Fairness in Questions of Culpability and Liability

Caparo vs Dickman case had re-established the ‘neighbourhood principal’ and have given rise to a duty of care in circumstances where no contract existed between the two parties. The ‘neighbourhood principal’ implies liability would arise if an act or an omission where you could foresee injury to a person close or that is effected.  This has allowed a remedy for cases but could still be too high a hurdle, modern application and the historic rulings such as by Lord Atkins have set president; question of culpability should be discussed with regard to fairness and liability.

Prior to Donoghue v Stevenson and the the 3 stage test by Lord Atkins for negligence, there would have been no duty of care apart for any arising for a contract. This had meant there would have been no legal grounds for action when there was damage or determent arising from defendant’s act or omission.  One case where this can be examined would be the case of Anns v Walcroft Property Co Ltd. The defendants lack of knowledge and “power, as opposed to a duty” had shown that they needed to act in manner of continuous duty of care and they had been reasonable by not conducting inspection. Post Anns case there has been significate provision given towards the duty of care to reach a more balance interpretation for claimants. This has been established within Dutton v Bognor Regis Building Co Ltd as consideration on whether it is just and reasonable to place a duty was rectified by making it law and duty for approval of building plan. Furthermore, it also places a reliance with knowledge requirement, as defendant had negligently advised on “approved of the foundation” and further supported by Ratio Dictum as the frim was contracted to do check. The negligent approval resulted in a defective and unsafe house under new provisions and thus was a breach in the duty of care, allowing damages to be claimed. It also placed duty upon a relation proximity allowing cases outside of statutory Law, contracts and giving rise to rights and lowers hurdles for claimants. As can be seen with “owes a duty only to those who rely on him”.

Modern case had become harder and have different hurdles for claimants as contracts have become more complex and have international implications. In His Royal Highness Okpabi v Royal Dutch Shell Plc the claimant was dismissed with the grounds that “no arguable case that RDS owed a duty of care”. As SPDC is a subsidiary of RDS and all profits and debts would be bound to RDS where as the duty of care doesn’t extend that far. This means that to claim a duty of care the claimant would need to have a direct relation proximity such as day to day control. This shows that Caparo three stage guidelines still proves to be a too high of a hurdle for claimants as the duty of care is still a burden to prove. Furthermore, in Caparo Industries Plc v Dickman the idea of degree of proximity and the burden upon claimants was tested. It proved that the test was dependent on the circumstances of the case. As can be seen there is still a distinction between whom a duty of care can be applied to and who it cant. It is still the duty of the claimant to prove that the duty of care of defendant was directly towards them and and not a third party as can be seen with “ TR owed a duty and potential investors in respect of whom no duty was owed” allowing more defendants to escape liability.

On the other hand, if such limitations weren’t set it would mean a large group of people would suddenly be open to liability. One case where this has been established is JEB Fasteners Ltd v Marks Bloom & Co “D owed P a duty of care” was dismissed due to the fact that any duty of care was between D and C and not P. meaning that there was a duty of care for D not to be negligent towards C thus there was no direct duty of care to P. This means that 3 stage test protects Defends in such cases. Moreover, the judgment is supported by the fact “did not know that P would rely on the account” so it would have been unlikely for D to act negligently towards P to cause particular risk of damage. Secondly concept of duty of care has to be based upon closeness or proximity if such duty of care is unforeseeable at the time it would make it impossible to claim negligence. This means if defends are able to disprove control during case they aren’t bound to any liability arising from the situation as they have “no reasonable ground for bringing the claim” This protects defendants from unenforceable claims in the future.

Finally, in my opinion “proximity of relationship” is still up for interpretation from a case by case basis thus it is difficult to conclude weather “The Caparo three stage, represent too high a hurdle for claimant” it has had significant implications in cases where there has been no contract to enforce and thus no “duty of care”. I have understood that the test is based on fairness and weather there was “foreseeable risk” which the courts interpret to test if its fair and reasonable to hold the defendant responsible. This tells me that the in regards to application of Duty of care a good balance has been met in cases where no direct duty of care can be identified between two parties; no liability would arise from an unenforceable circumstance and there would be no liability. Where as in modern cases there are still complex hurdles such as “control” which allows culpable defendants to escape liability, there need to be definitive methods to measure control to reach an equal and just application which lowers the Burden of proof and further reduce hurdles to claimants.

Bibliography

• Caparo Industries PLC v Dickman [1990] 1 All ER 568 HL
• Donoghue v Stevenson [1932] AC 562
• Dutton v Bognor Regis Building Co Ltd
• JEB Fasteners Ltd v Marks Bloom & Co [1983] 1 All E.R. 583
• Anns v Walcroft Property Co Ltd
• Sutherland Shire Council v Heyman
• His Royal Highness Okpabi v Royal Dutch Shell Plc
• https://uk.practicallaw.thomsonreuters.com/9-504-0826?transitionType=Default&contextData=(sc.Default)