1 - Duty of care

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What is a duty of care?
· Determines whether there’s a relationship between the claimant and the defendant which gives rise to liability
· Two aspects:
· Duty in law – is there (or should there be) a rule of law that either allows or bars recovery in this category of case?
· Duty in fact/remoteness – was the damage suffered by the C the materialisation of one of the risks which made the D’s conduct negligent?
Historic development of duty of care
· The HL in Donoghue v Stevenson shifted away from specific negligence duties recognised in specific situations towards a more general principle of negligence, ‘the neighbour principle’ that you should take reasonable care to avoid foreseeably risking harm to your neighbour, meaning someone directly affected by your actions so that you should have them in mind 
· The neighbour principle was developed into a two-stage test in Anns v Merton:
· If there’s a relationship of proximity such that harm to claimant was reasonably foreseeable, prima facie DoC
· Then consider policy considerations which could negate/limit the duty
· Changed by Lord Bridge in Caparo v Dickman – foreseeability and proximity are separate considerations and the burden of proof is reversed: there is a presumption of no duty owed to C 
· Foreseeability of harm to claimant
· Relationship of proximity between claimant and defendant
· Fair, just and reasonable to impose duty in this situation
· Lord Bridge was emphatic that the Caparo test should only apply in novel situations, in common types of cases there are established precedents on when there’s a DoC
· The Caparo ‘test’ was not conceived as a formulaic test to be applied but more just as a way of labelling the different factors courts are likely to take into account
· Proximity especially is not a defined test you can apply but essentially just a way of saying what the court thinks is a reasonable area for the imposition of liability (Lord Oliver in Alcock v CC of South Yorkshire)
Duty in law
· The SC clarified in Michael v South Wales Police and Robinson v Chief Constable of West Yorkshire Police that the HL in Caparo Industries v Dickman never intended to lay down a three-stage test but to repudiate the idea of an overarching formula. The correct approach was for the law to develop novel categories of negligence incrementally and by analogy with established categories
· In Caparo, Lord Bridge observed that the concepts of proximity and fairness were so imprecise as to deprive them of utility as practical tests and Lord Oliver suggested that searching for a single overarching test was to pursue a will-o’-the-wisp
· Lord Reed in Robinson held that the correct approach was:	
· In ordinary cases to apply existing precedents in accordance with established principles. The fairness and reasonableness of imposing a duty would already have been considered when the principle was established, so it was not necessary to reconsider it
· In novel cases or cases where the court considers whether to depart from existing precedent, the court should reason incrementally and by analogy with existing categories of case. The drawing of analogy depends on identifying legally significant features of existing authorities. The court would have to exercise judgement when deciding whether a duty of care should be recognised. Considerations of what is fair, just and reasonable would inhere in this judgement
· Nolan has argued that the duty of care should be deconstructed as it has been bad for the quality of reasoning in negligence cases – many of the considerations we think about under duty in law could actually be considered at other stages of the negligence inquiry and this would be clearer/more consistent
· E.g. the Home Office’s responsibility for the actions of third parties was considered under duty in law in Dorset Yacht, but it could also be considered under causation or remoteness, psychiatric injury is considered under duty in law but could also be considered under actionable damage
· This would mean these issues are addressed more systematically rather than all being subsumed under one heading and potentially glossed over
· Would also avoid the inappropriate blurring of questions of law and fact in the current DoC inquiry
· Disagreement between Lord Bridge and Lord Wilberforce in McLoughlin v O’Brian illustrates lack of clarity about whether something is a legal or factual consideration
· It’s important to be clear about which is which because it affects whether you can appeal and whether your case sets a precedent
Evaluating general duty tests
· In Caparo, the HL had repudiated the idea of having an overarching test – Lord Oliver suggested that searching for a single overarching test was to pursue a will-o’-the-wisp and Lord Bridge observed that the concepts of proximity and fairness were so imprecise as to deprive them of utility 
· But the Caparo formula does at least provide a helpful structure where there is a dispute whether a duty should be owed – but is it a useful structure?
· The foreseeability requirement was a necessary but not sufficient element of the enquiry since Donoghue. It represented the idea that a defendant cannot be expected to exercise reasonable care towards the world at large, but only to those he can reasonably foresee could be affected by his actions
· Nolan: but this is a duty in fact question and it is important to distinguish this from duty of law for procedural reasons because it is easier to appeal on points of law and adds more coherence to separate the issues – could just be dealt with at the foreseeability/remoteness stage
· The proximity test doesn’t have any independent value – Lord Oliver in Caparo, it ‘embodies no definable concept’
· In the previous tests, it was bound up with foreseeability:
· In Anns proximity and foreseeability were part of the first-stage: the question of proximity assisted in the inquiry as to whether harm to that person was foreseeable
· Similarly, in Donoghue, the neighbour principle embodied proximity (‘who is my neighbour’) and foreseeability (such that they are so directly affected by D’s actions that D will have him in mind)
· But Robertson and Witting argue that proximity does serve an independent analytical function, but we should consider it as more of a concept which directs the court to focus on the parties’ relationship, rather than a strict test – in focussing on the relationship between the defendant and the claimant, this gives it content 
· Witting thinks it establishes the causal link between the claimant and the defendant, so that the more proximate they are to one another, the more certain it is that the claimant’s damage can be attributable to the defendant – but this is a factual causation issue
· Robertson thinks it is an integral element of the inquiry Robertson because it directs the court to ask a normative question about whether, as a matter of interpersonal justice, the damage should be attributable to the defendant – but this is a legal causation issue
· Proximity has also been seen as just an element of the FJR stage –an ex post label for when it would be fair and just to impose a duty of care (Lord Nicholls, Stovin v Wise) and an element which is blended with FJR (Lord Kerr, Michael)
· For this reason, Rogers notes that there is a tenable view that proximity is really no more than a statement of the conclusion that there is or is not a duty – it has no independent content other than this
· Building on Robertson and Witting’s interpretation of the proximity requirement, if proximity focuses on the factual relationship between the parties, then there is a way of distinguishing proximity between FJR
· Proximity means FJR in the interpersonal justice sense and FJR means FJR in the community welfare sense
· This is a helpful distinction but not one expressly made in the case law – courts do see proximity as bound up with FJR 
· But causation establishes the connection between the claimant and the defendant which links them as a matter of interpersonal justice
·But arguably a separate requirement of this at the duty stage is necessary
· Alternative view is that proximity doesn’t always serve an independent function, but is useful in certain types of cases, e.g. Robertson: in cases of negligent misstatement causing pure economic loss, proximity might be evidenced by explicit knowledge of the defendant of the identity of the particular person intending to rely on the information (Steel v INRAM)
· In other cases, like Dorset Yacht and product liability cases, it can be subsumed at the foreseeability stage of the enquiry
· In cases like Hill and Lord Kerr’s application of the Caparo test in Michael, proximity is tied up in whether it is FJR to impose a duty – i.e. whether out of the police’s general duties it is possible to say that they owe a specific duty to the particular claimant
· The FJR stage has the potential to involve a limitless amount of considerations – Lord Nicholls in Stovin called it ‘vague’ and ‘uncomfortable loose’
· FJR test directs the court to consider policy reasons for imposing a duty – but the proper scope and content of the term ‘policy’ is unclear
· MacCormick calls the FJR term ‘hideously inexact’ – it would seem to embrace any kind of reason, both reasons of principle (fairness/interpersonal justice) which support a corrective justice theory of tort and reasons of policy which support a policy approach 
· Robertson: in the duty context, ‘policy’ questions focus on whether, taking into account the consequences that the imposition of a duty would have on the community, it would be fair, just, and reasonable to impose a duty, as contrasted with questions of principle, which focus on interpersonal justice 
· Lord Toulson in Michael thought that policy arguments such as defensive practice concerns were of little value because they lacked empirical evidence 
· Lord Reed in Robinson thought that policy considerations should be reserved to novel cases/cases where the court is departing from existing precedent, but only to the extent that they are relevant to the courts’ exercise of judgement on whether to develop an existing duty category. Hill, Van Colle and Brooks could be explained according to ‘ordinary principles of tort,’ and policy arguments are not a ‘routine aspect’ of negligence cases and are ‘unnecessary’ when liability can be explained on the basis of existing principles
