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                  Duty of Care - Policy factors (Fair, just  and reasonable)
 
 
 

 

In applying the third stage of the Caparo test, of fair, just and reasonable, the courts take certain policy factors into account. Policy factors which may influence the court include such issues as:

 
 
 
Loss allocation:
 
Who can afford to bear the loss?
 
Which of the parties have insurance/ is the situation one subject to compulsory insurance?
 
Is the defendant a publicly funded body?
 
 
The floodgates:-
 
Will imposing liability lead to a high volume of new claims?
 
What effect would this have on cost of insurance or its availability?
 
Will the courts be able to cope with the volume of cases?
 
 
 
 
 The practical effects of imposing liability
 
 
Will the imposition of a duty of care act as a deterrent or raise standards? 
 
Will imposing a duty have an adverse effect on decision making?
 
Will it effect the allocation of resources away from necessities?  
 
 

These issues often arise in the context of publicly funded bodies and in particular in relation to the police, the CPS, Local authorities and emergency services.


 
 

 
 
1. The police

 

a).Duty in detecting crime:

 
Alexandrou v Oxford [1993] 4 All ER 328  Case summary


 
Osman v Ferguson [1993] 4 All ER 344  Case summary

 
 
Osman v United Kingdom Case No 87/1997/871/1083  Case summary
 


b). No duty of care to prevent injury:

 
 
Ancell v McDermott [1993] 4 All ER 355  Case summary

 Sacco v Chief Constable of South Wales [1998] EWCA Civ 843  Case summary
 
 
 
c). No duty is owed to provide protection, support and assistance to victims and witnesses of crime:

 
 
 
 
 
The common law principles are not to be extended to comply with the ECHR where the case involves death threats and right to life:
 
 
 
 
 
 
 
 
 
d. A duty of care is owed in respect of selecting which officers have access to firearms:
 
 
 
 
 
e. A duty is owed in relation to the handling of confidential information:
 
 


 
 
2. The CPS

The Crown Prosecution Service do not owe a duty of care in decision making regarding prosecutions:
 
 
 
 
3. Solicitors and barristers
 
 
Barristers and solicitors used to be immune from negligence claims resulting from their conduct in court proceedings:
 


Rondel v Worsely [1967] 3 WLR 1666  Case summary

 
 
 
This immunity was subsequently lifted and solicitors and barristers now owe a duty of care in the conduct of advocacy in court:
 
Arthur Hall v Simons [2000] 3 WLR 543   Case summary

 
 
3. Local authorities:

 
The courts are reluctant to impose liability on local authorities particularly where it would impact on decision making or allocation of resources:

 
 
 
Stovin v Wise [1996] 3 WLR 389  Case summary
 
 
 
 
Compare:
 
 
Phelps v Hillingdon LBC [2000] 3 WLR 776

W v Essex County Council [2000] 2 WLR 601    Case summary
 
 
4. Emergency services:

 

A duty of care may arise where ambulance services accept a call and do not arrive within a reasonable time without being able to provide an explanation for the delay:
 
 
Kent v Griffiths [2000] 2 WLR 1158    Case summary
 
 
A duty  of care will be imposed where the emergency service attend and their actions increase the damage:

 


See also the duty owed to fire fighters:
 
 
Ogwo v Taylor [1987] 3 WLR 1145    Case summary

 
Salmon v Seafarer Restaurant [1983] 3 All ER 729    Case summary


 
Other matters relating to policy
 

 
A duty will not be imposed if it would disrupt existing agreed liabilities:

 
 
A duty of care extends to those who are not yet born: