Tort Law: Incremental Approach to Duty of Care and Negligence

This essay delves into the intricacies of Tort Law, tracing the historical development of negligence and the duty of care. It begins with an introduction to the foundational principles established in cases like Donoghue v. Stevenson, and then explores the incremental approach courts have adopted in extending liability. The main body examines key cases such as Langridge v Levy, Kent v Griffiths, and Michael v. Chief Constable of South Wales, critically analyzing the evolution of legal precedents and the factors influencing the recognition of a duty of care. The essay discusses the significance of the Caparo v Dickman test and the Supreme Court's stance on the incremental approach, emphasizing the importance of existing authority and policy considerations in determining legal outcomes. It concludes by summarizing the practical application of these principles in legal judgments and arguments, particularly in professional liability contexts, highlighting the ongoing quest for fairness, reasonableness, and justice within the framework of Tort Law.

TORT LAW

Table of Contents
INTRODUCTION................................................................................................................................3
MAIN BODY.......................................................................................................................................3
CONCLUSIONS..................................................................................................................................7
REFERENCES.....................................................................................................................................8

INTRODUCTION
The law of negligence exists since Roman's and this progress is an incremental process
which took hundreds of year to form. The law of negligence was firstly included in the case of
Donoghue v. Stevenson and have been developed since. This mentions that the claimant have to
prove that defendant owe a breach of duty for care, duty of care, caused damage and damage are not
been remote(De, 2020). The law of negligence developed through an incremental process instead of
giant steps. The method established for the court includes examination which decides case to see
that how far this law has gone and where this abstain from going(Hordern, 2020). From the analysis
this looks to saw that argument through analogy for extending liability in new situation, or whether
earlier limitation is no longer socially or logically justifiable. In doing so this make regard as need
of overall coherence. Frequently there is a mixture of policy consider to take into account.
MAIN BODY
Ahead of development of recent negligence, there was less cases and direct contract will be
imposed as duty of care, which made this nearly impossible for third party to make claims. In case
of Langridge v Levy, the judgement was delivered which states that the plaintiff can not sue in
contract as Langridge did not buy any defective gun. The floodgates were open through allowing
imposition of duty of care, moreove, the plaintiff won this case on the basis of Fraud as the gun was
made of high quality. In accordance of floodgates the case of Kent v Griffiths is also an significant
case. The general rule of this is that services of emergency is not liable in negligence as related to
inadequate responses. Reasons for this includes: this is immoral for sue against any one try to help
you and services of emergency may be busy with cases of higher priority. Moreover, in a particular
case, the person who claims won because of reasonable foreseeability in which he suffers further
illness. Factors of sufficient proximity was constituted when services for ambulance accept call and
dispatched the ambulance and any of negligence happen when the patient was not high on the list of
priority(Dupras, Saulnier and Joly, 2019).
In case of Michael v. Chief Constable of South Wales (2015) the Lord Toulson, critically examines
the courts approach to the duty of care in tort of negligence in light of these statements-
1. Question of Interpretation:
 The key argument in this: The duty of care have to be incrementally extended. The general
goal is coherence, although this have to be take into account policy/social consideration.
 Overall thesis: Proper incrementation is not feasible way for the development of law, and so
this is how this developed;

◦ As matter for logic, the giant steps are mostly needed in time to time if laws taken into
account the goals for being logically or socially relevant.
◦ Consideration of Policy mainly limit ability of law for being coherent(Gómez and
Sánchez, 2020).
2. Points of discussion:
 Need to explain development of incremental process: Since there are some new situations
which is fully-developed law of negligence, do not cover, the direct controlling mechanism
located on the law of negligence the need of analogy in existing cases as Caparo v Dickman
plc. In this case the court have rejected, a more general presumption is that there are certain
duty of care with limited exceptions. Explaining that how this led in judicial resistance for
finding new category of liability in which there is nothing:
◦ General unwillingness which recognize new heads for damage: This is been explained
in English law by Page v Smith that there is only three recognized heads of damage
(psychiatric harm, economic loss in some circumstances and physical injury).
◦ In case of Michael v Chief Constable, Public authority is mentioned.
◦ Actual economic loss, strict attachment to the rule of Hedley given in the case of CEC v
Barclays.
◦ Psychiatric harm: Alcock and recently Taylor v A Novo strictly correspond to three
controlling mechanism in Alcocko(Gordon, 2019).
 Socially unjustifiable/ Removal of logically limitations: The problem with the argument
made by Lord Toulson is as per the matter of logic, this is very hard for a law to evolve in
few steps and at same time this can be removed logically socially/incoherent limitations of
unjustifiable, as this requires radical departure through the incremental principles. In past
few years, the desire of judges to stick within limits which were previously established has
been won out of removing socially/logically unjustifiable limitations.
3. The great Illusion:
 The quest is for yardstick and universal formula for deciding that the duty of care which
is owned has been elusive.
 Concept of fairness and proximity is not hypersensitive of any definition which makes
them useful as practical test.
 In the case of Caparo Industries plc v. Dickman, Lord Bridge explains the three stage test
which has been treated as blue print of deciding case when this clear that this was not
intended for being any such thing(Goudkamp, 2019)(.
4. Attraction to the Three-Stage Test:
 This is easy to be mislead through the previous exposition of three stage test in case of