· Lord Hughes in Robinson thought liability was denied in . Hill, Van Colle and Brooks on the basis of the Hill immunity principle and that public policy arguments are still relevant, e.g. Brooks involved a positive act, but a duty was denied on policy grounds – even if this was clearly not what Lord Keith intended to be the ratio of the case in Hill, this is clearly how subsequent authorities have interpreted it
· Lords Mance and Hughes thought that it was an oversimplification to say that policy factors were no longer of relevance in ordinary cases, because even when the court applies established principles (e.g. AOR) it is still influenced by policy considerations – akin to Stapleton’s argument that principles veil policy concerns
· Lord Mance: when the court decides whether the case fits into established duty category and if so which, this still involves considerations of policy
· Lord Hughes: whether a case falls into an exception to the general rule of no liability for omissions involves policy considerations. Michael could equally have been rationalised as a case of a positive act of negligent misstatement
· The application of the AOR test involves considerations of policy, e.g. Lord Toulson’s deliberate restriction of the scope of the test in Michael requiring an express undertaking, despite an AOR being recognised in previous cases where there was no express undertaking (Stansbie v Troman) 
· Subsequent cases have been equivocal about the utility of policy considerations 
· SC applied the Robinson approach in Darnley and endorsed Lord Reed’s approach to the Caparo test in Steel v INRAM 
· However, in DSD, Lord Neuberger (with whom all of the SCJ agreed) observed that, ‘absent special factors, our domestic law adopts the view that, when investigating crime, the police owe no duty of care in tort to individual citizens. This is because such a duty would ‘inhibit the robust operation of police work, and divert resources from current inquiries, it would be detrimental to law enforcement’ 
‘Pockets’ approach and incrementalism
· Robinson endorses a combination of the pockets approach in ordinary cases and an incremental approach in novel cases
· Under the pockets approach, the existence of a duty is determined by recourse to the particular reasons or logic that are deemed to underlie the existing of different categories of recognised duties – according to the headnote of Caparo, this was the ratio of the case, and following the resurrection of the true ratio of Caparo in Robinson, this is the correct approach in ordinary cases and in novel cases, the question is whether the pocket should be extended 
· It has the benefit of predictability and it offers more reliable guidance by reference to specific and identifiable arguments, as they apply to a particular fact scenario, than by reference to concepts of more general application
· We see this in the quality of the reasoning in Sumner v Colborne, when the CA distinguish the facts of Sumner from Yetkin and then explain why there was a legally significant difference between adjacent obstacles and highway obstacles was much more satisfying than the policy reasoning
· It is much clearer and addresses the key issues more directly – demonstrates that courts’ expertise lies much more firmly in legal reasoning (developing precedent) than in policy reasoning
· In previous cases, policy reasoning has sometimes been invoked without clear consideration of what it actually adds to the case at hand (and what its implications may be in subsequent cases) – Lord Keith’s judgment in Hill is a perfect example of this. He resolved the case according to established principles of no liability for an omission, but then went on and introduced a redundant passage on why, on a policy level, police should not be liable – it’s an unnecessary distraction
· It is much more fact sensitive (as Sumner demonstrates) which will be helpful because it will consider the issues as they relate to the parties – interpersonal justice, rather than community welfare considerations, which are not the province of the courts anyway
· But Howarth criticises this because it means courts won’t be considering general normative principles 
· In the majority of cases, the pockets approach essentially resembles an orthodox application of the principle of stare decisis, whereby any question of law is determined by reference to principles drawn from similar cases, i.e. positive act causing physical injury equals a duty of care
· Better reflects the courts’ institutional competence – Sumner demonstrates that they are much more competent when engaging in legal reasoning 
· One of the big problems is that the existing duty categories were themselves established based on policy reasons and involve arbitrary limitations and judicial line-drawing (e.g. Alcock criteria)
· Witting: without any underlying rationalisation for the discrete pockets, there can become ‘a degree of arbitrariness in the way that cases are categorised, and issues determined
· If we want to do the pockets approach in a principled way, this may involve considering these limitations head on and whether they should be revised
· The selection of the relevant pocket will determine, at the outset, the types of reasons that can be relied upon in determining the outcome of the duty enquiry, and so potentially preclude consideration of otherwise relevant factors, a process which, according to Stapleton, can be ‘akin to the tail wagging the dog’
· Lord Hughes in Robinson suggested that Michael v South Wales Police could have been just as easily rationalised as a negligent misstatement/positive act caseas an omissions case and that policy considerations influenced the courts’ decision to place it in the category of omissions
· Stapleton thinks Smith v Eric Bush could’ve just as easily been categorised a defective property case. Stapleton argues that the pockets approach should be replaced by a focus on ‘convincing’ and ‘unconvincing’ factors that point for and against the existence of a duty – this is what Lord Reed said should be done in novel cases and was done in Sumner v Colborne
· The determination of a duty also depends on how widely we draw the established pockets – Lord Mance in Robinson: it won’t be clear at the margins
· In Darnley the SC said that the ‘duty is one to take reasonable care not to cause physical injury to the patient – is this too wide?
· In Robinson Lord Reed drew a category as positive act causing physical injury – is this too wide?
· The difficulty in determining the size/scope of these categories is that how wide they are drawn may be influenced by policy considerations in any given case
· The problems could be mitigated with more careful classification of the boundaries of the pockets, a revision of some limits or a rationalisation of them to accord with principle and a greater consideration of their normative basis
· Incrementalism obviously mitigates the harshness of utilising the pockets approach all the time, which would not admit of any developments in the law 
· Stapleton argues that the move towards incrementalism was due to the increasing expansion of duties of care, which led appellate courts to recommend a more restrained approach to lower courts – because incrementalism is constrained by existing precedent, it permits less expansive changes to the law than broadly framed duty tests such as Caparo
· It is difficult to determine whether a particular case is novel or not 
· It is not clear at which point the facts of a case are sufficiently analogous to established categories to allow incremental extensions
· E.g. in Sumner v Colborne there was discussion over whether Yetkin v Mahmood, a case concerning an obstacle on the highway, should be applied to a case of an obstacle adjacent to the highway – CA held that there was clearly a distinction and that it was a novel case and considered reasons for and against extending Yetkin to obstacles adjacent to the road
· It is not clear how ‘novel’ a case has to be in order for the incrementalist approach to apply – on one view, cases will never be novel because there are always analogous fact patterns, but it depends on how broadly you draw the existing pockets
· E.g. in Darnley v Croydon Health Services NHS Trust, the majority of the CA thought that it was a novel case and that policy reasons militated against imposing a duty, but the SC thought it clearly fell into an established duty category 
· Means that courts will have to clearly understand the ratios of previous cases and their boundaries
· Lord Reed said that the process of reasoning by analogy required courts to work out what is ‘legally significant’ in past cases. That may be easy for him to do, but may be much more difficult for trial judges and CA – highlights Lords Mance and Hughes’ point that these questions really involve value judgements
· Perhaps a new test/guideline on legally significant features may be relevant or elucidation of relevant factors?
· The identity of the defendant
· The cause of the damage
· The means of the damage 
· Applying this to Darnley:
· The defendant was the hospital, no distinction should be drawn between different staff members when the defendant is the hospital as a whole (Kent v Griffiths)
· The cause of the damage was a failure to treat (Barnett v Chelsea)
· The means which caused the damage was a negligent misstatement, which is a recognised means of causing damage and an exception to omissions rule (Kent v Griffiths)
· But objection is that now we are just requiring courts to do what they do anyway, which is apply past precedent – Nolan: incrementalism is what courts do when dealing with any novel question of law
· But guidance to litigants is equally important: e.g. should Michael be decided under Hill (because of the identity of the police officers) or Kent v Griffiths (because it was a 999 call and involved physical injury) or Capital v Counties (because it was a 999 call and involved a fire brigade)
· The fact that Michael doesn’t fit squarely into any of these cases shows how difficult it is to draw the line between a novel and an ordinary case – what factors are relevant?
