satisfied if there is to be a duty of care owed by the defendant to the
claimant. It can be seen that the first two parts of "proximity" and
"foreseeability" are merely objective tests that rely on the facts
alone. In fact, they are taken directly from the original neighbour test. The
third part of the test, whether it is fair, just and reasonable to impose a
duty of care is really a matter of public policy. It relates to the same policy
considerations under the Anns
test. In fact the Caparo test contains the same elements
as Anns. The
main difference is that under Caparo it
is the claimant that must put forward policy reasons for imposing liability
whereas under Anns,
liability would arise once the claimant had established reasonable foresight
and proximity and the defendant had to demonstrate policy factors for
negating liability.
The phrase "fair, just and
reasonable" is fairly ambiguous within a legal context. Due to this
ambiguity it is down to the individual judge's interpretation of what these
terms means, and thus within this category of the Caparo test there is a large
amount of judicial discretion.
Two alternative uses for the policy argument have developed since Caparo, the first being the traditional use from Anns where the fairness of a duty was used as grounds to deny it. Secondly, the new "positive usage" used to "ground the imposition of a duty of care". This extension of the scope shows how although judicial discretion cannot do much to change the main test, it can be used to change the elements of the test
Two alternative uses for the policy argument have developed since Caparo, the first being the traditional use from Anns where the fairness of a duty was used as grounds to deny it. Secondly, the new "positive usage" used to "ground the imposition of a duty of care". This extension of the scope shows how although judicial discretion cannot do much to change the main test, it can be used to change the elements of the test
For instance, the courts are usually
reluctant to impose a duty on public authorities, as seen in the case of Hill v Chief Constable of West Yorkshire[2]. D, the police failed to catch the
"Yorkshire Ripper". P, the mother of the late 13th victim
sued the police for negligence alleging inefficiency and errors in their
handling of the investigation. The House of Lords held that the police owed no
duty of care towards the daughter to protect her from the Ripper. It was
pointed out that imposing a duty on police could lead to policing being carried
out in a defensive way which would divert attention away from the suppression of
crime, leading to lower standards of policing, not higher ones. This is an
example of the traditional negative usage of the test, being used to deny the
existence of a duty of care.
However, in some circumstances the
police do owe a duty of care. In the case Reeves v Commissioner
of Police of the Metropolis[3] the police took a man into custody
who was a prisoner known to be at risk of committing suicide. Whilst in custody
he hanged himself in his cell. The court found that the police owed him a duty
of care.
An example of a positive usage of the
just and reasonable test is shown in cases involving members of the legal
profession, where it seems reasons other than proximity and foreseeability were
needed to justify an imposition of a duty. In White v Jones[4]
the daughters of a testator sued the defendant solicitor for negligently
failing to draw up a new will before their father died, which would have named
them as beneficiaries. Generally courts do not wish to impose liability in
cases of nonfeasance even if the elements of proximity and foreseeability were
present as they were in this case. In this case, Lord Goff said a duty should be
imposed because without the test of policy the two worthy beneficiaries would
be at a loss and unable to claim, and the only person who could claim is the
deceased father who had no loss. So while it must be noted that there is
discretion within the Caparo test, it must not be though to undermine the test,
it enhances it and makes sure that the correct decisions can be made despite
the presence of foreseeability and proximity which under Anns were sufficient.
In my view, the uses of Caparo test is
more beneficial and a stronger method to achieve justice, than simply applying
the vast ‘neighbour principle' to every situation. Donoghue has received
considerable support in subsequent cases and marked a dramatic change in the
law. It also provided the first general test for duty in negligence.
Nevertheless the main issue appears to be that; “it is incorrect to place too
great an emphasis on any one” approach and furthermore in rare cases no
recognized test is followed. This shows that in reality policy considerations
and judicial discretion overrule generality. The tests for duty are therefore
not a shroud for judicial discretion, but are in fact a means for accommodating
judicial discretion and controlling it to an extent. And this element of
discretion is the most valuable aspect for the Caparo test, for making sure
that duty will not be imposed if it is unjust to do so, even if the tests of
foreseeability and proximity are established, or for giving extra weight to an argument
for imposing a duty.
1.
Existence of a duty. Retrieved from http://www.ukessays.com/essays/law/existence-of-a-duty.php
2.
E-lawresources.
Duty of care. Retrieved from http://www.e-lawresources.co.uk/Duty-of-care.php
3. Hussain,
D. (2009). Notes on Tort of Negligence.
Retrieved from http://home.loxfordlaw.co.uk/unit2/notes-on-tort-of-negligence
4. Jepson,
P. Tort Cases. Retrieved from http://www.peterjepson.com/law/tort_cases.htm#Caparo
v Dickman (1990)
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