I don’t think that Lord Reed could have been clearer in disavowing the idea of a three-stage Caparo ‘test’ in duty of care cases. Rob said it would have been better if the UKSC had killed off the Caparo ‘test’ altogether, but looking at his judgment again I think that is precisely what Lord Reed has done, while holding on to some of the language from the third stage. Quite rightly, Lord Reed distinguishes what he calls the ‘Caparo approach’ (reasoning by analogy from existing cases etc), which is a reference to what was actually said in Caparo, from the idea of a Caparo ‘test’, which is entirely contrary to the spirit of the original decision. Following on from Michael v CC South Wales, where Lord Toulson launched his scathing attack on the interpretation of Caparo as laying down a general test, it would surely be very brave of counsel or a lower court judge to employ the three-stage ‘test’ in the future.

 

As for the presence of the Caparo elements in Lord Reed’s judgment in Robinson, critics of Caparo do not deny that foreseeability plays a role in the duty enquiry, which deals with (1). It also deals with (2), as these quotations quite clearly come from a discussion of foreseeability (Lord Reed’s point being that because the claimant was nearby it was foreseeable that she might be injured by the police officers’ actions). And as for (3), the implication seems to be that to ‘put in play a legal issue that is not determined simply because foreseeability and proximity are present’ necessarily involves a particular kind of policy analysis, an argument that rests on the assumption that something like the Caparo framework is in play, thereby begging the question we are trying to answer.

 

And yes of course the duty of care enquiry will often have a normative dimension – though of course to what extent it has one will depend on the level of the decision and the applicability of existing precedents – but since when did that mean that the courts were constrained to employ a ‘test’ that was never even intended as a test (and ‘laid down’ in a case in which both Lord Bridge and Lord Oliver disavowed general duty tests), the key stages of which are meaningless (proximity) and tautologous (fair, just and reasonable)?

 

It’s also worth emphasising that in disavowing the test the UKSC is not departing in a significant way from its own earlier practice. As James Plunkett shows in his recently published monograph The Duty of Care in Negligence (Hart, 2018), p 184, from 1985-2015 the House of Lords/UKSC used the Caparo test in only about a quarter of its decisions on duty of care questions. Even allowing for the fact that Caparo was decided five years into that time period, it has clearly never been the dominant approach at the ultimate appeal level in the UK, but has tended to be used more frequently in the lower courts, where (as in this case) it has almost always obscured the real issues, rather than illuminated them.

 

all best

 

Donal

 

 

Dear Colleagues,

 

If this case is supposed to represent a ‘retreat from Caparo’, then it appears to have been very unsuccessful because it is quite clear that all of the Caparo elements are present in the main judgment. We don’t even have to look at what Lord Mance says about method. Thus we find in Robinson reference to:

 

Foreseeability – ‘… it was reasonably foreseeable that if the arrest was attempted at a time when pedestrians … were close to Williams [suspect being arrested], they might be knocked into and injured… That reasonably foreseeable risk of injury was sufficient to impose on the officers a duty of care towards the pedestrians in the immediate vicinity when the arrest was being attempted…’: para 74

 

Proximity – ‘As they struggled, the men [police and suspect] knocked into Mrs Robinson and they all fell to the ground, with Mrs Robinson underneath’: para 1; ‘Pedestrians were passing in close vicinity to Williams…  [I]f the arrest was attempted at a time when pedestrians … were close to Williams, they might be knocked into and injured’: para 74. Can we deny that this is reasoning about proximity between persons?

 

Policy – ‘The principal question which has to be decided in the appeal is whether the officers owed a duty of care to Mrs Robinson’: para 2; and: ‘Did the police officers owe a duty of care to Mrs Robinson?’: para 20. Just to ask these questions is to put in play a legal issue that is not determined simply because foreseeability and proximity are present.

 

Lord Reed becomes more explicit about this when he says ‘where established principles do not provide an answer [and indeed there was obvious confusion about this matter on the existing authorities] … the courts need to go beyond those principles in order to decide whether a duty of care should be recognised… The courts … have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is “fair just and reasonable”’: para 27.

 

Whether you call the final stage of Caparo one of policy or ‘judgment’, the real point is that the question is one about whether a norm is to be created or continued – ie, a norm about the need for care between classes of person.

 

What if there is existing precedent? Does this mean that there is no need to consider the normative dimension? The idea that just because there is existing authority one way or another means that there is no need to consider the continuing salience of the norm of duty or no-duty is obviously wrong. As Barbara Fried writes in her article ‘The limits of a non-consequentialist approach to tort’ (2012) 18 Legal Theory 231, ‘it is easy to lose sight of the fact that what is is entitled at most to a presumption that it is right. It might be wrong. At some point, the presumption of rightness has to be defended…’.

 

In my opinion, there is no escape from the logical basis of the three stage Caparo test in novel cases. There is no escape from the normative dimension of any consideration of the existing authorities. If either of these propositions can be disavowed, Robinson did not do it.

 

 

 

Definitely a welcome decision in many respects, not least because (a) it overturned a very dangerous decision below, and (b) it represents a significant milestone in what we might now term the ‘retreat from Caparo’.

 

There is, however, a clear error in para 39, where it is said that “Gorringe v Calderdale Metropolitan Borough Council … made it clear that the principle which had been applied in Stovin v Wise in relation to a statutory duty was also applicable to statutory powers”. That should be the other way round….

 

all best

 

Donal