· Howarth thinks that the eschewing of normative principles will lead to circular reasoning – if the only justification for an existing duty category is that it exists, the question arises as to what justified the decision to treat the situation as a duty-situation the first time that it arose
· But as Lord Reed explained in Robinson it is not necessary to consider fairness and reasonableness a second time when it was already considered when the category in question was established 
· Although the benefit of incrementalism is that it restrains courts from introducing large categories of liability, this may also be problematic because it will prevent the law from developing – inherently quite a formalist approach 
· E.g. what if the HRA is repealed and there is a real question as to whether the common law should then develop to fill the void – incrementalism won’t permit this to be considered because positive obligations don’t exist in the common law 
· But arguably this is a good thing because the common law is itself supposed to be restrained – otherwise it would permit constitutionally suspect judicial law-making
· The approach in Robinson is definitely better from an institutional competence perspective and from a corrective justice perspective and introduces significant clarity to the law, but it has problems of its own which will need to be ironed out over time
Assumption of responsibility
· Initially, duties arising out of the contract were identified in the old master and servant relationship. Where it was expressly stated in the contract that a master had undertaken to provide necessary to a servant, he could be prosecuted for neglect, although this provision was restrictively interpreted as possible. In the late 19th century, the law develops the contractual analysis beyond master and servant interrelationships for an implied or explicit contract could be established, in order to found a duty of care
· Established in Hedley Byrne, HL held that a defendant can be liable for negligent misstatement if they assume responsibility to the claimant (no assumption of responsibility on facts as defendant had expressly disclaimed responsibility)
· Misstatement in Hedley Byrne was by a bank that its customer was creditworthy when actually it wasn’t, so the customer’s advertising agency ended up having to pay for some of its advertising space – this decision opened the way for recovery of PEL in a non-contractual relationship in the absence of personal injury/property damage for the first time
· Lord Devlin held that the duty arises wherever there is a relationship equivalent to contract
· Where there is a general relationship, there is no need to show an express or implied undertaking
· Where what is relied on is ad hoc and the relationship is particular, it is necessary to examine whether there is an express or an implied undertaking 
· Unclear what role the AOR plays – problematic that its role is unclear because it means the courts can endorse one view in one case to reach its intended outcome and another in another case
· Rights-theorists such as Beever argue support the ‘consensual view’ that an AOR is (or should be) only imposed where there is a manifestation of consent 
· Lord Devlin clearly rejected the view in Hedley Byrne that the AOR could be imposed by law: ‘it is a responsibility that is voluntarily accepted or undertaken’
· Williams v Natural Life also emphasises the role of an express undertaking which suggests a stricter applicationof the AOR requirements
· In Michael the SC held that the undertaking needed to be express
· Professor Treitel: ‘Contract’ does not exhaust the category of promises or agreements having some legal effects.’ A gratuitous bailment is an ancient example of a voluntarily assumed obligation,65 as old as contract itself, which falls outside of contract's scope
· Recent cases have such as Playboy Group and Steel v INRAM emphasised the need for reasonable reliance and in Playboy Group the SC emphasised the Caparo requirement that an AOR can only be found if the representor knows of an identifiable (although not necessarily identified) person or group and the purpose for which the representation was being made and it must be reasonable for C to rely – suggests consensual view isn’t enough
· This accords with Caparo which found that no duty could be owed because the purpose of the information was not to assist share buyers, but to provide an audited report to company directors
· But there are additional cases where claims are brought to vindicate the right of the promisee 
· E.g. in White v Jones, giving right to intended legatees to sue was the best way to give effect to contractual right of promisee (akin to FAA)
· Doesn’t explain Smith v Eric Bush where there was no undertaking to the purchasers 
· But again, we could say that there was an undertaking from the surveyor to the building society and the court allows claim to vindicate right of promisee 
· But difficult because subsequent cases do not allow Cs to circumvent privity rules (Simaan v Pilkington)
· Consensual view only works if we restrict AOR to cases where there was a voluntary AOR
· Robertson and Witting argue that an ‘assumption of responsibility’ is merely a label for the conclusion that a notional duty should be imposed
· Could say that tort law is law which is imposed on parties by contrast with contract law which is voluntarily assumed
· Tort law is the general law out of which the parties may contract in Henderson v Merrett
· Cases used in support of this view are 
· Lejonvan v Burgess – the fact that there was no contract between C and D did not mean there couldn’t be an AOR because the test is different – a relevant contract is just relevant to the nature of the duty – there’s also a standard of care, which suggests its a negligence rather than quasi-contractual standard
· In Playboy Club Lord Sumption stated that the AOR serves (i) as an allegory of proximity in relationships equivalent to contract, (ii) as an explanation of why it is appropriate to award damages
· This supports the view that AOR is court-imposed but the reasoning is questionable – if AOR is supposed to be a category of exceptional liability, there must be something special about it that makes it different to normal DoC because the point of it is that under normal DoC we cannot recover
· Why do we need an allegory of proximity in relationships equivalent to contract when we can just use the Caparo test? If it is restricted to relationships equivalent to contract, then it must offer something different to the proximity test?
· (ii) the reference to an ‘explanation’ suggests that it is a conclusory label
· Beatson LJ in CGL Group v RBS called the AOR an ‘organising concept’ used by courts to express a ‘value judgement’ – has the merit of recognising how broad the AOR is, but if it is a ‘value judgement’ this suggests that it is imposed where it is normatively desirable for the law to afford a remedy, not when the facts of the case demonstrate that there was in fact an AOR
· White v Jones, where the defendant was deemed to have assumed a responsibility to the claimant ‘in law,’ despite the parties never having even communicated with each other, directly or indirectly
· But in White v Jones, Lord Goff was clear that the existence of a duty was not based on the defendant assuming a responsibility to the claimant, but on the basis of the ‘impulse to do practical justice’
· Smith v Eric S Bush where the defendant was held to have assumed a responsibility towards the plaintiff, again, despite the parties never having met, and despite the defendant expressly disclaiming any responsibility
· It does not follow from the fact that some cases use the concept of AOR fictitiously that the concept itself is meaningless
· Also saying White v Jones and Smith v Eric Bush cannot be seen as equivalent to contract scenarios reads ‘equivalent to contract’ too narrowly 
· There was a contract in White v Jones and Smith v Eric Bush and the defendant had assumed a responsibility for the work he was performing, the issue was that he had not assumed responsibility to the claimants, but the scenario is still sufficiently ‘contract-like’ to hold him to his undertaking to T. But-for the privity rule in contract, these are cases which would have been enforceable in contract
· So, we can extend the reasoning in Hedley Byrne to the following: some people may make agreements which the law wants to protect, but cannot do so in contract law because they fall short of its requirements (not because the relationship lacks the indicia of a contractual relationship), so will do so in tort
· The fact that some undertakings are implied does not render them insufficiently contractual. After all, even contracts can be implied, such as a contract for the sale of a bus ticket, despite there being no express undertaking 
· On this view, in Spring v Guardian Assurance, we can say that there was an implied undertaking to C when D wrote C’s reference that it would be done so with care
· The fact that AOR is objectively determined does not mean that undertakings are not voluntary – after all, the existence of a contract is also objectively determined
· Nolan: need to draw a distinction between the fact that an AOR as a legal term is court imposed, but this is based on the existence of a factual scenario where it can be said that an AOR is present – so there is a distinction between AOR in fact and AOR in law 
· Unclear whether it has any independent value 
· The more it is court-imposed and the wider the scenarios in which it applies, the more it looks like a synonym for proximity 
· In Customs and Excise v Barclays the HL discuss both AOR and Caparo FJR and it seems like the lack of FJR is the reason they don’t find an AOR – which favours the policy view of the AOR, that it is imposed on the court, but they also say that AOR does have an independent value provided it is clearly defined
