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Policy-based reasoning in duty of care cases

Published online by Cambridge University Press:  02 January 2018

Andrew Robertson
Andrew Robertson*
Affiliation:
University of Melbourne
*
Andrew Robertson, Professor of Law, University of Melbourne, Parkville, Victoria, 3010, Australia. Email: a.robertson@unimelb.edu.au
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Abstract

This paper seeks to develop a deeper understanding of the role of policy-based reasoning in the determination of duty of care questions. In order to do this, the first part explores the distinction between considerations of interpersonal justice and considerations of community welfare in the determination of duty questions. While imperfect, the distinction illuminates the nature of the factors taken into account by courts in determining duty of care questions and has practical as well as theoretical implications. The second part of the paper analyses the respective roles of interpersonal justice considerations and community welfare considerations in a sample of first instance and intermediate appellate cases from England and Canada. That study suggests that community welfare considerations play a far less significant role in determining duty cases at the first instance and intermediate appellate level than at the ultimate appellate level. Analysis of the cases also reveals significant differences between the English and Canadian courts in their approaches to the interpersonal justice and community welfare aspects of duty of care questions.

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Type
Research Article
Information
Legal Studies , Volume 33 , Issue 1 , March 2013 , pp. 119 - 140
Copyright
Copyright © Society of Legal Scholars 2013

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Footnotes

*

This research was supported by funding provided by the Australian Research Council. I am very grateful to Chris Loo, Lucy Maxwell and Sienna Merope for research assistance, and to Anne Orford, Donal Nolan, the anonymous referees and participants in both the Melbourne Torts Workshop in February 2011 and the Torts section of the Society of Legal Scholars Conference in September 2011 for helpful comments.

References

1. See Beever, A Rediscovering the Law of Negligence (Oxford: Hart, 2007)Google Scholar ch 5; Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar.

2. Weinrib, E ‘The disintegration of duty’ in Madden, M (ed)Exploring Tort Law (Cambridge: Cambridge University Press, 2005)Google Scholar p 149.

3. [1990] 2 AC 605 at 617–618.

4. Beever, above n 1, p 187. A similar claim was made in relation to Canadian Law prior to Cooper v Hobart 2001 SCC 79; [2001] 3 SCR 537 in Klar, L ‘Judicial activism in private law’ (2000) 80 Canadian Bar Review 215 Google Scholar esp at 221.

5. See, eg, Hartshorne, J ‘Confusion, contradiction and chaos within the House of Lords post Caparo v Dickman’ (2008) 16 Tort Law Review 8 Google Scholar at 13–22; Stanton, K ‘Decision-making in the tort of negligence in the House of Lords’ (2007) 15 Tort Law Review 93 Google Scholar.

6. J Bell Policy Arguments in Judicial Decisions (Oxford: Clarendon Press, 1983) pp 22–32.

7. Ibid, pp 23, 74–75.

8. [1932] AC 562 at 580 (Lord Atkin).

9. Though it is noteworthy that the framework developed by Stevens, above n 1, would require the courts to resort to policy in the first sense only in very limited circumstances – namely when new rights might be recognised.

10. [1883] 11 QBD 503 at 508, emphasis added.

11. [1932] AC 562 at 580.

12. Ibid.

13. Weld-Blundell v Stephens[1920] App Cas 956 at 984.

14. See Ripstein, A ‘Philosophy of tort law’ in Coleman, J and Shapiro, S (eds)Oxford Handbook of Jurisprudence and Philosophy of Law (New York: Oxford University Press, 2002)Google Scholar pp 664–670.

15. Cooper v Hobart[2001] SCC 79; [2001] 3 SCR 537 at [30].

16. Ibid.

17. [1989] 2 SCR 1228 at 1240, emphasis added.

