The Three Stage Test
The Three Stage Test
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. The test was formally overruled in Murphy v Brentwood District Council, 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. A large criticism of the Anns test had been that it combined the test for proximity of relationship with forseeability of harm. Whereas Lord Atkin’s neighbour principle emphasised a need for both a proximate relationship, as well as a forseeability of harm, the Anns test did not make such a clear distinction. Richard Kinder has stated that this led the courts to sometimes ignore relevant policy considerations, and to encourage “lazy thinking and woolly analysis.” The resounding test attempts to reconcile the need for a control device, proximity of relationship, with forseeability of harm. Lord Oliver’s speech in Caparo Industries plc v Dickman surmises the test for a Duty of Care:
- 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. 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 forseeability of harm.