· Lord Hoffmann stated that questions of fairness and policy will enter into the decision and it may be more useful to try to identify these questions than simply to bandy terms like AOR and FJR 
· Lord Rodger: the rule had been ‘stretched beyond its natural limits which would in the long run undermine the very real value of the concept as a criterion of liability’
· Lord Bingham: the more notional the assumption of responsibility becomes, the less difference there is between this test and the threefold test
· In CGL Group v RBS Beatson LJ relied on Customs and Excise v Barclays to find that all of the tests should be considered together when determining whether there is a duty of care 
· He applied Caparo even though the point of the AOR is that it provides a separate exceptional route to finding a duty of care in PEL cases where the law would ordinarily not find a duty
· Also following Robinson, Caparo three-stage test should not be applied at all
· He also applied the incremental approach, but again, this suggests that there is nothing special about PEL cases which justifies a separate test, e.g. the general rule in PEL and omissions cases is that there is no liability unless there is an AOR, but if there doesn’t need to be an AOR (even a fictional one) then there is no general rule of exclusion
· In White v Jones, Lord Nolan suggested that the duty owed by the driver of a motor vehicle to other road users (not to directly cause them physical injury) was based on AOR, whilst in Customs and Excise Commissioners v Barclays Bank plc,Lord Hoffmann suggested that Henderson was a rerun of Donoghue v Stevenson
· The role of AOR in PA omissions cases is also problematic
· Michael contains two different bases for PA liability based on an AOR, but they haven’t been distinguished even though they are very different 
· At [112] the SC endorsed the AOR approach in Phelps based on the public/private analogy, that public services providers with analogous private providers must owe a duty of care because it would not be fair that individuals would be able to sue in negligence in private providers but not public ones
· But there is also the undertaking-based AOR, which in Michael the SC said needed to be express
· So, in Darnley, where C was turned away from A&E by a receptionist, it is unclear whether the hospital owe a duty based on the public/private analogy or an AOR
· The distinction is important because it presupposes that the existence of a private counterpart necessitates the imposition of a duty for the PA counterpart – so if it could be established, for example, that there was a private police force operating in the same borough where C relied on a public police force, this would suggest the public police force should owe positive duties in the same way a private police force would
· It is also important because the public/private basis of liability is much more liberal – there is no need for any express or even implied undertaking, the fact that the hospital is a hospital itself suffices – supported by dicta by Lord Woolf in Kent v Griffiths
· Both the consensual and non-consensual views have support in the cases, but what is important is that the courts decide either way
· I think a better approach would be to accept that there can be consensual and non-consensual AORs, that AORs can have different requirements depending on the duty category (PEL, omissions) and the relationship between the claimant and the defendant – if we only recognised conventional undertakings this would be a significant restriction on the AOR, which should be applied broadly because it serves to ameliorate the injustices of the general rule against PEL/omissions
· Lord Devlin was clear that the courts need only look for an express or implied undertaking in cases where the relationship was ad-hoc, i.e. there had been no prior relationship 
· In PEL cases where the relationship is ad-hoc, the AOR must also satisfy the requirements of reliance, an identifiable recipient and possibly and identified purpose 
· In general relationships, there is no need to look for an implied or express undertaking – this explains Henderson 
· We also have the privity cases like White v Jones and Smith v Eric Bush where there has been an undertaking, just not to the claimant 
· And public private analogy cases like Woodland v Swimming Teachers Association
· If we identify these different categories, we will be able to elucidate the requirements for each of them and the courts will not need to use various different tests to reach the same outcome
Should tort law be decided on the basis of principle or policy?
· ‘Principles’ are abstractions of legal rules that have been used to justify outcomes of previously decide cases – considerations of interpersonal justice
· Policy arguments are substantive justifications which are consequentialist reasons – community welfare considerations
· Arguments based on principle rely on the idea of rights (Stevens, Nolan!), whereas arguments based on policy rely on the aim of collective goals 
· Reasons for the policy approach – Stapleton
· Transparency: reasoning based on principle masks the substance of the decision, which is based on veiled policy concerns
· Dworkin has questioned why is it undemocratic for unelected judges from a small and unrepresentative section of society to determine our legal rights based on their personal political views, but not undemocratic for those same judges to determine our legal rights on the basis of their personal views on interpersonal justice?
· Under s1 of the Compensation Act, judges are required to take policy considerations into account (whether liability would prevent a desirable activity from being undertaken or discourage persons from undertaking function sin connection with a desirable activity into account when determining whether a duty of care is owed)
· SC appeals criteria requires that the case to concern a matter of policy importance 
· If the courts get it wrong, Parliament can substitute a court’s decision with their own (Barker v Corus)
· Lord Neuberger has argued extra-judicially that because tort law generally and negligence specifically cover such a huge, disparate and ‘innately incoherent’ field it’s impossible to set out clear general principles and judges can only really reason based on policy
· Where there are clear established principles, they’re often hard to justify, frequently changed (e.g. Anns/Murphy) and have significant exceptions, which calls into question whether they’re valuable at all 
· The courts are generally willing to depart from established principles on policy grounds, e.g. White v Jones, Chester v Afshar, Fairchild
· The whole Caparo approach to DoC of reasoning incrementally from previous cases and then using FJR as a criterion in novel situations is essentially pure policy
· He acknowledges Stevens’ rights theory-based arguments but points out that tort decisions have a big policy impact whether people like it or not, judges can openly consider policy factors while still showing restraint, parliamentary time for tort law is limited, and if they make a decision which Parliament really doesn’t like it can always change it
· Against policy – Stevens/Beever
· Rob Stevens: policy approach involves balancing incommensurables, it is like asking a judge to determine whether Mozart or chocolate is better
· But Cane: courts may be confronted with incommensurable conflicts of rights
· It’s just not necessary– how Lord Keith in Hill resorted to policy when he had already decided the issue
· Robertson reviewed a number of novel cases and found that liability was established on interpersonal justice grounds
· Rights-based model (Stevens): policy-based reasoning is uncertain, gives a lot of discretion to judges, involves balancing incommensurables and the kind of polycentric (multiple factors) reasoning and courts very ill-placed to engage in because of bipolar adversarial nature of legal system and not clear democratically that we want them t
· Rob Stevens is a Kantian – all of his philosophical writing is inspired by this Kantian approach, for Kant, in order to make someone liable for something, you need to have a certain type of reason 
· For the policy theorists, to make someone liable you can add up a lot of different factors, e.g. C suffered loss, C was vulnerable, D should’ve known better etc.
· For Rob Stevens and the proponents of the corrective justice model this isn’t enough, because you need to establish why that D should be liable to that C. If you cannot do this, then you cannot explain our tort system. You will not be able to say why C can’t just recover from a state compensation scheme (if main factor is compensation) or why C should recover at all (if main factor is deterrence) 
· The infringement of a Hohlfeldian right by D to C is the necessary link which justifies imposing liability on D
· Problems: 
· We now have to decide what rights people have. Stevens can decide this at a high level of abstraction but really to decide what rights people have we need a policy approach, e.g. the reason why I have rights against pen (tort and contract) is because of Donoghue, policy, we want manufacturers to be careful in the way they manufacture products and people who sell those products – so they must take reasonable care
· Case law determining what rights we have is policy driven, e.g. no recovery rule for defective premises, Alcock limits
· In order to say what rights we have we have to answer a certain number of prior questions – e.g. what is it about bodily autonomythat justifies us having a right against interference of it and what does ‘bodily autonomy’ mean? Does it extend to failure to warn cases, what about wrongful birth cases, what about nervous shock?