18. Rowling v Takaro Properties Ltd[1988] AC 473 at 501 (Lord Keith).

19. R v Imperial Tobacco Canada Ltd[2011] SCC 42 at [79] (McLachlin CJ for the court).

20. See Robertson, A ‘Justice, community welfare and the duty of care’ (2011) 127 LQR 370 Google Scholar at 385–388.

21. Eg, Jain v Trent Health Authority[2009] UKHL 4; [2009] 1 AC 853; D v East Berkshire Community NHS Trust[2005] UKHL 23; [2005] 2 AC 373; Cooper v Hobart[2001] 3 SCR 537; Sullivan v Moody[2001] HCA 59; [2001] 207 CLR 562.

22. [2005] 2 AC 373 at [137].

23. Ibid, at [86]. See also Syl Apps Secure Treatment Centre v BD[2007] SCC 38; [2007] 3 SCR 83 at [50] (Abella J for the court).

24. See, eg, Jain v Trent Strategic Health Authority[2009] 1 AC 853 at 868 (Lord Scott of Foscote).

25. As, eg, in Cooper v Hobart[2001] 3 SCR 537 at [44].

26. See Capital and Counties plc v Hampshire County Council[1997] QB 1004 at 1036, discussed in Kent v Griffiths[2001] QB 36 at [45] and C Booth and D Squires The Negligence Liability of Public Authorities (Oxford: Oxford University Press, 2006) para 33.38.

27. Elguzouli-Daf v Commissioner of Police of the Metropolis[1995] QB 335 (CA) at 352 (Morritt LJ).

28. Khalil v The Queen[2007] FC 923 at [190]–[191], upheld on appeal: [2009] FCA 66. See also W v Home Office[1997] EWCA Civ 1052; [1997] Imm AR 302.

29. Wilberg, H ‘Defensive practice or conflict of duties? Policy concerns in public authority negligence claims’ (2010) 126 LQR 420 Google Scholar.

30. Martel v Andrew[2005] ABCA 63 at [12].

31. [2008] ONCA 697; 92 OR (3d) 401 at [68].

32. [1999] 1 ICR 1.

33. Ibid, at 12.

34. [2008] EWCA Civ 285; [2009] 1 WLR 549 at [42] (Laws LJ with whom Rimer LJ agreed).

35. See Booth and Squires, above n 26, paras 3.37–3.39.

36. See, eg, Cooper v Hobart[2001] 3 SCR 537 at [41]–[44]; Syl Apps Secure Treatment Centre v BD[2007] SCC 38; [2007] 3 SCR 83 at [28]; Paxton v Ramji[2008] ONCA 697; 92 OR (3d) 401 at [64]–[70].

37. [2004] QB 558 at [112].

38. Ibid.

39. Discussed above, text accompanying n 31.

40. Ibid, at [71]–[76].

41. Ibid, at [76].

42. See Robertson, above n 20, at 379–384.

43. See Winnipeg Child and Family Services (Northwest Area) v G (DF)[1997] 3 SCR 925 at [37]–[39].

44. See, eg, Hall v Royal Bank of Scotland plc[2009] EWHC 3163 at [52]; Edell v Canada[2008] FC 1306 at [39] (Federal Court of Canada).

45. See Paxton v Ramji[2008] ONCA 697; 92 OR (3d) 401 at [75]–[76]; Lacroix v Dominique[2001] MBCA 122; 156 Man R (2d) 262 at [38]–[39].

46. See, similarly, Stevens, R ‘The conflict of rights’ in Robertson, A and Tang, Hw (eds)The Goals of Private Law (Oxford: Hart, 2009)Google Scholar p 160: ‘Although there may not be any logically necessary conflict, the potential for conflict may confer a privilege not to respect one of the rights.’

47. See, eg, Hartshorne, above n 5; Stanton, above n 5.

48. Sub nom Van Colle v Chief Constable of the Hertfordshire Police[2008] UKHL 50; [2009] 1 AC 225 at [106] (Lord Carswell).

49. Ibid, at [73] (Lord Hope of Craighead), quoting Brooks v Commissioner of Police of the Metropolis[2005] 1 WLR 1495; [2005] UKHL 24 at [30] (Lord Steyn). See also ibid, at [73]–[80] (Lord Hope); [89]–[103] (Lord Philips of Worth Matravers); [123]–[135] (Lord Brown of Eaton-under-Heywood).

