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NEGLIGENCE: Caparo Test
Stapleton: 107 LQR 249
- Central flaw in Caparo/HL approach to economic loss is assumption that difficult issues of duty should be analysed within/by analogy to established case law
Because this can "preclude consideration of factors/policies that would provide a more coherent overall approach
- By dividing cases into categories, artificial barriers would be set up and decisions would focus on irrelevant characteristics such as whether damage was caused by act or words, rather than focusing on policy issues that ought drive decision-making
- Consumers are already adequately protected by alternative means
(eg. First party insurance) so no need to recover damages for PEL
Stapleton: in Birks (ed), Frontiers of Liability
- Problem: reluctance to draw out underlying principles in tort law rather than proceed on case-by-case basis ("retreat by appellate courts from broad principles to timid pragmatism")
o Consequence: expansion in kinds of claim possible increases strain that negligence has on tort law
-Manufacturers/builders sued successfully for not engaging in expensive post-supply surveillance
-Criminal victims suing their assailants in tort
-Victims of passive smoking suing their parents
-Local authority sued for not having made sure C was adopted
-Claims for one party failing to control another
- Retreat to incrementalism motivated by danger of liability for economic loss getting out of hand
Problem with incremental approach is that its principles are meaningless and give no guidance to how the law should develop
Often tests like "proximity" etc. are only convenient labels placed after decision has been reached on other unenunciated grounds
"Pre-judged pockets" approach unsatisfactory because cases often have more than one judicially important factor - by focusing on one factor, courts risk obscuring others that are equally important Flaw in Caparo approach is it implies that courts will understand which cluster of decided cases a new case is best associated with
Solution: stop starting with search for pockets of caselaw and instead balance pro-liability and countervailing factors before deciding whether to impose liability
Problems with current approach:
o Confusing and awkward dicta: Smith v Bush and D & F
Estates reached opposite conclusions and invoked "consumer protection" to justify both
Overprotection of business interests: courts failed to draw out a general policy of not assisting people who could have protected themselves through other means
Courts failed to provide doctrinal understanding of cases where compensation is justified but that don't fit into a recognized pocket of cases (Ross v Caunters)-Stapleton: 111 LQR 301
- In order to contain law of negligence courts must look for coherent principles regarding countervailing factors (more important to look for when liability is not imposed than when it is)
- Principle of restraint: alternate means of protection
- Restraint is desirable because currently tort rights are often denied to private citizens and reorienting tort law towards denying protection to commercial profit seekers is consistent with protecting injured private citizens
Stevens, Torts and Rights (OUP 2007), pp 1-3 and 20-43. (might also need to look at 3-15).
- Tort law is not concerned with the infliction of loss, but the infringement of rights
- Law of negligence characterized by imposing liability unless there is a convincing reason to deny it (Anns and three stage test)
- A better conception is viewing tort as an infringement of rights -
this is inconsistent with principles such as slander, which is actionable only upon proof of consequential loss
- Economic loss is not without more actionable, a position difficult to justify under a loss-based approach
- Possible explanation: avoiding indeterminate liability
-This is not always the case - the usual case is a purchaser of defective things (Murphy v Brentwood)
where the only possible claimant is the purchaser and economic loss the value of the loss
-There are indeterminacy problems in other contexts that aren't seen as sufficient to exclude liability
-Stapleton tried to distinguish between extensive number and indeterminate number, but no number is enough to justify an exclusionary rule: the number resulting from a chemical leak may be uncertain for a long time, but this doesn't provide D with a privilege to poison
o Right not to have economic harm inflicted would deter competition and freedom of speech (eg. Greenpeace describing Esso as "the world's number one climate criminal"
initiating a boycott of its products)
-Not general application
Economic loss is less important than other forms of loss
Hedley Byrne v Heller  AC 465
Facts: C, who planned to place orders for a company and asked bankers to enquire into its financial stability. Bankers approached D who gave favourable responses but stipulated that these statements were made
"without responsibility" and no fees were charged. C relied upon the references and suffered PEL. Brought action against D.
Held (HL by majority): a negligent misrepresentation may give rise to a cause of action even in the absence of a contract. But this case involves an express disclaimer so no such duty is implied.
Dissenters: even without disclaimer, it is doubtful whether a duty exists -
arguable that the only duty would be to give an honest answer.
- Donoghue has no direct bearing on this case because although it may encourage us to develop existing lines of argument it cannot allow us to disregard them
- Many differences between acts and words:
o Words casually expressed with foresight of influencing audience cannot lead to liability in the same way as that made in a professional setting, but casually circulated articles can lead to liability (manufacturer may have claim against
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