· Nuisance is a good example of the rights-based approach, but that’s because it shouldn’t be in tort law, it should be in land law
· Robertson: need we have one or the other? A pluralist approach recognises a distinction between principle and policy and gives primary to the former, the latter only being used as a countervailing consideration where liability is determined on the basis of principle
· Debatable whether human rights should play a role – Lady Hale argued in Michael v South Wales Police that the claimants’ ECHR rights should be taken into account when considering reasons for/against imposing a duty, but majority saw this as a separate public law issue (see Nolan’s article)
Omissions
· General rule is no duty to positively help others/prevent harm to them (Gorringe v Calderdale)
· Nolan: general rule is justified because the interest of C is weaker (no right to be conferred a benefit) and the interference to D is greater (requires positive action which infringes autonomy)
· Distinction between act and omissions is whether D makes C worse off – Nolan we have no general right to be conferred a benefit 
· SC held by a majority in Michael v South Wales Police that you shouldn’t just apply the Caparo criteria but need special reasons to overturn this general rule
· Examples of factors which might lead to a DoC:
· Defendant has control over a third party’s actions and a responsibility to supervise them (Dorset Yacht)
· Everett v Comojo: nightclub/bar owners can be responsible for failing to prevent assaults committed by their guests because there’s a relationship of proximity, foreseeable risk and it’s FJR to impose a limited duty to keep guests safe (however, didn’t apply Mitchell?)
· Michael v Cardiff Police – police weren’t negligent by failing to deal with a 999 call on time and prevent a murder – crucial that they didn’t have any control over/relationship with the third party which was the distinction from Dorset Yacht
· Definitely no liability if third party actions aren’t foreseeable (Smith v Littlewoods)
· Both Mitchell v Glasgow CC and Everett v Comojo involved an occupier and the act of a third party, but in Mitchell the HL held there was no duty and in Everett the SC held there was a duty but it was not breached on the facts 
· In Mitchell the HL held that a positive duty to prevent criminal acts of a third party shouldn’t be imposed just based on foreseeability – you have to assume responsibility to protect the claimant but in Everett there was no AOR, but the court found sufficient proximity because of the economic relationship between the claimant and the defendant (members’ club)
· Could say that in Everett the nightclub provided the occasion for the stabbing but in Mitchell it created the mere opportunity – but this is quite a fine distinction. The most significant differentiating factor in both cases was that one was a PA
· Tony Honoré: individual responsibility, tenet of liberal philosophy, explains Mitchell and Michael 
· But we aren’t saying boyfriend shouldn’t be responsible, we are saying police are also responsible for something – difference in Mitchell was that imminent harm was not foreseeable
· Corrective justice theory: X has infringed C’s right, not D
· Query whether there becomes a point where you have imminent knowledge of immediate danger and whether there should be liability on these grounds – Lord Toulson was open to a new exception in Michael but didn’t think any of the approaches worked
· An ‘intervener’s liability principle’ under which the police would owe a duty of care to help an identifiable person or group of persons who they knew or ought to know were in danger
· Lord Bingham’s ‘liability principle’ (Smith v Van Colle) under which the police would owe a duty of care to help an identifiable person who had told the police they were in danger
· A ‘proximity principle’ advanced by Lord Kerr in Michael under which a defendant who could reasonably have been expected to help the claimant would have owed her a duty of care if he found out that she was in urgent need of saving from serious harm
· Defendant has created a dangerous situation (Dorset Yacht)
· Occupier has failed to abate a danger which he has knowledge of (Goldman v Hargrave) – but means of the occupier are taken into account when determining whether he could have abated the danger (Smith v Littlewoods) 
· Defendant assumes responsibility to claimant (Calvert v William Hill, Kent v Griffiths, medical negligence generally) – requirements are unclear 
· In Michael v South Wales Police Lord Toulson said there needed to be an assurance/gives C the reasonable impression that he is assuring her that D will save C from harm; and reliance by C on D, normally by not taking other steps that are available to her to protect herself from harm
· McBride thinks this approach is the best – the ‘no assurance needed view’ makes meaningless the notion of an ‘assumption of responsibility’ and the ‘no reliance needed view’ asserts that the law of tort has now gone further than the law of contract (and associated law of estoppel) has ever done and is now in the business of enforcing promises that are informal, gratuitous, and not relied upon
· In Smith v Eric Bush, Phelps v Hillingdon the HL thought it was enough that D will have ‘assumed a responsibility’ to C if he takes on a role or position to which, i.e. D has ‘assumed a responsibility’ to C because he has a duty of care
· Nolan and Stevens think no reliance is necessary but recent cases Playboy Club, Steel v INRAM emphasise the reliance requirement
· Suggests there may be a breach aspect – which would go against Stevens’ view that breach of the undertaking should itself suffice
· ‘Interference principle’ where D prevents C from using alternative means to protect herself from harm – (Kent v Griffiths) – reliance is necessary
· E.g. in Kent v Griffiths the doctor said that had the operator not promised that the ambulance would arrive shortly, she would have taken C to hospital
· E.g. in Michael, Bagshaw argues that ‘if the State routinely provides a subsidised service and thus stifles private initiatives to provide similar protective services it is arguable that the State should owe the same duties as such private service providers would have done’ and Tofaris and Steel argue that by prohibiting arms, the state makes us dependent on police to protect us
· But it would have to be proven in the case at had that there was a causal link between D’s behaviour, C’s dependence and C’s injury
· An equivalently situated private person would owe a duty of care in the circumstances (Woodland v Swimming Teachers Association)
· Also referred to in Michael v South Wales Police [112] but it was not clearly distinguished from AOR – but it is much more liberal in its application so is clearly a separate basis (doesn’t require an actual undertaking)
· Morgan thinks it is problematic – e.g. if it could be shown that a private police force existed, would this suffice for a claim to be brought against the police for an omission
· Nolan: omissions cases are also frequently against PA defendants – complicates the issue further with questions of public policy and the public/private law divide
· But courts emphasised in Michael v South Wales Police that they weren’t applying special rules to PAs – the police don’t have a special immunity from prosecution under Hill v West Yorkshire Police, it’s just that the courts don’t make an exception from the normal rule that there’s no liability for damage caused by a third party (this is the idea that actually public authorities should be treated the same way as a private person would)
PAs
· Historically courts have been reluctant to impose negligence DoCs on PAs just based on their statutory duties or powers – makes sense as these are already regulatedby public law – most clearly reasserted in Michael v South Wales Police
· Maguire v Knowsley BC – decision can be Wednesbury unreasonable without being negligent
· Stovin v Wise – DoC can only be imposed based on a statutory power where there is a duty to exercise the power and compelling policy reasons to impose a private law duty
· Gorringe v Calderdale BC – statutory obligation can’t create a DoC if the Caparo factors don’t support imposing one
· Narrower than Stovin v Wise which left the possibility open that public law duties could create a DoC in some situations – Gorringe says not at all, only ever on ordinary private law principles
· Nolan likes this – if the state is going to have special duties to its citizens based on its special powers then these should be in public law, not negligence
· Jain v Trent HA – unnecessary to impose a private law duty of care where there were already other public law remedies (e.g. HRA s6 claims) – and undesirable on policy grounds where a health authority’s DoC to nursing home owners could potentially conflict with its duties to patients
· But for public services like health and education where there’s a close relationship between claimant and defendant, DoC can arise on ordinary private law principles based on assumption of responsibility (e.g. Barrett v Enfield LBC, Kent v Griffiths) – courts have shown increasing willingness to accept claims based on assumption of responsibility in recent years
· Barrett v Enfield LBC – HL held that a claim against a PA for negligence in its foster care services shouldn’t have been struck out but allowed to proceed – cases against PAs should be decided based on their specific facts and not just generally disallowed on public policy grounds
· Phelps v Hillingdon LBC – educational psychiatrists have a DoC to children and the LA is vicariously liable because there’s a close relationship of proximity and dependence
· But just interaction with the PA and them dealing with your problems is not enough to make them assume responsibility – Mitchell v Glasgow CC, Michael v South Wales Police
· They can also have a DoC based on ordinary private law principles as long as it doesn’t conflict with their other public law duties – this can require them to exercise their public law discretionary powers (e.g. employer’s duty to employee in Connor v Surrey CC)