50. [2009] UKHL 11; [2009] 1 AC 874.

51. Ibid, at [28] (Lord Hope, with whom Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Easton-under-Heywood agreed).

52. [2009] UKHL 4; [2009] 1 AC 853.

53. Ibid, at [23], [28] (Lord Scott, with whom Lord Rodger, Baroness Hale, Lord Carswell and Lord Neuberger of Abbotsbury agreed).

54. The sample was identified by searching on the CaseTrack and BaiLII databases for all decisions of the High Court of England and Wales, the Court of Appeal, and the High Court and Court of Appeal of Northern Ireland in the period from 1 January 2008 to 31 December 2009 in which the expression ‘duty of care’ was used. All decisions which did not involve a final determination on the existence of a duty of care in the law of negligence were filtered out. Decisions subsequently reversed on appeal or affirmed for different reasons have been replaced or supplemented by the appeal court decision.

55. The sample was identified by searching on the CanLII database for the expression ‘duty of care’ in decisions of all courts in the period 1 July 2008 to 30 June 2009. All decisions which did not involve a final determination on the existence of a duty of care in the law of negligence were filtered out, as were all decisions of Provincial Courts. Decisions subsequently reversed on appeal or affirmed for different reasons have been replaced or supplemented by the appeal court decision. Where there were quite distinct duty issues determined in one case (eg, claims against different defendants), these were treated as separate cases.

56. See the Appendix for a full list of cases and citations. Cases listed in the Appendix will be referred to in the footnotes below by the name of the first party.

57. W Rogers Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 18th edn, 2010) p 155. See also Witting, C ‘Duty of care: an analytical approach’ (2005) 25 Oxford Journal of Legal Studies 33 CrossRefGoogle Scholar at 35.

58. Notably Coal; Proctor; Trustee; Whitecap; Wombwell.

59. Ie, the two-stage test laid down in Anns v Merton LBC[1978] AC 728 as modified by Cooper v Hobart[2001] SCC 79; [2001] 3 SCR 537 (at the first stage the court asks whether a prima facie duty is established on the basis of foreseeability and proximity, and at the second stage the court asks whether there are policy reasons for denying that prima facie duty).

60. Adams; Donaldson; Reference; BM; Ediger.

61. The three-stage approach articulated by Lord Bridge in Caparo Industries Plc v Dickman[1990] 2 AC 605 at 617–618 holds that necessary ingredients of a duty of care are foreseeability, a relationship of proximity or neighbourhood and that the court considers it ‘fair, just and reasonable’ to impose a duty of a given scope.

62. So; Calvert; Maga.

63. See, eg, Caparo Industries plc v Dickman[1990] 2 AC 605 at 617–618 (Lord Bridge); 633–635 (Lord Oliver); Customs & Excise Commissioners v Barclays Bank plc 191 (Lord Bingham); 198–199 (Lord Hoffmann); 204 (Lord Rodger of Earlesferry); 209 (Lord Walker). See also Stanton, above n 5. The three-stage framework has been viewed more favourably in recent cases: see Hartshorne, above n 5, at 9–10 and more recent cases such as Van Colle v Chief Constable of the Hertfordshire Police[2009] 1 AC 225 at [42] (Lord Bingham); Mitchell v Glasgow City Council[2009] 1 AC 874 at [21]–[25] (Lord Hope).

64. See Reference re Broome v Prince Edward Island[2010] SCC 11; [2010] 1 SCR 360 at 13; R v Imperial Tobacco Canada Ltd[2011] SCC 42 at [38].

65. Calvert; Martin; Nayyar; Parker.

66. See Robertson, above n 20, at 392–393.

67. Booth and Squires, above n 26, para 3.06.

68. Reference was made to pro-duty community welfare considerations in two cases in which duties were denied. In Hinds v Liverpool County Court[2008] EWHC 665 (QB) at [52], Akenhead J said, after ruling out foreseeability and proximity: ‘I cannot see any real basis on the grounds of public policy why the fourth defendant should owe a duty to Mr Hinds.’ In MN v Froberg[2009] ABQB 145 at [23], Langston J explained the denial of duty on the basis, inter alia, that ‘while society needs to be protected from false allegations of abuse, Courts have decided that this societal goal is outweighed by the need for detection, reporting and confidential treatment of sexual abuse’.

