Negligence Evaluation

• To impose liability for any loss suffered by anyone as a result of negligence would expose people to unpredictable liability and create a compensation culture. The Robinson approach has led to an incremental approach to Duty of Care, which involves deciding new cases on the basis of similar cases already decided. This is a good thing in that it deters speculative claims and ensures certainty in the law.
• However, this approach may prevent claims that have merit and leave

  deserving Claimants without compensation. For example, in ABC v St

  George’s Healthcare NHS Trust (2017)
• Developing the law on a case-by-case basis can be a slow process.
• The third part of the Caparo test allows the Court to decide, even though harm is foreseeable and the parties are sufficiently close, whether it is fair, just and reasonable to impose a Duty of Care. This decision is strongly based on public policy, i.e. what is best for society as a whole. Because Judges are unelected, they have often been criticised as unsuited to making these social judgments.
• The Courts have been reluctant to impose a Duty of Care if it would give rise to a large volume of claims. This is known as the “floodgates” argument. It was used in Alcock v CC of West Yorkshire (1992) where claims against the police from family of the Hillsborough stadium victims were rejected, partly due to the number of claims and the cost.
• However, Judges seem more willing to impose a Duty if it will act as a deterrent or raise standards of care in the future. This can be seen in Smolden v Whitworth & Nolan (1997), in which a referee was held liable for failing to ensure players’ safety. This decision encourages a more responsible approach from other referees.
• Actions against public bodies such as the police, hospitals and rescue services may fail on the third part of the Caparo test because these groups provide a public service (which is good for society) paid for from public funds (which would be seriously depleted if too many claims succeeded).
• In Hill v CC West Yorkshire (1988), the police were held not to owe a duty to potential victims of a crime after releasing a suspected killer through lack of evidence. The Court felt that the threat of being sued could make the police less efficient in carrying out their duties and divert them from their primary function of preventing crime and protecting the public. This was not in the public interest, so it was not fair, just and reasonable to impose a duty.
• However, it would be unfair for the police to enjoy blanket immunity from negligence claims. In Robinson v CC West Yorkshire (2018)
• There were no policy reasons to exclude a duty as it was to a limited group of people and would not be detrimental to policing generally – so the claim succeeded. This ensures justice for the claimant.