· Absence of a statutory duty doesn’t rule out a DoC if it would be imposed anyway (Phelps v Hillingdon LBC)
· If a PA has always acted in a certain way and the claimant relies on this, then if the PA suddenly stops and this causes damage to the claimant that can count as a positive action
· PA may also have created a dangerous situation which then causes damage to the claimant, e.g. Dorset Yacht
· Police don’t have a DoC to prevent damage caused by third party criminals unless they either have control over the third party or have assumed responsibility to the claimant (Hill v West Yorkshire Police, Michael v Cardiff Police)
· Majority in Michael considered making an exception to the normal rule for the police where there’s an identifiable individual at risk of harm or the individual tells the police about the immediate threat to them, but said this would be impossible to limit in a rational way and there was no evidence it would improve police practices or that it was necessary given that people could already claim under the HRA and the CICS
· Courts are more willing to recognise negligence DoCs for health service than other emergency services – because they don’t have a duty to the public in general but to specific patients (Kent v Griffith)
· McBride: Two possible approaches to PA omissions liability:
· Diceyan approach where the same rules apply to them as everyone else and if they have extra duties these are in public law
· Policy approach where a PA in a good position to prevent harm has a DoC unless there’s a policy reason not to impose one
· Michael v South Wales Police and Robinson is a clear reaffirmation of the Diceyan approach
· In Robinson Lord Reed rationalised previous authorities as supporting the Diceyan approach, e.g. in Hill Lord Keith had already denied a duty of care on the basis that the victim and the Yorkshire ripper were not known to the police and the policy arguments were actually redundant
· He likes the Diceyan approach because he thinks as a matter of principle people shouldn’t be penalised legally for trying to do good and putting themselves in a position where they can help people
· But common law arguments against omissions liability don’t apply to PAs – no loss of autonomy point because state doesn’t have autonomy in the same way
· Better view is that the proper place for accountability is in public law, risk that it deters state action (undercurrent in Michael)
· Also, Jain v Trent point that negligence liability is unnecessary where there are already public law remedies (HRA) and might conflict with or complicate them
· Supported by Michael v South Wales Police – HRA claim went to trial but negligence claim was denied
· Debatable whether human rights should play a role – Lady Hale argued in Michael that the claimant’s ECHR rights should be taken into account when considering the factors for/against imposing a DoC, but majority saw this as a separate public law issue (Diceyan approach)
· Lord Brown argued in Van Colle that the two types of claim have different purposes (compensating the claimant vs ensuring a minimum standard of respect for rights) and also different procedures, so it’s important to keep them separate
Psychiatric injury
· Recognised psychiatric illness requirement (Reilly v Merseyside HA)
· Sensible approach because it avoids having huge numbers of unverifiable claims for emotional distress
· But drawing sharp lines between mental disturbance and psychiatric injury is especially difficult where some psychiatric illnesses are just more extreme versions of commonplace emotional states
· Primary/secondary victim distinction is unclear 
· In W v Essex CC the HL thought that the claimant could potentially be either primary victims or secondary victims
· Categories of primary victims is unclear
· W v Essex CC held that the categories of primary victims aren’t closed 
· In Rothwell v Chemical Insulating Co Lord Hoffmann suggested two different approaches to primary victims, we didn’t use the term – neither of these cases would encompass what happened in W v Essex, but that case wasn’t even mentioned
· Page v Smith type cases where the unfavourable event carrying a foreseeable risk of physical injury must actually occur in order for the claimant to recover, even if the physical injury does not occur
· Cases where psychiatric injury was a reasonably foreseeable consequence (McLoughlin v O’Brian) – encompasses stress at work claims (Barber v Somerset) – but in Barber the court did not even use the terminology of primary victims and did not mention Alcock or Page
· In McLoughlin v Jones, the court held that there was an alternative approach to primary victim category and that was to ask whether the type of harm was foreseeable result of D’s negligence – also supported by Lord Hoffmann in Rothwell
· Nolan: it would be simpler and make more sense to define a secondary victim positively as someone who suffers psychiatric injury as a result of what happens to someone else, and classify everyone else as a primary victim
· Because the whole point of the distinction is to separate out secondary victims and apply special rules to them
· Would explain why someone who suffers psychiatric injury because of work stress with no physical danger is treated as a primary victim
· No requirement that the claimant be a person of ordinary fortitude in Page v Smith
· This was justified on the basis that the physical endangerment requirement provided an adequate limit, but in W v Essex the HL left it open that physical endangerment is not a prerequisite – so what would the limit be now?
· Lord Jauncey (dissenting): the cases require that the event in question wasof a ‘dramatic and horrifying nature.’ Here this was not the case and so no recovery should be granted.
· Lord Lloyd: if the claimant had suffered physical injury, nobody would question his claim for psychiatric injury, so why should it be different that he was endangered but not hurt? – well because there is a big difference between the risk of injury and injury as the HL may clear in Rothwell, but refused to overrule Page
· But in Rothwell the HL restricted Page to cases of physical endangerment 
· Makes it impossible to verify that the event caused the psychiatric injury where the individual already has psychiatric illnesses
· Reasonable foreseeability of the type of damage is a requirement for all negligence cases so there should be no difference here (Wagon Mound 2) – recognised in Rothwell where the HL reinterpreted Page as a case where psychiatric injury was foreseeable
· Rescuers are secondary victims unless they are physically endangered (White v South West Yorkshire Police)
· White is difficult because it is a limit on employer’s duty of care towards employees – how can it be reconciled with Barber?
· Departed from earlier cases like Chadwick where rescuers could recover – also probably motivated by trying to limit liability for Hillsborough disaster, especially as allowing claims by police officers but not family members would look bad
· But as a matter of general law and policy, it is unsatisfactory, especially if the primary victim category is not limited to cases of physical endangerment
· Also discourages people from going to rescue those in need if they will not be protected by the law if they do so 
· Incidents where the primary victim injures themselves are also excluded for policy reasons – Greatorex v Greatorex
· Arbitrarily discriminates against mental illnesses – physical injuries caused in exactly the same way are recoverable (Dunnage v Randall)
· The secondary victim requirements already stringent enough and Greatorex is a very unusual case
· Policy justification that it’s better for everyone not to encourage litigation in these situations isn’t really convincing – ignores obvious fact that people will tend to be trying to recover from insurance companies, not seeking personal recriminations
· Should anything turn on the primary/secondary victim distinction, we might thing it’s a proximity related thing or a floodgates concern, but is there a different way of formulating it?
· Lord Bingham’s suggestion in McLoughlin that ordinary duty of care requirements would apply to restrict liability is better
· Secondary victim limits 
· Close ties of love and affection
· Exclusion of bystanders (McFarlane v EE Caledonia) constitutes a bad analysis of psychiatry. If we witness an oil tanker going into the school, we are likely to suffer psychiatric injury and it can have a significant impact on our life 
· Law is supposed to regulate our relationships as humans living in a community. An aspect of community life is that we have a compassionate response to individuals as civil members/citizens of society 
· Better approach is to ask whether psychiatric injury with reasonably foreseeable 
· Presumption for parents and children but not for other relationships 
· Cane and Goudkamp: how can we justify rule that requires people claiming they are suffering psychiatric injury to go to court and prove that the love someone they have lost?
· Proximity requirement is a meaningful limit, but it is difficult to apply because it is factually dependent
· McLoughlin v O’Brian’s two hours later was described as borderline in Alcock – nine hours was too long
· In Alcock Lords Keith, Oliver and Ackner leave it open (obiter) if you can specifically identify the person you hold close ties of affection to and you see them injured on television, you may be able to recover
· Lord Oliver: seeing something on television is not the same as immediate and direct sight of the event 
· Lord Oliver thought television guidelines would prevent the broadcasting of suffering – but what about facebook – Bonita Chaterjee suggests that it might be an NAI and the broadcaster should be responsible/broadcasting company
· Inducement by shock: sudden appreciation by sight or sound of a horrifying event which violently agitates the mind and has to have an immediate effect (Lord Ackner, Alcock)
· Legal definition – would a medical one be better? 
