The three stage test[edit]

Following the establishment of the two stage test for a duty of care, there was a marked judicial retreat from the test, which was widely seen as being too inclusive, and being too easily applicable to cases which might be contrary to public policy.[13] The test was formally overruled in Murphy v Brentwood District Council,[14] where the House of Lords invoked the Practice Statement to depart from the Anns test. The resultant test for a duty of care - which remains good law today - can be found in the judgments of Caparo Industries plc v Dickman.[15] A large criticism of the Anns test had been that it combined the test for proximity of relationship with foreseeability of harm.[16] Whereas Lord Atkin's neighbour principle emphasised a need for both a proximate relationship, as well as a foreseeability of harm, the Anns test did not make such a clear distinction. Richard Kidner has stated that this led the courts to sometimes ignore relevant policy considerations,[17] and to encourage "lazy thinking and woolly analysis."[18] The resounding test attempts to reconcile the need for a control device, proximity of relationship, with foreseeability of harm. Lord Oliver's speech in Caparo Industries plc v Dickman surmises the test for a duty of care:[19]

  • The harm which occurred must be a reasonable foreseeable result of the defendant's conduct;
  • A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage;
  • It is fair, just and reasonable to impose liability.

In reintroducing the need for proximity as a central control device, it has been stated that these three stages are 'ingredients' of liability, rather than tests in their own right.[20] For example, liability can arise between complete strangers, where positive acts involving foreseeable physical harm occur; where negligent omissions and misstatements occur however, it is necessary to show a proximate relationship, as well as a foreseeability of harm.[21]

 

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