Smith v. Eric S Bush.
 The test of Three stage provides a convenient structure for judgement and arguments.
5. Ramming the message home
 In case of Michael v. Chief Constable of South Wales Police, the Supreme Court repeated
that the test of three stage is not being applied.
6. Caparo properly understand the approach of Incremental:
 In Caparo Lord Roskill, Lord Bridge and Lord Oliver prefers the incremental approach as
explained by Brennan j in case of Sutherland Shire Council v. Heyman. In which he said:
“This is preferable, in my view that the law have been developing new categories of
negligence incrementally and through analogy with constituted categories, instead of a massive
extension of prima facie duty of care which restrained through indefinable consideration which
ought for negative, or for to limit the scope ore to reduce the duty or class of person to whom this is
owned”Harmon, et.al, 2018).
7. How does Incremental Approach Work in Practice?
 Basically there are two questions:
1. Does the existing or non-existence of duty of care in the fact of present case has been
established through reference in existing case law?
2. If not, should duty of care will be recognised?
 None of the thing is new in the incremental approach or look first in authority existing.
Support for both of them can be found in Hadley Byrne and Co. Ltd. v. Heller & Partners
Ltd.
 The Lord Reed again start the approach in his judgement in case of Robinson v. Chief
Constable of West Yorkshire Police. This analyse the existing case law other than resort for
test of three-stage or any other provided formula which answer in that case(Kha, 2018).
 The feature of legal significant includes existing authority analysis of the answers for
question to impose duty of care. There is overlap within the first stage and this exercise
where a question is “Does existing authority answer the question?”
 There is a clear shortage of cases in approach of incremental have been applied, other than
referring. This do not apply to Caparo in which the focus have been first on proximity and
vulnerability as touchstone, which increase recognition and other concept provides answers
in all occasion and cases references for incremental approach in common law(Edmonds,
2019).
 There are two ways where incremental approach have been adopted. The first look is at high
level, reasons of policy why a duty of care has or has not found in the case and order to
decide whether they have to implement a duty on novel, particular facts.

 In the view of incremental approach this need the court for considering policy issue which
brings question whether this is just, fair and reasonable for imposing a duty of care.
8. The policy survival: Just, Fair and reasonable
 In case of Robinson v. Chief Constable of West Yorkshire Police, Lord Mance recognise that
this was not necessary as resort to three stage test in which the facts of case fall as
establishing category, the courts were not influenced with the consideration of policy and at
the time of recognising the duty of care in these circumstances, court make choice of policy,
in which consideration such as justice, proximity, fairness and reasonableness have to
inherit(Leib and Harris, 2019).
 Reasonableness, Fairness and Justice were express on the basis of Supreme Courts decision
in the case of James Bowen v. Commissioner of Police of the Metropolis.
 The resource had policy in new situations which is shown through the decision of House of
Lords in case of Marc Rich & Co. A.G. v. Bishop Rock Marine Co Ltd. In which no case
provided any realistic analogy which is to be used as springboard in a decision one way or in
other case.
 When the question decided by the court of policy which look for establishing principles or
cumulative experience of judiciary other than subjective view for a particular judge. This
policy consider back for existing authority and to incremental approach.
 There is a riddle. The Supreme Court held that third limb of three stage test is of not a
practical value. This is truly a new case in which court asks about whether this is reasonable,
fair and just for impose a duty of care. The Supreme court suggests that various approach
have to be adopted or courts makes to do with unsatisfactory fairness or test, reasonable and
justice through as best they can? (Sampaio, 2021)
9. What this means in Practice?
 The structure of legal judgements and arguments: This will not based on the test of three
fold. Instead the focus have to be on existing authority. At the time of court appeal in
Robinson v. Chief Constable of West Yorkshire Police they decided the policy on the issue,
the Supreme Court founds answer in existing authority(Mac and Siems, 2019).
 High level analysis: in high level authority show that-
1. Where this is reasonably foreseeable which lack of care have cause death or damage to
property, any personal injury, duty of care have to be usually owed.
2. The duty of care have to be recognised in different relationships(Renan, 2018).
3. Duty of care is little likely which imposed where defendant has failed to act, even
though this damage as claimant is reasonably foreseeable.
4. The law is cagey to impose a duty of care in case of pure economic loss.

5. In which there is assumption for responsibility as duty of care will be found and
included in claim for failure to act and as pure economic loss(Sieder, Ansolabehere and
Alfonso, 2019).
 Professional Liability: The focus have to be on existing authority. This is clear that firm of
professional person owes concurrent duty of care in tort for their clients. Other decision
apply to the specific facts and this apply in circumstances of analogous. The decisions of
groups reveal principles which indicate the answer in similar cases, but different fact. High
level concepts which are assumption of responsibility have been decisive in cases where
person who is professional assumed responsibility as a non-client in some of the
way(Cutts, 2019). They provide guidance which is less clear in cases, but answers which
may lie in principles of lower level. As example, this will be found in judgements such as
dissenting judgement of Denning LJ in Candler v. Crane Christmas &co. and judgement of
Neill LJ in case of James McNaughton Paper Group Ltd. v. Hicks Anderson & Co.
(Volokh, 2018).
CONCLUSIONS
The current decision of Supreme Court is a welcome reminder which is the right staring
point in most of the cases is existing authority, which do not seek for apply criteria which is limited
in any particular value. This said, that some answers in the cases will be found through considering
issues of policy, albeit policy is rooted in the cumulative experience of judiciary.

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