Duty of Care - Policy factors (Fair, just and reasonable)
In applying the third stage of the Caparo test, of fair, just and reasonable, the courts take certain policy factors into account. Policy factors which may influence the court include such issues as:
Loss allocation:-
Who can afford to bear the loss?
Which of the parties have insurance/ is the situation one subject to compulsory insurance?
Is the defendant a publicly funded body?
The floodgates:-
Will imposing liability lead to a high volume of new claims?
What effect would this have on cost of insurance or its availability
Will the courts be able to cope with the volume of cases?
The practical effects of imposing liability
Will the imposition of a duty of care act as a deterrent or raise standards?
Will imposing a duty have an adverse effect on decision making?
Will it effect the allocation of resources away from necessities?
These issues often arise in the context of publicly funded bodies and in particular in relation to the police, the CPS, Local authorities and emergency services.
1. The police
a).Duty in detecting crime:
Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 Case summary
Alexandrou v Oxford [1993] 4 All ER 328 Case summary
Osman v Ferguson [1993] 4 All ER 344 Case summary
Osman v United Kingdom Case No 87/1997/871/1083 Case summary
b). No duty of care to prevent injury:
Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218 Case summary
Ancell v McDermott [1993] 4 All ER 355 Case summary
Sacco v Chief Constable of South Wales [1998] EWCA Civ 843 Case summary
c). No duty is owed to provide protection, support and assistance to victims and witnesses of crime:
Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 Case summary
The common law principles are not to be extended to comply with the ECHR where the case involves death threats and right to life:
Hertfordshire Police v Van Colle [2008] UKHL 50 Case summary
d. A duty of care is owed in respect of selecting which officers have access to firearms:
Attorney General v. Hartwell (British Virgin Islands) [2004] UKPC 12 Case summary
e. A duty is owed in relation to the handling of confidential information:
Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 Case summary
2. The CPS
The Crown Prosecution Service do not owe a duty of care in decision making regarding prosecutions:
Elguzouli-Daf v Commissioner of Police [1995] QB 335 Case summary
3. Solicitors and barristers
Barristers and solicitors used to be immune from negligence claims resulting from their conduct in court proceedings:
Rondel v Worsely [1967] 3 WLR 1666 Case summary
This immunity was subsequently lifted and solicitors and barristers now owe a duty of care in the conduct of advocacy in court:
Arthur Hall v Simons [2000] 3 WLR 543 Case summary
3. Local authorities:
The courts are reluctant to impose liability on local authorities particularly where it would impact on decision making or allocation of resources:
Stovin v Wise [1996] 3 WLR 389 Case summary
JD v East Berkshire Community NHS Trust [2005] 2 WLR 993 Case summaries
Compare:
Phelps v Hillingdon LBC [2000] 3 WLR 776
W v Essex County Council [2000] 2 WLR 601 Case summary
4. Emergency services:
A duty of care may arise where ambulance services accept a call and do not arrive within a reasonable time without being able to provide an explanation for the delay:
Kent v Griffiths [2000] 2 WLR 1158 Case summary
A duty of care will be imposed where the emergency service attend and their actions increase the damage:
Capital & Counties Plc v Hampshire County Council [1997] QB 1004 Case summary
See also the duty owed to fire fighters:
Ogwo v Taylor [1987] 3 WLR 1145 Case summary
Salmon v Seafarer Restaurant [1983] 3 All ER 729 Case summary
Other matters relating to policy
A duty will not be imposed if it would disrupt existing agreed liabilities:
Marc Rich & Co AG v Bishop Rock Marine [1995] 3 WLR 227
A duty of care extends to those who are not yet born:
Burton v Islington Health Authority [1993] QB 204 Case summary