Judicial Precedent: The Cases Of Michael [2015], Robinson [2018] And James-Bowen [2018]

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The conflict between different approaches to determine whether a defendant owes a claimant a duty of care has long been debated. Over the years, the courts have moved between ‘traditional’ approaches and different generalised tests, trying to find one common ‘test’ that can be applied to all cases when determining a duty of care. Whether such a test can even exist has also been debated, most recently in the cases of Michael [2015] , Robinson [2018] and James-Bowen [2018] , in which the judges argue for no test at all. To understand what these cases mean for the duty of care test going forward, however, it is important first to understand the historical, legal and contextual background of the duty of care tests.

In Heaven v Pender [1883], Brett MR determined that a duty of care arises when the defendant was in a position that “every one of ordinary sense” would recognise that, if they were not to use “ordinary care and skill in [their] own conduct,” they would “cause danger or injury” to the other person or their property. Following this, Donoghue v Stevenson [1932] established the ‘neighbour principle’. Lord Atkin stated that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” He then defined a neighbour as someone “so closely and directly affected” by your act, that you “ought reasonably to have them in contemplation”. This principle was widely used, and in Home Office v Dorset Yacht Co [1970], Lord Reid stated that, unless there was a valid reason to not use the neighbour principle, then it should apply to all duty of care cases.

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Following this came the two-stage Anns test. First, the claimant must prove a “sufficient relationship of proximity or neighbourhood” between themselves and the defendant. Secondly, the court has to consider whether there is anything within the facts or legal policy that would negate their liability or reduce the damages. The issue with this test was that it weakened the importance of precedent, giving lower courts the opportunity to bypass previous decisions by, instead of deciding a matter based upon precedent, using this test. After this, the House of Lords sought to make a swift move away from the principles in Anns and onto an ‘incremental’ test.

The incremental test was suggested by an Australian High Court decision and focused on the need to “develop novel categories of negligence incrementally and by analogy with established categories” . This influenced the Supreme Court in their 1990 decision to form the Caparo test. In Caparo Industries plc v Dickman [1990], Lord Bridge created a new ‘threefold’ test. The issue with this test, as is argued in Robinson and in Michael, is that Lord Bridge want to create a test. Lord Bridge and Lord Oliver categorised the search for a generalised test for duty of care as “in vain”. Despite this argument, however, Lord Bridge did define three “necessary ingredients” that would give rise to a duty of care. These were “foreseeability of damage,” a relationship of “proximity or neighbourhood” between the claimant and defendant, and that the court must consider it “fair, just and reasonable” to impose that duty of care on the defendant. Despite Lord Bridge immediately going on to say that the final two “ingredients” were not specific enough to be widely applicable, practical tests, and served more of a purpose as “convenient labels”, the Caparo tripartite test was still formed and furthered the idea of a single, general test approach to duty of care.

The case of Robinson, alongside Michael and James-Bowen, indicates the disintegration of the Caparo test. In Robinson, an elderly woman was knocked down and injured when police were attempting to detain a suspect. The initial Recorder and the Court of Appeal both dismissed the case, using the Caparo test, as well as relying on the precedent established in Hill v Chief Constable of West Yorkshire [1989], which gave immunity to police officers in relation to negligence suits. Between the Court of Appeal’s decision in 2014 and the hearing in the Supreme Court in 2018, there were some important and relevant arguments made in the case of Michael in 2015. In this case, Lord Toulson referred to the search for a general test as “elusive” and argued that Lord Bridge had not intended to create a three-stage test in Caparo. Toulson overtly rejects the Caparo test, arguing instead that courts should first look at “how far the law has gone” by analysing precedent when deciding on duty of care cases, and if there is no official precedent then they must look for something similar to base their decision upon. As well as this, he argued the importance of “overall coherence”.

In Robinson, Lord Reed refers to and agrees with the arguments made by Toulson in Michael. Reed makes reference to the importance of cases in which it has already been established whether there is a duty of care or not, and states that this decision should apply to all cases in the future of the same ilk, as he says it would be “unnecessary and inappropriate” to reconsider a decision already made unless there is a serious need to depart from precedent. He then goes on to argue that if a case involves a situation in which a decision as already been made, the courts should consider the “closest analogies in the existing law” and strive to “[maintain] the coherence of the law”. This view is then supported in James-Bowen when Lord Lloyd-Jones repeats and reiterates Lord Reed’s arguments, adding that judgments should pay particular importance to the “achievement of justice” and “coherent development of the law”.

The main issue with trying to establish one general test for establishing a duty of care can be broken down into four points. Firstly, because this is such a wide area of law, the tests would have to be very vague in order to encompass the entire area of law. Following this, a general test will essentially allow judges to make whatever decision they like, because the tests are so vague, and they don’t have to stay in line with precedent. Thirdly, the tests deteriorate the importance of the doctrine of precedent in our judicial system, as courts use the tests rather than previous case law to make decisions. Finally, precedent isn’t being regarded as important, and judges are given a lot of flexibility in their decisions, which will lead to a complete lack of coherence in the case law, with decisions not following on from their previous precedent. So, due to these issues, the recent developments made by Robinson, Michael and James-Bowen arguably should be welcomed as they recentre the issue of duty of care on precedent, rather than generalised, abstract tests.

There are arguments against this return to the ‘traditional approach,’ one being that the lower courts in the United Kingdom seem to enjoy using tests. This is because tests help give them a generalised approach to any cases regarding duty of care and it can be simpler and quicker for a judge to apply the rules of a test rather than research and analyse precedent and previous case law, therefore speeding up the judicial system and allowing more cases to be tried. Others have argued that a heavy reliance on precedent in deciding duty of care cases gives the law of negligence no room to develop, because, if the matter has already been decided before, then it’s likely a court won’t consider it again. This is not the case, however, as courts have been known to re-examine precedent when it is no longer socially acceptable or justifiable, as is the nature of standard common law principles.

In conclusion, the decisions and arguments made by the Supreme Court judges in Robinson, Michael and James-Bowen appear to effectively attempt to wipe out the Caparo test from common use and, in the cases of Michael and Robinson, it is argued that this test should never have been considered a test at all. These recent developments essentially promote a move back to the traditional approach in which the courts rely heavily on precedent in making their decisions. The traditional approach set out in these cases, of checking for precedent first and basing novel cases on similar precedent, is innately good for our justice system; it seeks to protect the doctrine of precedent by putting it at the centre of duty of care cases, it serves to promote the achievement of justice by allowing judges to re-examine the precedent where necessary, and it aids the coherence of the UK’s case law, by preventing differing decisions from being made where there is already an established precedent, and where there is no justifiable reason to reconsider it.

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