· Legal definitions of mental illness are not uncommon, e.g. MNaghten rules
· Excludes claims for stress caused by caring for the injured primary victim later 
· Nolan thinks that its purpose is to ensure clear causation of injury by negligence, but it would be better to just consider this under causation on a case by case basis – greater use of medical evidence rather than non-technical rules
· Shock is not required in employee stress cases and Page v Smith type case
· 36-hour shock has been held sufficient in a secondary victim case (Walters – medical negligence case where misdiagnosed baby died over a period of hours and mother witnessed it all)
· LC: Fixing a cut-off point for shock induced psychiatric injury is arbitrary given how psychiatric injury occurs – often the full extent of the psychiatric injury may only occur over time, such as in Rothwell
· Reflects a view of the nature of these illnesses which equates them to physical illnesses i.e. they have to manifest themselves immediately. By comparing it to physical injury, they fail to recognise the distinctiveness of psychiatric injury. 
· Some of the best justifications for the limits come in Lord Steyn’s judgments in White v South West Yorkshire Police:
· Allowing them to bring a claim might adversely affect their recovery
· No medical evidence to support this, also very paternalistic – people shouldn’t be prevented on mass because it may not be good for them – rejected by LC
· Would lead to large claims and disproportionate liability
· LC aren’t impressed by that. Size of the claim isn’t a reason to say there is no claim, better view is that this reflects a floodgates concern
· Floodgates justification convinces the LC – indeterminate number of claims to an indeterminate class, indeterminate people – do the ordinary limitations that we have on negligence claims sufficiently meet those floodgates concerns?
· Better approach would be to follow Lord Bridge’s view in McLoughlin v O’Brian that the normal duty of care limits is sufficient – foreseeability, proximity, remoteness etc.
· Floodgates doesn’t justify Greatorex, might justify proximity requirements, would suggest Page v Smith is wrong, doubtful it justifies love and affection because, as long as there is medical evidence of psychiatric injury, that should be enough and should allow bystanders to recover too 
· Arguments for reform:
· Nolan: it would be simpler and make more sense to define a secondary victim positively as someone who suffers psychiatric injury as a result of what happens to someone else, and classify everyone else as a primary victim
· Because the whole point of the distinction is to separate out secondary victims and apply special rules to them
· Would explain why someone who suffers psychiatric injury because of work stress with no physical danger is treated as a primary victim
· Also, in line with Rothwell v Chemical Insulating Co – Lord Hoffmann identified two types of cases where a claimant can recover because of something that happened to her
· McLoughlin v O’Brian – Lord Bridge argued there should be no specific restrictions and these should just be factors affecting foreseeability at duty in fact stage – no specific duty in law restrictions – better 
· Mental illnesses are serious because they can persist for longer than physical ones and have a bigger life impact 
· Protecting mental health within tort law better takes account of the human and community interests that we have – rescuers should be encouraged to rescue, not deterred by rules preventing recovery
· Current law presents a patriarchal view of the world which underestimates the significancethat trauma can have on mental health and our well-being – unsurprising that the law has been developed by male judges in a post-war era
· Limits were justified given the lack of knowledge about how to evidence psychiatric injury and how it is caused – but now that medical knowledge is much more sophisticated, the law should better reflect how psychiatric injury is caused (i.e. get rid of shock requirement) 
· Alcock was obviously strongly influenced by the particular circumstances of the Hillsborough disaster – Lord Oliver quote about how judges just use proximity to say what they think is a reasonable area for the imposition of liability, they’re reasoning backwards
· W v Essex CC could represent recognition that the law has been too focused on these specific circumstances and needs to become more flexible to deal with other situations
Pure economic loss
· Are the restrictions on PEL justified?
· Floodgates argument and possibility of liability for an indeterminate amount for an indeterminate time to an indeterminate class, which is uninsurable 
· Stapleton: Dartford tunnel, car accident, nobody can get through and they suffer economic loss should they all recover? 
· But has arbitrary results – physical injury/property damage can have unexpectedly huge consequences which are recoverable (e.g. Fairchild rule) and PEL caused by negligence might be limited and obviously foreseeable, such as in defective premises claims
· Also, doesn’t justify general rule – could allow recovery but with limits like in psychiatric injury cases
· We don’t have a general right against everyone that they don’t cause us PEL – it would be much too broad and destroy competition/economic freedom
· Other torts (e.g. nuisance, tortious interference with contract, defamation) do protect PEL 
· Why don’t we have such a right?
· Wealth generally seen as less important than physical integrity and property
· But not all chattels have any kind of sentimental or intrinsic value separate from their economic worth, (e.g. oil tanker in Shell v Total, ore in Spartan v Steel, lobsters in Muirhead v Industrial Tank Specialists) what matters in these cases is the value of the property
· Witting: a person’s personality is inextricably connected with the tangible things that they own, and it is through this that a person defines themselves – essential to their identity. The same cannot be said for abstract holdings of wealth.
· But if wealth is not something recognised as valuable by the law, why is it used as the means of compensating victims? Why does the court not compensate through replacing damaged property?
· People do define themselves with how much money they earn or how financially successful they are
· Property can only be acquired using wealth
· Beever: we don’t have a right to a mere expectation of financial gain
· In Spartan Steel and Muirhead it was the profits from the damage property which were unrecoverable, and we do not have a right to an expectation of profit 
· But loss of chance claims in PEL are recoverable even though there was only a chance that she would’ve been employed (Chaplin v Hicks)
· Also, White v Jones was a mere expectation and there was no AOR
· In order to establish that C had a right to the lost profits, you would have to establish that they had a right in rem (a proprietary right) to the banknotes that would be used to purchase the metal ore
· But AOR cases allow recovery to pure economic loss where there is no proprietary right 
· Stevens: we do not have a right good against the world to make profits from an ore melt. There must be something more, i.e. a special relationship with a specific person which explains why C can recover from D
· This would justify the Junior Books type case were C can recover from D for a property defect because of a special relationship of particular proximity between the claimant and defendant (the purchaser of a property had chosen a specific subcontractor to work on it even though they weren’t in a contractual relationship)
· But this was not followed in Simaan v Pilkington Glass which had similar facts because the claimant had directed their subcontractor to buy a specific type of glass from defendant 
· PEL would be more restrictive of freedom of action because we’d have to go around not causing PEL to lots of people, which would limit what we do 
· Lord Oliver in Murphy v Brentwood: causing economic loss to other people is the inevitable result of competitive trading
· Lord Reid in Dorset Yacht: PEL may not be recoverable in tort because ‘competition involves traders being entitled to damage their rivals’ interests by promoting their own’
· Reflects the trade-off between security interest and autonomy interest
· D. Howarth, with physical injury there is a natural end point, but this is not the same with PEL – where do we draw the line, what about the buyer of the ore who must now purchase ore at a higher price elsewhere?
