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Logic in Liability: Defending a Duty of Care

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Today the practice and study of tort law is mainly concerned with ‘accidents’, usually occurring on the road or in the workplace. In order to assign liability, one has to consider who is legally responsible for these accidents. The difficulty in this is that it is hard to conceptualise a formula to answer this question that is both pragmatic and determinate. In order to assess where we have arrived with the liability rules in tort law, this article will consider two questions. Firstly, are the rules that govern the imposition of liability vague and ambiguous? Secondly, does the alleged indeterminacy leave tort law open to severe and justified criticism? Ultimately, the wider context of this debate leaves us to question whether tort law stands as a purely theoretical relic of English jurisprudence, or whether it is a robust and active branch of the law in modern society. 

Establishing A Duty of Care: Practical Principles or Vague Labels?

For Winfield, liability in tort arises from the breach of an obligation in law. One of the components of a negligence claim is that the defendant must owe the claimant a duty of care. Without the requisite duty of care, the claimant cannot impose liability for negligence on the defendant. The rules that govern the imposition of a duty of care, however, are vague and ambiguous. The House of Lords held in Caparo v Dickman that a duty of care could only be imposed on a defendant if three conditions were met:

  • the damage caused must have been foreseeable;
  • there must have been a relationship of proximity between the claimant and defendant;
  • the imposition of liability must be just, fair and reasonable.

Lord Bridge himself noted in the case that justice, fairness and reasonableness are concepts that are not “susceptible of any such precise definition as would be necessary to give them utility as practical tests”.

Critically, the decision whether or not to impose a duty of care on a defendant is not a predictable decision. Indeed, different judges may differ on what elements contribute to the ‘justimposition of liability. This undermines the fairness of the law, because materially similar cases may be subject to differing interpretations and consequences depending on the bench of the day.

In relation to Lon Fuller’s conception of the rule of law, one may argue that the indeterminacy of the duty of care test conflicts with the need for clear and certain law. Although justice, fairness and reasonableness may give rise to a “detailed examination” of all the circumstances” of the case at hand, this fails to secure legal certainty for claimants and defendants.

Conversely, one may argue that the rules that govern the imposition of liability are flexible rather than completely indeterminate. By utilising labels such as “reasonable”, judges may actively and openly balance the interests of the parties at hand and society as a whole in order to pursue equitable outcomes. In Marc Rich, for example, the Court did not impose a duty of care on a surveyor because this could have severe consequences across society, such as increasing insurance costs. Significantly, such consequences may deter companies from fulfilling particular social needs, such as approving the seaworthiness of ships. The Government would be forced to adopt publically-funded departments to fulfill such needs. Moreover, Hart argues that such flexibility is useful; it enables the law to develop and evolve with society and social need. Indeed, in light of scientific and technological advances, one must ensure that the law of tort can continue to keep up with changing social patterns and paradigms.

Additionally, one may defend this flexibility because language is inherently ambiguous. It is particularly easy, therefore, to criticise the rules on the imposition of a duty of care because such rules will inevitably be broad in nature. It would be impossible to develop specific rules that sufficiently and precisely deal with particular circumstances; indeed, one may argue that the development of so many sets of rules would make tort law exceedingly complex. Hence, at a theoretical level, broad rules are advantageous because they can apply to a wide variety of circumstances and still ensure an element of consistency. According to Hart, language, although ambiguous, has a penumbra of doubt that ensures that the law can evolve and adapt to society and novel situations.  

Searching for “Salient Features”: The Ambiguous Australian Approach

As an alternative to hiding behind “convenient labels”, in the words of Lord Bridge, one may argue that the law should take a different approach. One may draw inspiration from the Commonwealth; Australia, for example, has eradicated the Caparo rules. In Sullivan v Moody , the Australian High Court abandoned Caparo for a “salient features” test. This means that the Australian courts must search for features that point to the existence of a duty of care. For Dworkin, such judicial activism responds to the concern that pragmatism causes a lack of openness and candour in common-law systems.

However, Jenny Steele has criticised the Australian approach for causing doctrinal chaos. The salient features test fails to secure legal certainty and predictability for claimants or defendants. What makes a particular feature salient? What weight should be attached to each feature? This test provides no guidance for judges to follow. Additionally, as the law of tort is prone to novel cases, the “salient features” test proves to be ill-equipped to determine the imposition of liability. The court must search for salient features rather than develop the law in conjunction with legal principles. This test relies heavily on judicial discretion, which leaves tort law hanging precariously in the hands of a judiciary that often faces criticism for its lack of diversity.

