The Exercise of Judicial Discretion - Essay Example

To what extent are the tests used by the courts to determine the existence of a duty of care simply a shroud for the exercise of judicial discretion?In order to determine whether the duty of care test is a shroud for the exercise of judicial discretion it is necessary to examine how the courts establish that a duty of care is owing. Over the years several attempts have been made at defining when a duty of care is owed to another. In trying to determine whether a duty of care was owed the courts tried to categorise the cases by their specific facts and similarities. Lord Atkin decided that this system was haphazard and fraught with problems. He felt that there was a need for a general principle from which the duty of care test could be based. In Donoghue v Stevenson (1932)1, whilst recognising the need for a specific principle Lord Atkin was also concerned that "To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials." Despite his reservation he managed to formulate a test that later became know as the ‘neighbour’ test. Under this principle Lord Atkin stated "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." Although this case is still recognised as the basic premise on which to base the duty of care test, subsequent cases have recognised the gaps in this definition and have reformulated the test. Lord Reid in Dorset Yacht Co. Ltd. v Home Office (1970)2 made the observation that “Donoghue v Stevenson may be regarded as a milestone, and the well known passage in Lord Atkins speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances." Lord Wilberforce attempted to formulate a general principle in Anns v Merton London Borough Council (1978)3 . Whilst acknowledging the significance of cases such as Donoghue v Stevenson and the Dorset Yacht Co. Ltd. v Home Office he pointed out that it should not be always necessary to have to apply the principles I these cases in order to determine that a duty of care has arisen. In this case he made the point that in order to establish that a duty is owed the judge should “First…ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.” Despite the attempts that have been made to come up with a general principle for defining a duty of care cases still continue to arise which suggest that a single general principle is unachievable4. In recent case law the test of foreseeability of damage whereby the courts will consider whether a hypothetical reasonable person would have foreseen the damage has become commonplace5. This test is used alongside the proximity test or neighbour test as used in Donoghue v Stevenson. In making their decision the courts have to consider whether it is fair, just and reasonable to impose such a duty on one party for the benefit of another. Although general guidelines are given by which judges can impose a duty of care on a party, as there are no firm principles for the application of the test the judges are often entitled to interpret the duty of care test in the manner they see fit. As mentioned above the judge is supposed to consider whether it is fair, just and reasonable to impose a duty of care. This places a subjective role on the judge in allowing them to determine what should be regarded as fair, just and reasonable. Obviously from the point of view of the respondent the imposition of a duty of care is likely to be regarded as unfair. By allowing a judge to decide whether it is just and fair to impose a duty of care on respondent similar cases can provide completely different results. It could be argued that because of the inclusion of the element of reasonableness judges can ignore clear cases where a duty of care should be owed. One such case where the judge exercised their discretion over whether a duty of care was owing was X (Minors) v Bedfordshire CC [1995]6. In this case the judge stated that the local authority ought to owe a duty of care to the plaintiffs, however, given the nature of the harm caused it was not reasonable for the authority to be aware of the abuse the plaintiffs had been suffering. In this case the court stated that if it could be proven that the local authority had breached a statutory duty in respect of the claimants then it would be reasonable to impose liability on them. It follows from the above that the test for a duty of care has now enabled judges to exercise judicial discretion in situations where ordinarily a duty of care might seem inevitable. This discretionary power can in itself lead to an unfair result for the plaintiff if the judge feels that the harm was not reasonably foreseeable and that it would be unreasonable to import liability onto the respondent. Bibliography Clerk and Lindsell on Torts, (18th ed. Sweet & Maxwell, London, 2000), Chap. 10. Cooke, J, Law of Tort, 7th Ed, 2005, Pearson Education Elliott, C & Quinn, F, Tort Law, 2005, Pearson Education Harvey & Marston, Cases & Commentary on Tort, 3rd Ed, 1998, Pitman Publishing Rogers, W V H, Winfield and Jolowicz on Tort, 2006, 17th Ed, Sweet & Maxwell Weir, T, Tort Law, 2002, Oxford University Press Anns v Merton London Borough Council (1978) AC 728, at 751-752 Donoghue v Stevenson (1932) AC 562 Dorset Yacht Co. Ltd. v Home Office (1970) AC 1004 Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd. (1985) AC 210 Hill v Chief Constable of West Yorkshire (1989) AC 53 Roe v Minister of Health (1954) 2 AER 131 Rowling v Takaro Properties Ltd. (1988) AC 473 X (Minors) v Bedfordshire CC [1995] 2 A.C. 633; [1995] 3 W.L.R. 152; [1995] 3 All E.R. 353; [1995] 2 F.L.R. 276; [1995] 3 F.C.R. 337; 94 L.G.R. 313; (1995) 7 Admin. L.R. 705; [1995] Fam. Law 537; (1996) 160 L.G. Rev. 123; (1996) 160 L.G. Rev. 103; (1995) 145 N.L.J. 993; Times, June 30, 1995; Independent, June 30, 1995 Yuen Kun Yeu v Attorney-General of Hong Kong (1988) AC 175 Read More