Establishing The Duty Of Care Using The Caparo Test

Establishing whether or not there is a duty of care towards a given action is one of three crucial elements in indicating liability for damages arising from negligence, in addition to the requirements of breaching the duty and direct causation between the tortfeasor’s action and the damage suffered by the claimant. The courts have had a challenging balancing act of allowing those who have incurred a loss resulting from an act of negligence versus preventing a flood of litigation against from liabilities arising in ‘indeterminate amounts’ for ‘indeterminate periods of time’ to an ‘indeterminate class’ (in Ultramares v Touche per Cardozo CJ). Although fully recognising that more modern approach of the English courts, acknowledging duties arising in specific instances of omissions, for sake of clarity, duty as a concept shall be examined in the eyes of acts alone. In considering the efficacy of the Caparo test, one ought to evaluate the overall function of tort law, whether it be to simply correct a wrong between dissenting parties through a remedy or, perhaps, if it plays a more pivotal role in cost-based efficiency judgements across wider society. It would also make sense to highlight that what is currently in place is a fault-based liability system, where the tortfeasor is able to act as they please, but if they act negligently (decided whether they fall short of how a ‘reasonable person’ would act in a similar situation), then they must compensate for such. There has been varying critique about how effective this model is in fulfilling whatever one views as the role of tort law, and whether we should move to a more strict liability-based approach. On one hand, it does not seek to punish but to chiefly compensate those who have suffered a loss of some kind, however, on grounds of policy it wouldn’t make practical or economical sense to widen the scope of liability further than it already is. Should it remain up to the courts to establish whether a duty of care arises, or, should it be left in the hands of the tortfeasors?

Duty of care as a concept arose from decades of case law both in the UK and across the Atlantic which indicated the lack of clarity in judicial approaches to dealing with negligence claims. The prevailing test set out in Caparo v Dickman encompasses these cases which have wrestled between the approaches of corrective justice and more economic efficiency. The first horn of the rule is that the harm resulting from the defendant’s conduct must be reasonably foreseeable, a nod to the previously presiding ‘Neighbourhood Principle’ from Donoghue v Stevenson as per Lord Atkin. Foreseeability of harm could be considered in light with an economic approach to tort, which as an area of law deals with damages, thus having significant economic implications. The aim of tort law, in the words of the eminent Calabresi (The Costs of Accidents, 1970), is to minimise the social costs of a tort as a means of incentivising individuals to engage in safer activities and to encourage individuals to make activities safer. On the theory that one could always prevent an accident, the standard of care could be increased slightly; with regards to Donoghue, the likelihood of the ginger beer having been contaminated by any means, in this case by a snail, is pretty slim. Despite it being in society’s best interest to safeguard consumers from every risk imaginable, it isn’t an optimal use of resources. Fundamentally, it comes down to balancing costs and benefits. Using the Hand rule (coined by Judge Learned Hand), formalised in algebraic terms, an act is in breach of a duty of care where the product of ‘P’ (probability of loss) and ‘L’ (gravity of loss) is greater than ‘B’ (cost of taking precautions). In this case, the sum of the taking extra precautionary measure is greater than the product of the probability and gravity of loss. The likelihood of a decomposed snail ending up in a sealed bottle and served to a customer is more unlikely than not; albeit harsh, imposing a legal duty to take extra care on a manufacturer to owe to society at large is costly and non sequitur, as per Cardozo, it would open the floodgates to claims in negligence.

Proximity is the second element of the test, understood in broader terms to signify the degree of connection between the parties and whether or not a duty ought to be imposed. Bourhill v Young is a prime example of what could happen if the ‘floodgates’ were to open. The motorist was found to not owe a duty to the claimant who witnessed the aftermath of a fatal road collision as it was not foreseeable to the motorist that having driven negligently might have caused her to suffer a stillbirth after having seen the accident from the other side of the road. According to Epstein, an individual is to be found prima facie liable for any injury that they cause, criticising the current fault-based model as giving too much power to the courts to decide on matters of human liberty. This is reinforced by the example of the ‘Good Samaritan’, which under English law is not an imposed legal duty per se. He argues that this runs inconsistent with the logic of the negligence system, showing it to be wrong. Backtracking to the Hand rule, it would make efficient sense for the tortfeasor to take extra care where if ‘B’ decreases the likelihood of ‘P’ and ‘L’, then the product of ‘PL’ would be less than the sum of ‘B’, surely incentivising the tortfeasor to incur the lesser cost of taking extra precaution in order to avoid the greater cost of the accident and litigation, ergo, increasing overall economic efficiency. As a matter of fact, however, adherence to the strict liability rule would require individuals to bear liability over accidents that aren’t directly their fault. Coleman illustrates the distinction between the two criteria of fault-based judgements in relation to how one might raise a defence to them. A justification, for example, is given to establish the action in question, whereas an excuse is offered not to contest the failure to measure up, but instead to deny responsibility for it. This distinction demonstrates the two senses in which tortious liability can be imposed without regard to fault, hence liability is strict where it isn’t defeasible by an excuse. This could mean that say the defendant in Bourhill had some sort of condition which meant that they lacked the substantial capacity to meet the reasonable standard of care for operating a motorcycle, therefore imposing liability on someone who could not help how they behaved, widening the scope in terms of excusable conduct in relation to claims in negligence. An indeterminate scope for liability is problematic to a great extent, amongst the practical issue of courts having to deal with increased litigation (which goes against modern interpretations of the law as aiming to induce cost-effective care), it could go as far as infringing the rule of law.

To be fair, just and reasonable is the final requisite for imposing liability using Caparo, often simplified as being a matter of policy. The law of tort does not exist in a vacuum, it evolves and develops alongside emerging case law incrementally and by analogy alongside established societal authorities. Following the Hillsborough disaster, negligence claims were brought against the police in relation to secondary victims suffering psychiatric harm and nervous shock as a result of watching live coverage of the tragedy on television and the radio. In Alcock v Chief Constable of South Yorkshire Police, it was held on matters of policy that the duty of care owed by the police inside the stadium at the time of the incident did not extend to viewers tuning in to live coverage from home, albeit harsh, it was made with regards to growing social concerns over an ocean of claims within which the courts would not be able to cope with