Tort law essay

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Lord Toulson adds that the test is ‘circular and provides no yardsticks for answering the questions that it poses’[16]. He rejects and squashes the policy considerations of the Caparo test, and privileges the use of an incremental approach. Indeed, in his Lordships opinion, the overall coherence, which can be found in the incremental process can help to create new exceptions in omission cases, a sector of law where a total immunity was sometimes unjustly given to the police forces. This can be seen in Osman v Ferguson[17], where a teacher harassed several times one of his students, before killing his father, despite of all the alerts of threats made by the victim to the police. In this case, the immunity cloak protected the police even though the proximity between the police and the victim was close, just because of matters of policies, which were separated from the proximity. Although this decision was totally criticized and considered incoherent by the European Commission of Human Rights, it was held that these considerations were made for the publics’ best interest.

Nevertheless, Lord Toulson thinks that the application of Hill should be different. He doesn’t approve Hill's using, finding that the principles of it are stuck with policy matters, which inhibit and therefore prevent the good development of law. In contrary, his judgement ignores policy reasons of the Caparo test and is not focused on the social utility of the defendants’ wrongdoings when settling a duty of care. Thanks to this, case law would not be applied mechanically to new situations throughout the three-limb-test. From this ideology arises the importance of the matter of policy directed to the specific situations of each individual case. Common law is therefore less marked by so-called principles that stems from Caparo, and can apply law of negligence under more important incremental considerations. As a consequence, Lord Toulson thinks that eschewing the Caparo test and using the incremental development will help the court to avoid irrational outcomes concerning omission cases and allow a logical development of the law of negligence torts. By doing this, common law could therefore better accommodate itself to the ECHR articles, especially the second one. Due to this, the re-emergence of the incremental approach re-establishes the importance of law in terms of rights for individuals, as James Goodkamp wanted to show us in his analysis[18].

This can be seen in cases following Michael, where other Lords started to have the same perception as Lord Toulson. As Lord Drummond Young states in A J Allan v Strathclyde Fire Board[19], a case where fire-fighters negligently failed to extinguish a fire, ‘rules derived from existing case law should not be applied mechanically to new situations: instead it should be asked whether as a matter of policy directed to the specific situation under consideration, a new analysis is required’. The court therefore did not act mechanically and did not give the same sentence as in Duff v Highlands and Island Fire Board[20], where the circumstances were the same, whereas fire forces owed a duty of care to the victims, because a fire-fighter’ statutory duty pre-existed. By overruling Duff in this case, the court showed its thorough desire to develop law in a more restrictive policy-based approach, and change the unfounded outcome of these types of negligence. Indeed, the fire services were previously considered liable in damages if they failed to extinguish a fire, but not liable if they failed to attend to a call. The court therefore suppressed, as previously done in Mackay v Scottish Fire and Rescue Service[21] the illogicalness of the decision, and found the firemen not liable.

This is even more apparent in CN v Poole BC[22], where two children sued the Council because they did not prevent them to be harassed by one of their neighbours. The claim was firstly dismissed, following the judgement in JD v East Berkshire NHS Trust[23], a child abuse case. The claim was then reinstated, because the overall coherence of the previous judgement was shown as eroded, against the ECHR and not considered as good law nowadays.

To prove the irrationality of the first decision, Judge Slade bases her argument in consonance with the incremental approach used in Michael.

All these examples shows that Michael is a good development for negligence torts because it removes the rigid principles established by the Caparo test, especially when it comes to the fair, just and reasonable limb. By taking all the idiosyncratic characteristics of each case, the assembly can clearly change their point of view in respect to some so-called general common law principles which were previously entrenched in the arbitrators’ minds. Thanks to the incremental test, a positive and eclectic judgement can be found in various cases.

Michael is clearly a cross-road, because it differs from the previous desire of authorities to find a general test which could be used every time in new cases of negligence, which can be found in Excise and Customs. It totally represents the opposite of Michael. Conversely, judges tried to use three different approaches to know whether or not the Bank owes a duty of care to the Commissioners, in this case of financial loss. They used the assumption of responsibility test arising from Hedley Byrne v Heller[24], the three-stage test from Caparo and the incremental approach. However, in Lord Rodger of Earlsferry's opinion, the assumption of responsibility test is too wide in novel cases and therefore not relevant to help find if a duty of care exists or not. Thus, according to him, the Hedley Byrne principle does not represent a touchstone of liability for the court and the assembly finds itself in a situation ‘where a court faced with a novel situation must apply the threefold test’[25].

Furthermore, Lord Mance enhances Lord Rodger’s sayings, by adding that the assumption of responsibility test and incremental approach should be considered as subsumed in the Caparo test. Indeed, it seems like the incremental test exist but is just used as a warrant to a test as expressly said by Messrs Mitchell : ‘the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation’[26].

It is clearly visible that the court is keen on the Caparo test in the beginning of the transcript. By referencing the Caparo test under the heading title ‘The test of tortious liability in negligence for pure financial loss’, the court simply wants to generalize the practice of this test as a general framework for practitioners of the common law, facilitating the development

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