Introduction
The concept of a ‘duty of care’ stands as a cornerstone of the tort of negligence in English law, determining whether a defendant owes a legal obligation to avoid causing harm to a claimant. Lord Toulson’s statement in Michael v Chief Constable of South Wales (2015) encapsulates the courts’ approach to developing this principle, emphasising an incremental process guided by precedent, analogy, and a balance of policy considerations. This essay critically examines the courts’ approach to establishing a duty of care, exploring how incrementalism shapes judicial decision-making, the role of policy, and the pursuit of coherence in the law. By analysing key cases and scholarly perspectives, it argues that while the incremental approach offers flexibility and adaptability, it can also lead to uncertainty and inconsistency in certain contexts.
The Incremental Nature of Duty of Care Development
The development of the duty of care has historically been marked by a cautious, step-by-step progression rather than sweeping reforms. This incremental approach was crystallised in the landmark case of Donoghue v Stevenson (1932), where Lord Atkin introduced the ‘neighbour principle,’ establishing that individuals owe a duty of care to those who might reasonably be affected by their actions (Atkin, 1932). This decision did not emerge in isolation but built upon earlier notions of liability for harm, demonstrating the courts’ preference for gradual evolution over radical change.
Subsequent cases have continued this trend, refining the scope of duty through analogy and precedent. For instance, in Home Office v Dorset Yacht Co Ltd (1970), the House of Lords extended the duty of care to public authorities for the actions of third parties under their control, albeit in limited circumstances. Lord Reid explicitly noted the importance of building upon existing principles rather than creating entirely new categories of liability (Reid, 1970). This exemplifies Lord Toulson’s observation in Michael that courts examine “how far the law has gone and where it has refrained from going” before deciding whether to extend liability. Such an approach ensures that the law remains grounded in established principles, avoiding unpredictable lurches that could undermine legal certainty.
However, this incrementalism is not without critique. While it provides stability, it can result in a lack of clarity when novel situations arise. The courts’ reluctance to take ‘giant steps’ may leave certain claimants without remedy if their circumstances fall outside recognised categories, raising questions about whether justice is always served by such caution.
The Role of Analogy and Earlier Limitations
Central to the incremental approach is the use of analogy to extend or restrict the duty of care to new situations. Courts often draw comparisons with decided cases to determine whether a duty should be imposed. A clear example is Caparo Industries plc v Dickman (1990), where the House of Lords formulated a three-stage test—foreseeability, proximity, and whether it is fair, just, and reasonable to impose a duty—to guide such decisions. This test emerged from earlier principles but was adapted to address modern complexities, reflecting Lord Toulson’s mention of examining whether “an earlier limitation is no longer logically or socially justifiable” (Lord Toulson, 2015).
The application of analogy can be seen in cases involving psychiatric harm, where the courts have incrementally expanded liability while retaining strict limitations. Initially, in McLoughlin v O’Brian (1983), a duty was recognised for claimants witnessing traumatic events involving close relatives, provided they were within the vicinity of the incident. Later, in Alcock v Chief Constable of South Yorkshire Police (1992), proximity requirements were further clarified following the Hillsborough disaster, restricting recovery to those with close ties to the victim and direct perception of the event. These decisions illustrate how courts build upon past rulings to adapt to changing social norms, yet maintain boundaries to prevent an overload of claims.
Critically, the reliance on analogy can sometimes appear arbitrary, as it depends on judicial interpretation of similarity between cases. This subjectivity risks inconsistent outcomes, as different judges may draw differing conclusions from the same precedent, potentially undermining the coherence Lord Toulson advocates.
Policy Considerations and the Balance of Interests
Lord Toulson’s statement highlights the importance of policy considerations in shaping the duty of care, acknowledging that courts often weigh competing social and economic factors. This is evident in cases where imposing a duty could have far-reaching implications. For example, in Hill v Chief Constable of West Yorkshire (1989), the House of Lords declined to impose a duty on the police for failing to apprehend a criminal, citing the risk of defensive policing and the potential burden on public resources. Similarly, in Michael v Chief Constable of South Wales (2015), the Supreme Court refused to extend a duty of care to police for failing to respond adequately to an emergency call, again prioritising policy concerns over individual justice.
While policy-driven decisions aim to protect broader societal interests, they can result in perceived unfairness to claimants. Indeed, the emphasis on avoiding a ‘floodgates’ scenario—whereby recognising a duty could lead to an unmanageable number of claims—often overshadows the need to remedy individual harm. Scholars such as Weir (2006) argue that this approach reflects a conservative judicial mindset, prioritising institutional interests over evolving social expectations. Therefore, while policy is a necessary element of the court’s toolkit, its application sometimes lacks transparency, making it difficult for practitioners and claimants to predict outcomes.
The Pursuit of Overall Coherence
A key aspect of Lord Toulson’s statement is the judiciary’s commitment to “overall coherence” in the law of negligence. This involves ensuring that the imposition of a duty of care aligns with broader legal principles and societal values. The Caparo test, with its focus on fairness, justice, and reasonableness, serves as a mechanism to achieve this balance. However, coherence can be elusive when policy and precedent pull in different directions. For instance, the refusal to impose a duty on public authorities in cases like Hill and Michael contrasts with decisions in other areas, such as medical negligence, where duties are more readily recognised (as seen in Bolam v Friern Hospital Management Committee, 1957).
This inconsistency highlights a limitation of the incremental approach: while it seeks coherence within specific categories of cases, it can struggle to maintain uniformity across the tort of negligence as a whole. Arguably, greater judicial willingness to revisit outdated limitations, as Lord Toulson suggests, could help address these disparities. Yet, the cautious nature of incremental development often prioritises stability over bold reform, potentially at the expense of a truly cohesive framework.
Conclusion
In conclusion, the courts’ approach to the duty of care in the tort of negligence reflects a deeply incremental process, guided by precedent, analogy, and policy considerations, as articulated by Lord Toulson in Michael v Chief Constable of South Wales. This method allows the law to adapt to changing social contexts while maintaining a degree of predictability, as seen in the evolution from Donoghue v Stevenson to modern formulations like the Caparo test. However, the reliance on incrementalism can introduce uncertainty and inconsistency, particularly when policy concerns override individual justice or when analogies are applied unevenly. Furthermore, the pursuit of coherence remains challenging in a fragmented legal landscape. Ultimately, while the incremental approach offers a pragmatic framework for developing the duty of care, it must be balanced with a readiness to address outdated limitations to ensure that the law remains both just and responsive to contemporary needs.
References
- Atkin, L. (1932) Donoghue v Stevenson. [1932] AC 562.
- Lord Toulson (2015) Michael v Chief Constable of South Wales Police. [2015] UKSC 2.
- Reid, L. (1970) Home Office v Dorset Yacht Co Ltd. [1970] AC 1004.
- Weir, T. (2006) An Introduction to Tort Law. 2nd edn. Oxford: Oxford University Press.
