tort - question 2 (policy)

7/31/2019 TORT - Question 2 (Policy)

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There is no meaningful distinction between the second stage of the duty of care test as espoused by Lord

Wilberforce in Anns v Merton Borough and the just, fair and reasonable element of the duty test as set out in

Caparo Industries PLC v Dickman [1990] 2 A.C. 605.

Critically discuss.

While there is a distinct difference in the aim of the second stage of Anns test (to

limit duty) and the third-part (just fair and reasonable) in Caparo test (to achieve just,

fair and reasonable result), there is no meaningful distinction in the outcome.

Policy is certainly a necessary part of the entire process of ascertaining whether or not

there should be a duty of care. Common law is built on interconnected layers of

principles, universal and particular, each dependent on and interacting with the other,

held together by the overarching goal of fairness and justice. I must start with

Dworkin, who is concerned that legal reasoning in the courts (as opposed to the

deliberations of the legislature) is grounded solely on the grounds of principle, and

not policy. In this, he defended a conception of individual rights that is contrasted

with the policy that is grounded in a (quite contrasting) utilitarian worldview, the latter

of which is (in Dworkins view) only utilized justifiably by a legislature which has been

democratically elected by the people in the given society. Indeed, as I shall argue

below, Lord Wilberforces second stage in his Anns formulation is premised upon

communitarian concerns , although his first stage is not wholly inconsistent with

Dworkins individual rights theory by any means.

On the other hand, even if Dworkins argument from principles were accepted, a

limitation (along the lines of the second stage of Anns test) would still be required.

The presence of the first stage alone would result in far too wide an area of liability


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and might, on occasion, even suggest indeterminate liability. This is of course wholly

unworkable and control mechanisms are therefore of the essence. One must note that

invoking limitations based on policy (which is the very essence of the second stage of

Anns test and the third-part of Caparo test) would be not only desirable but also

necessary. One must also note that, the communitarian concerns of policy cannot be

divorced from the individual rights of the parties themselves (henceforth, the fair, just

and reasonable element of Caparo test). Indeed the very concept of tort law in

general and the duty of care in particular were developed in order to ensure in no

small measure that parties that do not have a pre-existing legal relationship with

each other (for example, by way of a contract) will nevertheless have recourse in

appropriate circumstances and consistent with prevailing societal mores and norms.

There is no meaningful distinction between the second stage of Wilberforces Ann Test

and the just, fair and reasonable element of the Caparo Three-part test.

The policy factors contain within the second stage of Anns formulation reflect the

significance of the wider communitarian interests. It is perhaps (due to) the relative

subjectivity and vagueness inherent in policy, that Lord Wilberforce limited policy

factors to the second stage after considering the legal conception of reasonable

foreseeability.

Cordozo


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To understand the

There are six identifiable formulations of the notion of duty since the landmark

decision in Donoghue v Stevenson [1923]:

The original Atkin Pure Foreseeability in Donoghue v Stevenson [1923] AC 563(at 580) the formulation of duty is based upon foreseeability of harm and this

original foreseeability basis is repeated twice as reasonable foreseeability and

as reasonable contemplation of likely harm.

Foreseeability construed as a matter of public policy as championed by LordDenning

o In Enderby Town Football Club Ltd v Foorball Association Ltd [1971] Ch591 (at 606) With a good man in the saddle, the unruly horse (public

policy) can be kept in control. It can leap the fences put p by fictions

and come down on the side of justice.

o In Spartan Steel & Alloys Ltd Martin & Co Ltd [19971] 3 All ER 557 (at561) Whenever the courts draw a line to make out the bounds of duty,

they do it as a matter of policy so as to limit the responsibility of the

defendant.

o In Dorset Yacht v Home Office [1969] 2 QB 412 (at 426) Court of AppealDuty is, I think at bottom a matter of public policy which we, as judges,

must resolve. This talk of duty or no duty is simply a way of limiting

the range of liability fo r negligence.