· Remoteness rules can deal with this as can the rule that it must be consequential on property damage to C
· Stapleton’s ‘tort cooperation principle’ – tort law gives effect to our allocation of risks and our voluntary assumption of risks, e.g. tort law would give effect to an occupier’s limitation of liability if the party has constructive notice that liability will be limited – this same principle governs rules on PEL
· Tort law should give effect to the allocation of risk that was agreed by a non-vulnerable commercial party – Lord Brandon in the Aliakmon: parties could have decided differently on how to allocate risk through their contract
· Defective property cases 
· If a purchaser has agreed that the loss would lie where it fell, the tort cooperation principle should bar claim against D
· It also should not make any difference if the contract did not spell out the arrangement
· Junior Books v Veitchi, C succeeded against D but Stapleton thinks they shouldn’t have – notable it hasn’t been followed in subsequent cases 
· In Simaan v Pilkington, which involved a very similar factual scenario, C had no claim against D – Lord Bingham: the claimant and the defendant could have contracted so that the claimant could zoom defendant directly but the fact that they did not do so suggests that barring a direct action against D was what the parties contemplated
· The Cs essentially wanted to circumvent the contractual chain by trying to sue D directly, court says, you did not contract for this so you can’t circumvent privity rules
· It is ‘settled law’ that D does not assume any liability in relation to defects giving rise to PEL (Stanley Burton LJ)
· Does not explain latent defects where there is no alternative contractual claim – but Stapleton might say we have insurance for this – Murphy v Brentwood was an insurance case – not the case that claimants are worse off and have to foot the bill themselves
· The exception of when tort law gives C a free ride is the assumption of responsibility
· Common denominator in the case law seems to be: C relies on D which caused C to make a disastrous investment decision which is a direct consequence of D’s undertaking
· What distinguishes defective property claims from AOR?
· It cannot be that there is no floodgate concern here because there is also no floodgate concern in defective property cases 
· It cannot be because D had particular expertise and was chosen for that reason because in Simaan Ds was specifically chosen because of their expertise
· It cannot be because contractual protection was available with the middle party because it was also available in Henderson 
· In Henderson, protection from a middle party was not only available, it had been secured by them 
· Wrong that Cs were not left to rely on self-protection available or to walk away
· Henderson is best restricted to its own facts
· Hedley Byrne v Heller: C made orders for their client which they were liable to pay for if the client couldn’t – D (client’s bank) confirmed ‘without responsibility’ that client would be able to pay but then it went bankrupt.Ds in principle could have owed a duty based on AOR, but no liability on facts as D had disclaimed responsibility
· Weir: complaint that ‘the C chose to make bad business deals, having taken only a free opinion, hazarding their wealth in the hope of profit’ 
· Caparo v Dickman: C relied on auditors report figures and bought shares in company, held that the report was not intended for the general public to rely on to purchase shares as it was for the company’s directors – undertone is that C should not be relying on a free report to purchase shares – if they don’t do their due diligence, the risk falls on them
· Scullion v Bank of Scotland [2011], C purchased a buy-to-let with a free valuer and sued the valuer
· Distinguishing Smith v Bush: Lord Neuberger: all parties knew the commercial focus of the transaction, even though C had relied on the valuation by the valuer – reliance was unreasonable in commercial circumstances, because participants including valuers, would expect a commercial person to purchase his own valuation 
· Echoes Tony Weir: who said Hedley Byrne could have found a credit investigation agency and would have been protected in contract
· Steel v Imran Ltd, SC rejected the claim that solicitors owed a DOC to a commercial lender with whom they had no contract even though the solicitors had been very careless
· Lord Wilson notes that in investment decision cases, C must establish it acted reasonably in relying on the defendant – this is central to the concept of AOR
· C had adequate means of self-protection and his reliance was therefore unreasonable
· This decision valuably continues the focus on the choices available to the commercial claimant 
· The decision reinforces the increasing willingness of courts actively to contain tort liability 
· Reasonableness is implicitly seen in the light of a judicial assessment that society and the market expects economic parties to be self-reliant
· Lord Brandon in The Aliakmon, parties could have decided differently on how to allocate risk through their contract
· Also, Robinson v PE: it is the terms of the contract which govern the liability between the parties, any claim in tort must be based on something which goes beyond the contract, i.e. an assumption of responsibility
· Interaction of tort and contract – claimants suing defendants they’re not in direct contractual relationships with may be able to get a more advantageous level of damages, evade limitation periods or contractual limitation/exemption clauses, get around a chain of liability
· Point about how it’s just a general rule – AOR is a very significant exception and is very malleable
· Distinction between property damage and defects in property (cost of repairing the defect and lost value of the property) are regarded as pure economic loss (D&F Estates, Murphy v Brentwood)
· No issue of indeterminate liability here because the defective property has an owner 
· Lord Bridge: to grant liability would be to confer an indefinitely transmissible warranty of quality – good argument but would limitation period deal with this? Only actionable six years from date of discovery, otherwise not actionable at all?
· Damage to other property belonging to the claimant is recoverable but this can be difficult to distinguish from damage to the defective property itself
· D&F Estates – Lord Bridge suggested you could have a complex structure where the parts of the structure would be separate pieces of property
· But then he doubted it himself in Murphy v Brentwood – all parts of a structure like a building are part of a whole and a defect in any part of the structure is a defect in the whole building – but possible exception if you have one component like a boiler built by a different contractor which positively malfunctions and damages the rest
· CA refused to decide whether the complex structure theory is good law in Robinson v PE Jones – lack of clarity
· Current state of law punishes parties who are prudent and careful – so if I have a window that may break at any moment I won’t be able to recover until the window causes damage to house or people – creates perverse incentives and is economically inefficient
· If physical integrity and property are valuable, then preventative damages to cure latent defects before they cause property damage or damage to person ought to be recoverable
· Lord Bridge observed obiter that it is possible to recover for remedying dangerous latent defects that could cause danger to neighbouring land
· Lord Oliver responded that this should apply to a homeowner’s visitors too 
· Nolan and Stevens both think preventative damages for latent defects should be recoverable 
· Stevens thinks in unjust enrichment because otherwise the builder would be unjustly enriched
· Nolan thinks they should be available if it is reasonable to incur them based on Transco which allowed damages for costly remedial work to support a gas pipe
· Almost no other Commonwealth countries have followed the Murphy v Brentwood exclusion of liability for defective premises – but now we have the DPA 
· Howarth: no need to change the law now that we have the DPA
· But quite restrictive – building must be used or be capable of being used as a dwelling, defect must make the premises uninhabitable, limitation period is six years from the date the work is completed rather than the date the defect is discovered (common law limitation is six years from discovery of the defect Payne v Setchell) (Latent Damages Act 1986 does not apply to statutory causes of action)
· But also the point that this does not cause an injustice to the homeowner because the real issue is whether the insurance or the builder should bear the loss
· Lord Griffiths in Smith v Eric Bush: the cost of insurance must be a relevant factor when considering which of two parties should bear the risk. Knowledge about insurance enables the court to decide who can best internalize the cost. By allocating the cost of risk bearing, the court is fulfilling an ideal of social responsibility.
· Lord Keith in Murphy v Brentwood: the house buyer had been compensated already by his insurance company, and so it was not about whether the homeowner should bear his own loss but whether the council’s insurance 
· But the law would be very incoherent and unprincipled if the availability of insurance dictated how the law developed
· But it does have some support in Stapleton’s policy arguments about risk allocation
· Professional negligence based on the extended Hedley Byrne principle means that the person who actually creates the danger is immune from liability and the professional who should have identified the danger is liable for everything
· Payne v Setchell – designers and architects whose plans lead to defects in the building are liable for negligent services under Hedley Byrne – so now we have an arbitrary distinction between builders who use their own plans and builders who use someone else’s
· The principle which ties together law on PEL, Hedley Byrne exception and defective property
· There is nothing novel about Murphy and defective property, it is consistent with all tort law on product liability: recovering loss as a result as a defect in the defective product itself is not recoverable in tort – this is what Stanley Burnton LJ meant in Robinson v PE Jones when he called Murphy the ‘orthodox and principled approach’
· Inherent defects in any form of property are not recoverable in tort but consequential damage flowing from a defect is – goes as far back as Donoghue – cannot recover for the beer, but for the physical injury
· Also explains Hedley Byrne liability – it is only when the negligent advice causes damage to something else that there may be a claim, you cannot make a claim for advice which is negligent in itself and does not cause any subsequent damage
· Burnton LJ: “The crucial distinction is between a person who supplies something which is defective and a person who supplies something which, because of its defects, causes loss or damage to