Moreover, domestic jurisprudence suggests that English courts have been less willing to allow a flood of unmeritorious, or ‘have a go, cases. The retraction of the Anns test in Murphy v Brentwood suggests that the rules governing the imposition of liability are not so wide so as to allow for any proposition to be successful. In Anns, Lord Wilberforce reduced the imposition of a duty of care to a two-stage test; firstly, whether there was a relationship of sufficient proximity between the claimant and defendant and, secondly, whether any considerations ought to negative, or to reduce or limit the scope of the duty of care. The second branch of the Anns test can be compared against the wide scope of the salient features test. The possibility of such an extensive range of interpretations undermines the utility of these tests when attempting to ascertain liability.

Criticising Tort Law and the Negligence Liability Rules

Thus far, this article has established that the imposition of a duty of care is an interpretive task due to the inherent ambiguities of language. Moreover, it has been seen that this flexibility can be useful in order to ensure that the law develops alongside society. Critically, however, to ‘give-up’ on the traditional doctrinal approach lacks any tangible advantage in tort law because it simply introduces an ‘ocean of liability, in the words of Jenny Steele. Consequently, this article must now consider whether this flexibility and indeterminacy leaves tort law open to severe and justifiable criticism.

In relation to the significance of the rule of law, one may argue that tort law should be criticised for being unpredictable and uncertain. As Kutz argues, the law should contain publicly available rules and standards that are capable of determining concrete outcomes. Arguably, therefore, the liability rules in relation to the imposition of a duty of care undermine the applicability of the rule of law in negligence claims.

Conversely, one might suggest that criticism of tort law is unjustified because the indeterminate nature of the liability rules enables judges to arrive ata just result by balancing the competing interests of the claimant, the defendant, and society. Strict, ‘black letterlegal rules may have questionable consequences in tort law, especially as more novel cases are brought before the courts. Moreover, one may question whether tort law should be criticised because, as Fish argues, even if tort law fails to fulfill the requirements of the rule of law, academics and practitioners alike are persuaded that negligence cases result in legitimate legal decisions. This suggests that, although ultimately without definition, the rules governing the imposition of a duty of care set precedents, thus constraining the development of the law. Advantageously, this ensures a level of consistency in negligence law.

However, one must question, whether this scepticism is convincing. Although many theorists would suggest that sceptical views are now the norm for tort lawyers, judicial decisions are accepted as legitimate decisions. Surely then, if tort law remains nothing more than a lottery for many, there would be strong concerns that judges were not applying legitimate law? As it has been shown, laws linguistic flexibility affords judge a wide berth for discretion. However, as an extensive range of precedents exist, this simple matter of interpretation is not entirely convincing. Which precedent should determine each case? In what way should the law develop in light of a novel case? The ability to exercise discretion is a very simplistic explanation. For Fish, judicial decisions are persuasive because judges engage in persuasive story telling. The story, however, has to have a certain formula; it must be plausible, taking into account materially relevant doctrine, and it must also appeal to ideals of tort law, such as corrective justice. In this way, one may argue that sceptical views of tort law are unjustified for two significant reasons. Firstly, sceptical views of tort law lack a certain robustness because, ultimately, judicial decisions in negligence cases are legitimate legal developments. Sceptical interpretations may be persuasive, therefore, but they appear to have very little practical relevance. Secondly, if one agrees with Fish, then one may argue that judges are merely engaging with the incremental development of the law with relevance to existing doctrine. Hence, such judicial activism merely develops the liability rules in conjunction with the purposes of tort law and social need.

Ultimately, the imposition of a duty of care is an interpretive task due to the inherent ambiguities of language. Criticism of tort law as an uncertain, unpredictable body of law may find support if one considers the requirements of the rule of law. However, the legal principles that have developed in relation to the imposition of a duty of care provide flexibility in the law. This enables the incremental development of tort law in order to meet changing social need. This development is not unconstrained, which provides for a level of consistency in negligence law.

Further Reading

Dworkin, Laws Empire, Harvard University Press, 1996

Fish, Theres No Such Thing as Free Speech and Its a Good Thing, Too, Oxford University Press, 1994

Hart, The Concept of Law, Oxford University Press, 1961

Kutz, Just Disagreement: Indeterminacy and Rationality in the Rule of Law, [1994] Yale Law Review V103 P998

Lon Fuller, The Morality of Law, Yale University Press, 1969

Steele, Scepticism and the Law of Negligence, The Cambridge Law Journal [1993] V52 I03 P437

Winfield, The Province of the Law of Tort, Cambridge University Press, 1931

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Tagged: Commercial Law, Tort Law

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