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Foreseeability construed as a matter that includes public policies in C.R.Symmons The Duty of Care in Negligence: Recently Expressed Policy Elements

(1971) 34 MLR 394 as a convenient faade behind which they could extend,

or restrict extension of, the existing categories of negligence In creating

notional duties of care in novel situation -patterns, the courts have been

accused of concealing the true judicial process by their reticence in articulating

underlying policy considerations and their almost inevitable resort to the vague

and facile test of reasonable foreseeability to determine this highly important

issue. Unarticulated, however, was the inclusion of policy factors in this

element of foreseeability. Few judges were as bold as Lord Denning in

determining the existence of duty solely on the basis of public policies . Many

of them imposed, restricted or excluded a duty of care on grounds of both

foreseeability, which was articulated, and public policy, which was not

articulated. In Bourhill v Young [1943] AC 92 HL, the test of liability for

nervous shock was foreseeability of injury by nervous shock. Was her claim

excluded on the ground that the shock to her, as a bystander, was uncommon

or unlikely and, therefore, unforeseeable? Or, was her claim disallowed, as a

matter of public policy, because she was claiming for a type of harm that was

mental in nature, which arose out of someone elses hys terical plight and which

was, therefore, less deserving and potentially more indeterminate than the

usual physical harm? It was unclear from the judgments of the HL whether her

nervous shock claim was exluded on the ground of lack of foreseeability of


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such harm or on public policy reasons. It is likely that the exclusion was based

on both grounds, although the policy factors were not articulated, the

foreseeability element here, therefore included policy considerations.

Foreseeability basis that is qualified by public policies as the Two-Stage Test ofLord Wilberforce in Anns v Merton London Borough Council[1978] AC 728.

One of the reasons why UK (and Malaysia) rejected Anns formunation lies in the

interpretation of the first stage. To the UK jurisdiction, the first limb is nothing

more than the purely factual conception of reasonable foreseeability. But

(throughout the commonwealth jurisdiction which embraced the MODIFIED

Anns formulation, notably Canada, New Zealand, Singapore and Hong Kong),

there is (at conceptual level) Anns formulation takes into account both the

individual relationship between the parties themselves as well as broader

communitarian concerns, and Lord Wilberforce keep the communitarian

concerns separate (as far as possible) from the analysis of the individual

relationship between the parties. In these commonwealth jurisdictions (apart

from UK and Malaysia) the first stage of the Anns formulation consists of a

legal conception of reasonable foreseeability or proximity (as opposed to the

purely factual conception of reasonable foreseeability) at least insofar as pure

economic losses is concerned. Indeed, these jurisdiction s has implicitly or

explicitly admit that the complementary concepts of reasonable reliance and

voluntary assumption of responsibility constitute the best and most practical

criteria for ascertaining whether there is proximity between the claimant and


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the defendant under the first limb. Moreover, it must be recognised that the

first and second stages of Anns formulation would inevitably interact with each

other at the level of application (as may be seen in the analysis of the case

developments within these commonwealth jurisdiction).

One has to note, up till this time, the requirement of proximity was not exactly

clear. (the second stage of Caparo test and Keiths test in Yuen Kun-Yeu marked

the departure from Anns) Though the language of proximity was used in Anns,

and indeed in Donoghue, it appears that Lord Wilberforce and (less clearly)

Lord Atkin, did not intend the term Proximity to add anything to the notion of

reasonable foreseeability (Deane J in Australian case also support this view). In

other words, to say that there was proximity between the claimant and

defendant was to say no more than that it was reasonably foreseeable that the

defendants carelessness could cause the claimant harm. As such, proximity

did not describe a burdle or requirement additional to the requirement of

reasonable foreseeability.

The second limb of Anns test is clearly based on policy. The immediate

problem that arises (at least under English law) is one that is encapsulated

within Dworkins views (and the doctrine of separation of power).

Public policy and societal standards and norms must be taken into account,

particularly in liability in negligence.

Foreseeability and proximity as in Yuen Kun-Yeu v Attorney-General of HongKong [1987] 2 All ER 705 (at 709) Lord Keith rejected the universality of the


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two-stage Anns test and introduced the two part test of foreseeability and

proximity in its place. The test introduces for the first time the element of

proximity. The difficulty in this test and, indeed, the test after this, is the

meaning of proximity.

o Australian High Court decision in Sutherland Shire Council v Heyman[1985] 157 C.L.R 424. Deane J judgment at 497-498 is illuminating (too

lengthy) the notion of closeness and nearness and embrace physical

proximity (space and time) between the person or property of the

plaintiff and the person or property of the defendant, circumstantial

proximity such as employer-employee and professional man and his

client, and causal proximity (closeness and directness) of the causal

connection or relationship between the particular act and the loss and

injury. Voluntary assumption of duty.

