It is becoming increasingly clear that the three-fold test established in Caparo v Dickman does not provide an easy answer as to when a duty of care will be owed, but rather a set of fairly blunt tools. Discuss with reference to relevant case law.

The three-fold test established in Caparo Industries plc v Dickman1 is an approach detailed by the House of Lords to be adopted when attempting to determine whether a duty of care is owed based on the facts of particular cases. As the approach is merely a guide to inquiries into the existence of a duty, not a reliable test where a duty arises when all conditions are satisfied, it cannot be used for every single case in need of establishing a duty of care. This paper agrees that the test does not provide an easy answer to when such a duty is owed, but disagrees that it is a set of blunt tools.

In this approach, in order to find a duty of care owed, it must be established that it was reasonably foreseeable that damage to the claimant could be caused due to the defendant’s failure to take care; there was a relationship of proximity between the claimant and the defendant; it is fair, just and reasonable that the law should recognize a duty on the defendant to take reasonable care not to cause damage to the claimant.2 These rules are made up of phrases that lack precision and give little information on when a duty of care will arise or how courts should go about determining when they will arise. Very different factual situations can exist in particular cases and the requirements must be carefully examined in each case before it can be pragmatically determined if a duty of care exists. The test is a return to a ‘more traditional categorization of different specific situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes’.3 It is different from the position taken in Donoghue v Stevenson4 and Anns v Merton LBC5 where foreseeability of damage was sufficient to raise a prima facie duty of care, negated only where public policy considerations militated against such a duty.

There are many examples of cases where courts have drawn upon the three requirements, which served as helpful and convenient approaches to the pragmatic question whether duty of care should be imposed. In Ephraim v Newham LBC6, the Court of Appeal used the ‘fair, just and reasonable’ criterion to reject the claim of a tenant who had relied upon the advice of defendants in obtaining accommodation and who, acting upon their advice, obtained accommodation in a house that lacked proper fire escapes. The claimant was subsequently seriously injured in a fire. Under the Housing Act 19857, the local authority had a mere power, not a duty to

1 Caparo Industries plc v Dickman [1990] UKHL 22 K Horsey & E Rackley, Tort Law (2nd, OUP, Oxford 2011) 623 Caparo Industries plc v Dickman [1990] UKHL 2 (618)4 Donoghue v Stevenson [1932] UKHL 1005 Anns v Merton London Borough Council [1978] AC 7286 Ephraim v Newham London Borough Council [1993] 25 HLR 2087 Housing Act 1985

require the necessary works to be carried out by the landlord. Thus, it was held that there was no duty of care in negligence.

In Barrett v London Borough of Enfield8, the claimant was taken into care at the age of 10 months into the defendant’s care and remained in care until aged 17. Due to poor foster home placements and arrangements with social workers, he left care without family or attachments and was suffering from a psychiatric illness. In applying the three-part test, foreseeability and proximity were plainly satisfied on the facts alleged, it was the third requirement of ‘fair, just and reasonable’ that was not satisfied. The Master of the Rolls held that it would not be just and reasonable to impose a duty of care on a local authority for the careless exercise of the statutory discretions applicable to children in care.

In White v Jones9, the defendant was instructed to draw up a new will to replace a former one. The new will had not been drafted by the time the testator died and the daughters who were beneficiaries under the new will, unlike the old one, mounted an action in negligence. The foreseeability of the daughters’ loss was not held to be in question. In terms of proximity, it was recognized that the solicitor’s assumption of a responsibility to draft a replacement will was sufficient to create a relationship of proximity between the two parties. For the ‘fair, just and reasonable’ limb of the test, Lord Goff noted four reasons why a duty should be imposed, justifying the creation of a new duty situation. This case is an example where a breach is actually held through use of the test.