69. [2009] BCCA 38.

70. Ibid, at [38] (Frankel J for the court).

71. [2006] 1 SCR 643.

72. Ibid, at [17] (McLachlin CJ for the court).

73. Ibid.

74. Ibid, at [18].

75. Ibid, at [19]–[21].

76. Ibid, at [22].

77. See Robertson, above n 20, at 393–394.

78. Harelkin; Millar (police); Millar (sister); Reference (general duty), Saskatoon; Jones; Wiggins.

79. Harrington; Paterson; Wombwell.

80. CHS; Blue; Brodie; Healy; Heaslip; Nadeau; Pembina; Smorag; Westcoast; Wiggins; 783783; Abarquez; Attis; Khalil; Paxon; River; Williams; Grant; Evans; Holland; Project; Turner; Drady; McMillan; Trudell; Cimaco.

81. Hinds; Merelie; Patchett; Glaister.

82. Pegasus; Galliford; Rushmer; Jennings; X.

83. Hall (duty would conflict with the defendant's own interests).

84. JP Morgan; Hibbert.

85. Mendel.

86. D Pride; McDaid.

87. Proctor; Trustees.

88. Fegan.

89. Hadden; Whitecap; Poulton.

90. Baker; Bowden; Bassij; Force; MN; Dominion; Hanson; DC.

91. Brar; Heyes.

92. Tolarico.

93. Ellwood; Adams.

94. Hayward; Hurst; Foschia; Edell; El-Ashram.

95. Beever, above n 1, p 187. See also Klar, above n 4, at 221: ‘Injured plaintiffs, even those whose damages are not physical injuries but financial losses, are invariably regarded as having been foreseeable.’

96. Paterson.

97. Wombwell; Harrington.

98. Millar (police); Reference.

99. Saskatoon.

100. Harelkin.

101. See, eg, Stovin v Wise[1996] 923 at 932 (Lord Nicholls of Birkenhead); Alcock v Chief Constable of South Yorkshire Police[1992] 1 AC 310 at 411 (Lord Oliver of Aylmerton). As with the Caparo framework, proximity has been viewed more favourably in recent decisions. See Hartshorne, above n 5, pp 12–13; Mitchell v Glasgow City Council[2009] UKHL 11; [2009] 1 AC 874.

102. On the first point, see, eg, Childs v Desormeaux[2006] 1 SCR 643 at [10] (proximity ‘remains the foundation of the modern law of negligence’); on the second, see, eg, R v Imperial Tobacco Canada Ltd[2011] SCC 42 at [41]–[60].

103. Williams; Drady; CHS; Cimaco; Merelie.

104. [1989] 1 AC 53 at 63 (Lord Keith).

105. [2009] NIQB 51 at [46].

106. D Pride.

107. McDaid.

108. Mendel.

109. Poulton.

110. [2008] ABQB 513.

111. [2009] ABQB 149; 466 AR 1.

112. Ibid, at [89].

113. [2009] YKSC 41 at [41].

114. [2008] NBCA 62.

115. Ibid, at [73].

116. Dominion.

117. DC[2009] NSCA 73 at [27]. The other three cases were Bassij; MN; Hanson.

118. CHS; Blue; Brodie; Healy; Heaslip; Nadeau; Pembina; Smorag; Westcoast; Wiggins; 783783; Abarquez; Attis; Khalil; Paxton; River; Williams; Grant.

119. CHS; Blue; Smorag; Attis; Williams.

120. Abarquez; Khalil; River.

121. Pembina; Wiggins; 783783; Attis.

122. Westcoast; Wiggins; Grant.

123. Blue; Williams.

124. CHS; Abarquez; Khalil.

125. Paxton.

126. CHS.

127. [2001] 3 SCR 537; 2001 SCC 79 at [51].

128. McDaid; Mendel; MN; Dominion; Hanson; Smorag; Paxton; Brar.