o House of Lords had also suggested that there is at least an overlapbetween the concept of proximity on the one hand and the other

element of just fair and reasonable on the other in Stovin v Wise [

o Lord Keith in Governors of the Peabody Donation Fund v Sir LindsayParkinson & Co. Ltd[1984] 3 All ER 529 (at 534)

o Lord Brandon in Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986]2 All ER 145 (at 153)

o Lord Bridge in Curran v Northern Ireland Co-ownership HousingAssociates Ltd[1987] 2 All ER 13 (at 17)


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o Undoubtedly, proximity (whatever its precise meaning) as something thatis by no means the same thing as foreseeability called for an incremental

development of liability in negligence. Proximity in the two-part (Keith)

test with its ambivalent meaning of either foreseeability, or policy, or

something narrower than foreseeability, is capable of being

misunderstood. The fear of a massive escalation of liability by the

inadequate consideration of constraining public policy factors under the

two-stage (Anns) test is understood (perhaps much exaggerated).

Professor Julius Stone pointed out (in his Precednet and Law (1985) 263-

265) that Deane Js proximity requirement threaten a further

proliferation of false issues and cross-purposes in this area and he felt

so strongly against his former students foreseeability and proximity

test that he had to remark regretfully that this new-fangled bifurcation

would submerge this whole area ofthe law in an ocean of raging chaos.

Three-part test of Caparo (which contain the new troublesome component ofproximity)

Dworkin focused on principle instead of policy insofar as judicial decisions are

concerned.


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R. M. Dworkin, Taking Rights Seriously, rev. ed. (Cambridge: Harvard University Press,

1978) esp chapter 2 and 4.

Dworkins position can be contrasted on G. C. Christie, The Uneasy Place of Principle

in Tort Law in D.G. Owen (ed) Philosophical Foundations of Tort Law (Oxford:

Clarendon Press, 1995) at 113-130.

The most oft-cited case-law which illustrates this contrast between principle on the

one hand and policy on the other is the decision of the House of Lords in McLoughlin

v OBrian [1983] 1 AC 410, where Lord Scarman adopts (at 430) the view closest to

that of Dworkin, whilst Lord Edmund Davies espoused a quite different view (at 428) .

Position of other commonwealth jurisdiction:

In South Pacific Manufacturing Co. Ltd. v New Zealand Security Consultants &Investigations Ltd. [19921 2 N.Z.L.R . 282, Cooke P. endorsed the view that courts

should approach the determination of the duty of care question in negligence

by adopting a general framework which focuses on two broad fields of inquiry,

which mirror the two-stage approach of Anns. The first concerns the degree of

proximity or relationship between the parties, which of course is not simply a

question of foreseeability of harm. The second focuses on whether there are

other policy considerations that tend to negative or restrict (or indeed

strengthen the existence of) the duty of care in the case at hand. Cooke P. in


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South Pacific took the view: "I am of the school of thought that has never

subscribed to that view (that the first stage of the Anns formulation creates a

prima facie presumption of a duty of care based simply on the reasonable

foresight of harm), largely because of Lord Wilberforce 's reference to a

sufficient relationship of proximity or neighbourhood It would be naive, and I

believe absurd and dangerous, to assert that a duty of care prima facie arises

whenever harm is reasonably foreseeable."

In general, the Canadian courts have favoured the "two stage test" in Anns(E.A.Cherniak and K.F. Stevens, "Two Steps Forward Or One Step Back? AnnsAt The

Crossroads in Canada" (1992) 20 Can. Bus. L.J. 164.). The Canadian courts have

generally taken the position that factual foreseeability alone is not sufficient.

In the most recent case of Cooper v. Hobart (2001) 206 D. L. R. (4 th ) 193, the

Supreme Court of Canada enunciated the criterion of foreseeability

supplemented by proximity. The Canadian courts, particularly in Cooper and

the earlier case ofCanadian National Railway Co. v. Norsk Pacific Steamship Co.

Ltd. (1992) 91 D. L. R. (4 th ) 289 have also taken pains to expound on the

meaning and concept of "proximity." It has been variously described as one

pertaining to the relationship between the claimant and the defendant as well

as one that exists between the negligent act and the loss. Moreover,

"proximity" has been linked with the notion of "policy" and is said to involve

factors of reliance, expectations and representations.


