General Tests for the Existence of a Duty of Care in Negligence
There is a vast range of issues that are dealt with as duty in law questions. Thus, any general test will inevitably be too abstract to be of any real use in deciding whether a duty in law is owed. There is no search for a workable general test, it is impossible! This is the fundamental problem with general tests for the existence of a duty in law. General tests for the existence of a duty in law are red herrings and should be avoided.
I think it has to be recognised that to search for any single formula which will serve as a general test of liability is to pursue a will-o-the-wisp. The fact is that ... the attempt to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law but merely to bedevil its development ...
Caparo Industries v Dickman [1990] 2 AC 605, 633 (Lord Oliver)
From time to time the courts have looked for some universal formula or yardstick [for the existence of a duty of care], but the quest has been elusive.
Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 [104] (Lord Toulson)
Lord Toulson then goes on to say that the way to find a duty is to reason by analogy from existing authority.
Thus, the general tests are not useful, and courts do much better to focus on the authorities in the area before looking at substantive arguments for and against. So, avoid the use of general tests.
The three-part, so-called, test from Caparo Industries v Dickman is mistakenly seen as a general test for a duty of care. Lord Bridge supposedly laid down the test, though he in no way intended to lay down a legal test. The test has a three-stage approach: 1) whether the was damage foreseeable. [the duty in fact question] 2) whether there was sufficient proximity between the parties. 3) whether it would be 'fair, just, and reasonable' to impose a duty.
[I]n addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it 'fair, just, and reasonable' that the law should impose a duty of a given scope upon the one party for the benefit of the other.
Caparo Industries v Dickman [1990] 2 AC 605, 617-618 (Lord Bridge)
[T]he concepts of proximity and fairness … are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.
Caparo Industries v Dickman [1990] 2 AC 605, 618 (Lord Bridge)
Lord Bridge tells courts that the labels of proximity, and 'fair, just, and reasonable', are only useful once a duty in law has been found. Still, they do not in any way help courts to find a duty in law.
When the courts use these labels, proximity arguments tend to concern the nature of the claimant's damage; pure economic loss, nervous shock; the act omission distinction; or, deliberate intervening conduct. 'Fair, just, and reasonable arguments' tend to concern public policy arguments for or against finding a duty in law.
It might be useful to think of proximity arguments concerning justice between the parties; and 'fair, just, and reasonable' arguments concerning public policy. Justiciability and other issues don't really seem to fit into the Caparo framework.
The following case is an excellent example of the distinction between 'proximity' and 'fair, just, and reasonable' arguments:
Hill v CC West Yorkshire [1989] AC 53
The claimant alleged that the police had negligently failed to capture the serial killer Peter Sutcliffe, the Yorkshire Ripper, before he killed the claimant's daughter.
There were two reasons why there was not a duty of care. First, there was insufficient proximity because of the intervening conduct of a third party (the serial killer). Second, it was not 'fair, just, and reasonable', because finding a duty in law in these circumstances would have a distorting and detrimental effect on the police fighting crime.
Plunkett, The Duty of Care in Negligence (2018) ch 7
At the ultimate appeal level, the Caparo test was used in only 30% of duty of care cases in the 25 years after the decision. So, the decision has been influential at first instance and at the Court of Appeal, but it has not really been used in the supreme court or House of Lords.
Lord Reed in Robinson wrote that the so-called Caparo test was not a test in any situation whatsoever. It is a mistake to think that he meant that the Caparo test was only useless in cases with a standing precedent and that it was useful in novel circumstances. He believes that the three-part test is useless as a test in all situations.
[T]he whole point of Caparo … was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists.
Robinson v CC West Yorkshire [2018] UKSC 4 [21] (Lord Reed)
When Lord Reed talks about the Caparo approach in Robinson, he does not mean the three-stage test from Caparo. By 'Caparo approach', he is talking about the incremental reasoning method of applying new cases that was affirmed in Caparo. The following three cases confirmed this. The third case even has a judgment from Lord Reed himself saying that the incremental approach is the way. The three-stage test, the tripartite test is useless except for post conclusion labelling purposes.
James-Bowen v Comr of Police of the Metropolis [2018] UKSC 40, [2018] 1 WLR 4021
Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, [2019] AC 831
Clarification of the general approach to establishing a duty of care in novel situations was provided by [Caparo] but the decision was widely misunderstood as establishing a general tripartite test ...
CN v Poole BC [2019] UKSC 25, [2019] 2 WLR 1478 [30] (Lord Reed DP)
This paper tries to explain why the Robinson approach of analogical precedent-based reasoning is superior to the Caparo tripartite test: