Duty Of Care And The Public Policy Issue.

2446 words - 10 pages

LAW OF TORTIntroductionThe case of Mitchell v Glasgow City Council1, hereinafter referred to as 'Mitchell v Glasgow CC' is a fascinating scenario in which the principles of the duty of care as expounded upon in the seminal case of Caparo Industries plc v Dickman2, hereinafter referred to as 'Caparo v Dickman', are tested to the extreme. This matter also references public policy issues, e.g. whether it was equitable that a public authority should be held liable for the criminal acts of a third party3 or that the matter arose out of the negligent omissions of the defendant, including others. I shall be examining them in due course.The Principles of Duty of CareAs has been mentioned earlier, the case of Caparo v Dickman laid out the tests for the usage of the Duty of Care doctrine, with assistance from prior influential cases like Donoghue v Stevenson, Anns v Merton London Borough Council and McLoughlin v O'Brian.The case of Caparo v Dickman involved financial issues where Caparo Industries was involved in the takeover of Fidelity, a company that was in poor financial health. Dickman were the auditors for Fidelity, involved in the making and publication of the annual accounts, without which Caparo might not have taken the actions they did. Upon a successful takeover of Fidelity, Caparo discovered that it was in a worse financial position than had been revealed by the directors and shareholders. Caparo then sued for damages, upon which it was held in the House of Lords that there was no responsibility of the duty of care.Lord Bridge then proceeded to state in his ratio decidendi that:"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there exists between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity' or 'neighbourhood' and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other."4In other words, to establish a duty of care involves:i) Harm must be reasonably foreseeable as a result of the defendant's conduct;--------------------------------------------1 - Mitchell v Glasgow City Council [2009] 1 AC 874, [2009] 2 WLR 481, 2009 SCLR 270, 2009 SC (HL) 21, 2009 GWD 7- 122, [2009] PTSR 778, [2009] AC 874, 2009 Hous LR 2, [2009] PIQR P13, [2009] NPC 27, [2009] UKHL 11, [2009] 3 All ER 205, [2009] HRLR 18, 2009 SLT 2472 - Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] UKHL 2, [1990] 2 AC 6053 - Iain Miller, 'Duty within bounds' (JournalOnline.co.uk, 20 April 2009) <http://www.journalonline.co.uk/Magazine/54-4/1006470.aspx> accessed 7 November 20124 - Caparo v Dickman (n 2) Pg 5ii) The parties must be in a relationship of proximity;iii) It must be fair, just and reasonable to impose liability.Relationship to Mitchell v Glasgow CCIn extrapolation,...

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