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In the broadest and least explicit, Lord Atkins neighbour principle in Donoghue v

Stevenson formulation of reasonably foresee and ought reasonably do not limit

necessary relationships with clarity. Even if reasonable foreseeability could be

ascertained with some precision, it would require a very peculiar piece of reasoning,

since it compels a judge to decide in retrospect what he could reasonably have

expected a defendant to have reasonably foreseen would be the result of his

contemplated act upon people who might be affected, and the defendant foreseen the

accident itself which, in most cases, he almost certainly did not or a different course

of action would probably have been pursued!

A close examination of the first stage of Anns formulation reveals that there are at

least two interpretations that can be adopted, and which are reflected in the literature

itself.

(1) The first interpretation is that this stage relates only to the very factual issueof reasonable foreseeability . D. Howarth Negligence After Murphy: Time to

Re-think (1991) 50 Cambridge L. J. 58. I like to mention in passing, C. Witting,


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"The Three-stage Test Abandoned in Australia or Not?" (2002) 118 Law Q. Rev.

214, where the concept of proximity is also viewed as being descript ive.

In this view, the enquiry is, is it reasonably foreseeable, having regard to the

facts that the defendant ought to have known that the claimant would have

suffered damage as a result of the defendants carelessness. The result of

adopting this approach, the first stage becomes wholly descriptive in nature,

the result is that we cannot look to it for any normative (or prescriptive)

guidance whatsoever.

In this approach, reasonable foreseeability in its most factual and lteral sense is

a threshold procedure which is so very necessary (and which has been

described as being undemanding in nature) that, without satisfying it, no

further investigation y the Court is indeed possible.

The UK jurisdiction adopted this view, therefore, the second stage could only

means that policy is use to limit the liability (it is very easy to find reasonable

foreseeability if one thinks long enough. Indeed, the first stage may not really

be stating anything at all, this is simply because such an approach would

necessarily be adopted in any even inasmuch as the court concerned would

regardless of the actual concept of duty of care adopted have to first decide

whether or not it was reasonably foreseeable on the established facts that the

claimant could have suffered damage as a result of the defendants

carelessness). This also explain why there is a surge in claims after Anns

formulation, which necessitate its abandonment subsequently.


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(2) The second approach interpret the first stage (of Anns) encompasses not only aliteral or factual conception of reasonable foreseeability but also a legal

conception as well . Other commonwealth jurisdictions see the concept of

proximity is encompassed too. The concept of proximity, whilst relevant to the

factual situation concerned itself, is clearly not (in and of itself) factual but is,

rather, legal in nature. In this second approach, the concept of proximity is, in

effect, a legal conception of reasonable foreseeability and can (despite its many

difficulties) thus aid possibly in the laying down of legal criteria as between the

parties themselves.

In Caparo, Lord Bridge (at 618) expressed the view that the concepts of proximity and

fairness are not susceptible of any such precise definition as wo uld be necessary to

give them utility as practical test, but amount in effect to little more than convenient

labels to attach to the features of different specific situations which, on a detailed

examination of all the circumstances, the law recognizes pragmatically as giving rise to

a duty of care of a given scope. and Lord Roskil (at 628) Phrases such as

foreseeability, proximity, neighbourhood, just and reasonable, fairness, voluntary

acceptance of risk, or voluntary assumption of responsibility will be found used from

time to time in the different cases such phrases are not precise definitions.

Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 also

said in the end, it has to be accepted that the concept of proximity is an artificial one


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which depends more upon the Courts perception of what is the reasonable area for

the imposition of liability than upon any loial process of an alogical deduction.

The concept of proximity appears to be this: that it is itself a control mechanism of

sorts and that it seeks to emphasise that the presence of mere reasonable

foreseeability in a factual sense constitutes too wide a field for liability, particularly in

the context of pure economic loss. The concept of proximity focuses on the closeness

of the relationship between the parties themselves. This must, in turn, entail that the

concept is necessarily legal as opposed to being facture in nature. If it is merely

factual in nature, then it becomes just an alternative method of stating the

requirement of reasonability foreseeability in a factual sense. This would, of course,

render the concept of proximity totally redundant.

What is the legal meaning of proximity? Merely to state that it is the laws (or the

courts) view of whether or not the relationship between the parties is sufficiently

close (which is the second approach) is hardly helpful.

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tort - question 2 (policy)

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