The most recent case where the three-fold test was used is Everett & Anor v Comojo (UK) Ltd10. In this case, the Court of Appeal held that firstly, the proximity of the relationship between the management of a nightclub and its guests was sufficient to justify the imposition of a duty of care. There were two reasons: licensees have control over access to their premises, and they depend upon attracting customers for their economic success. Secondly, it was a foreseeable risk that one guest would assault another, due to the consumption of alcohol in the premises. Lastly, while there was accordingly a duty of care owed by management of a nightclub for the actions of third parties on its premises, the scope and standard of that particular duty of care had to be just, fair and reasonable in the circumstances. The Court held that as between the nightclub management and its guests, there should not be a higher degree of foreseeability than is required following the Occupiers’ Liability Act 1957.11 Under which, management could be liable to a guest who tripped over a worn carpet, making it unreasonable for them to escape liability for injuries inflicted by a fellow guest who was a foreseeable danger. Although it was ruled that there was no breach due to the particular circumstances of the case, and

8 Barrett v London Borough of Enfield [1999] UKHL 259 White v Jones [1995] 2 AC 20710 Everett & Anor v Comojo (UK) Ltd [2011] EWCA Civ 1311 Occupiers’ Liability Act 1957

that it is impossible to give specific guidelines as to the circumstances in which liability will arise, such a duty is now established.12

The tests set down in Caparo is ambiguous and its ambiguity is recognized by Lord Roskill in the judgment. However, in practice, the majority of cases have a clear, relevant precedent that can be followed and do not require the Caparo test to establish duty of care. In addition, certain situations are actually governed by more exact tests than those set down in Caparo. For example, in the area of psychiatric injury, courts and judges will look to cases like Alcock v Chief Constable of South Yorkshire Police13 or Page v Smith14 instead of using the three-fold test in order to answer the duty of care question. The Caparo test is only required in novel duty situations, like in Everett & Anor v Comojo (UK) Ltd mentioned above, or Marc Rich & Co AG v Bishop Rock Marine Co Ltd.15 As such it is very rare that the courts actually have to weigh up the relevant factors without any precedent.

In conclusion, the three-part test does not indeed provide a clear and easy answer to all questions regarding the existence of a duty of care. This is due to the fact that the test exists as more of framework or guideline to be used only in a small minority of cases, where courts are asked to determine whether new categories of claim should be recognized. The requirements in the Caparo test are not ‘blunt tools’ because the phrases of the requirements themselves are not precise definitions but labels which are meant to be carefully examined in each individual case to determine the existence of a duty of care.

[1377 Words]

12 S Butler & C Urquhurt, 'Serving Up Trouble: A Novel Duty of Care' [2011] NLJ , 23613 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 31014 Page v Smith[1996] 1 AC 15515 Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 212

Bibliography:

Cases

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310Anns v Merton London Borough Council [1978] AC 728Barrett v London Borough of Enfield [1999] UKHL 25Caparo Industries plc v Dickman [1990] UKHL 2Donoghue v Stevenson [1932] UKHL 100Ephraim v Newham London Borough Council [1993] 25 HLR 208Everett & Anor v Comojo (UK) Ltd [2011] EWCA Civ 13Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 212Page v Smith[1996] 1 AC 155White v Jones [1995] 2 AC 207

Legislation

Housing Act 1985Occupiers’ Liability Act 1957

Books, Articles

J Murphy & C Witting, Street on Torts (13th, OUP, Oxford 2012)K Horsey & E Rackley, Tort Law (2nd, OUP, Oxford 2011)M Lunney & K Oliphan, Tort Law: Text and Materials (3rd, OUP, Oxford 2007)V Harpwood, Modern Tort Law (5th, Routledge-Cavendish, London 2003)

J Murphy, 'Expectation Losses, Negligent Omissions and the Tortious Duty of Care' [1996] CLJ 43, 55R Mullender, 'The Scampering Discourse of Negligence Law' [2010] JJS Butler & C Urquhurt, 'Serving Up Trouble: A Novel Duty of Care' [2011] NLJ , 236