Arguments of Public Policy

Once it is determined that a claim is justiciable, whether liability will be imposed on a public authority depends on the application of ‘ordinary principles of negligence’, and this will mean that the claimant must establish he or she was owed a duty of care. Where it has been widely recognized in similar past cases that a duty of care is owed, liability is dependent only on establishing carelessness and causation, and the court will not consider the issue of ‘duty’ at all. Where it is less clear that a duty is owed, because we are dealing with a novel category of case in which duties have not been recognized previously, the tripartite test set out in the judgment of Lord Bridge in Caparo Industries Plc v Dickman, which we consider in more detail in Chapter 3, is applied. Pursuant to the test, the courts are to determine, first, whether harm was reasonably foreseeable, secondly, whether the claimant and defendant were in a sufficiently ‘proximate’ relationship to one another, and, thirdly, whether imposition of a duty of care would be ‘fair, just and reasonable’. The first two elements of the Caparo test are considered in Chapter 3. In this chapter we examine the third limb of the Caparo test.