Exploring the Interface Between the Common Law of Tort and

Exploring the Interface Between the Common Law of Tort and Statute Law

Annual Richard Davies Lecture

For the Personal Injuries Bar Association

29 November 2023

Philip Sales

I am grateful for the invitation from the Association to deliver the annual Richard Davies lecture.

Twenty years ago Professor Jack Beatson attacked what he termed the “oil and water” approach

to the relationship between common law and statute, which sees them as separate sources of law

which do not intermingle. But as he said: “Why should statutory manifestations of principle [...]

not be part of the armoury of the common law judge in determining a hard case and seeking to

determine what best fits the fundamental principles of the legal system?”

My lecture pursues Jack Beatson’s theme in the context of the law of tort. I want to explore how

the existence and scope of a duty of care in common law is informed by statute. This includes

examining how duty of care analysis may be bound up with considerations of public policy. Public

policy is a contested field. Where can judges look for guidance on public policy to legitimise the

way in which it is prayed in aid by the courts in their reasoning? Statutes are an important source

of guidance on public policy and so are capable of informing the courts’ approach to duty of care

questions at common law.

I will begin by examining the historical foundations of the concept of the duty of care, as that will

help to frame the analysis which follows.

1. Historical foundations of the concept of the duty of care

It was only following the emergence of an independent action for negligence that duty of care

began to play an analytical role in the determination of questions of liability.

At around the same

time, contract and tort were emerging as distinct legal entities. Generally, this distinction was

unproblematic, as actions based on non-performance of an undertaking were clearly contractual,

and actions based on the negligent causation of harm independent of any prior relationship were

clearly in tort.

By the start of the 19

century, however, procedural differences between contract and tort were

emerging. To avoid the procedural disadvantages associated with contract, plaintiffs who had

suffered an injury in the course of the negligent mis-performance of a contract began to formulate

their declarations in tort by focusing on the source of the defendant’s duty. In Boorman v Brown,

for

Lord Sales, Justice of the Supreme Court of the United Kingdom. I am grateful to my judicial assistant, Alex Hughes,

for his excellent assistance in preparing this lecture.

Jack Beatson, “The Role of Statute in the Development of Common Law Doctrine” (2001) 117 LQR 247, 252.

See James Plunkett, The Duty of Care in Negligence (2018, Hart Studies in Private Law), chapter 2.

(1842) 3 QB 511.

example, the Court of Exchequer held that a broker owed a duty to his client because “the principle

[…] would seem to be that the contract creates a duty, and the neglect to perform that duty, or the

nonfeasance, is a ground of action upon a tort.”

In this sense, then, duty was being employed as

a way of expanding the scope of the tort of negligence, by reformulating breaches of contractual

duties, which arose by reason of agreement, as breaches of duties in tort, which in other cases

arose by reason of law.

In parallel with this interaction between contract and tort, an interaction was emerging between

tort and statute in analysing the duty requirement. In Parnaby v Lancaster Canal,

for example, a

statute required the defendant canal company to maintain clear passage on the canal, and to that

end gave it powers to dredge up and remove sunken vessels. A sunken vessel was not removed,

with the result that the claimant’s boat using the canal was damaged. The claimant sued the canal

company in tort. The defendant company argued that the statute, which imposed a penalty when

a boat obstructed the canal and empowered the canal owners to remove it, was “permissive, not

imperative”.

Tindal CJ accepted that the statute did not impose a duty on the company but went

on to hold that a duty existed at common law, “not perhaps to repair the canal, or absolutely free

it from obstructions, but to take reasonable care, so long as they keep it open for the public use of

all who may choose to navigate it, that they may navigate without danger to their lives or

property.”

In the second half of the 19

century, as the action of negligence expanded, judges began to insist

that a duty of care was a necessary ingredient. The focus of the duty analysis changed from being

used to expand the scope of the action to playing an exclusionary role. One of the earliest such

cases was Degg v Midland Railway Company,

where Bramwell B held: “There is no absolute or

intrinsic negligence; it is always relative to some circumstances of time, place, or person … there

can be no action except in respect of a duty infringed”.

At the same time, considerations of policy

also started to emerge more overtly in judicial decisions. Courts were quick to deny the existence

of a duty where they felt it would lead to a significant extension in liability. In Morgan v The Vale of

Neath Railway Co,

for example, Pollock CB denied that a master owed a duty to a servant who

had been injured by the negligence of another servant because: “It appears to me that we should

be letting in a flood of litigation, were we to decide the present case in favour of the plaintiff.”

Lord Atkin’s speech in Donoghue v Stevenson sought to produce a unified analytical approach to the

tort of negligence based on the duty of care concept. It built on the attempt by Sir William Brett

MR in 1883 in Heaven v Pender

to do the same. Lord Atkin’s neighbour principle was based on the

idea of foreseeability and a rather slippery limiting notion of “proximity”.

There was resistance

to making duty of care a governing concept, including by Buckland who said it was an “unnecessary

fifth wheel on the coach”.

However, it has remained central, essentially for two reasons. First, it

provides an important yet flexible focus for attention on the precise nature of the relationship

Ibid., 526 (Tindal CJ).

(1839) 11 AD & E 223; 113 ER 400.

Ibid., 403.

Ibid., 407-8.

(1857) 1 H&N 773.

Ibid., 781–82.

(1865) 1 QB 149 (Ex).

Ibid., 155.

(1883) 11 QB 503, 509.

Donoghue v Stevenson [1932] AC 562, 580–81.

W Buckland, “The Duty to Take Care” (1935) 51 LQR 637.

between the parties and the normative implications of that in a range of contexts. Secondly, it

provides a useful basis for striking out claims at an early stage, if analysis shows no duty of care is

owed, thereby obviating the expense and delay associated with a full trial on the facts.

The modern formulation to determine the existence of the duty of care arrived with the decision

in Caparo v Dickman.

Lord Bridge observed that what emerges from the caselaw is that, “in

addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty

of care are that there should exist 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 that 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 upon the one party for the benefit of the other.”

Where a duty of care is authoritatively established in the caselaw, there is no warrant for constantly

revisiting its existence by repeated application of the “fair, just and reasonable" formula.

But

where there is an open question whether a duty of care exists in a particular context, resort to that

formula is appropriate.

2. Considerations of policy in the duty of care analysis

The third stage of the Caparo test, whether it is fair, just, and reasonable to impose a duty, invites

attention to considerations of policy.

This is inevitable, because when a court declares that a

common law duty of care exists, the state imposes legal obligations on a person. The court

performs a role which is to some degree legislative. That is so even if the process is conceived of

as a sort of recognition of something identified through the application of background legal

principles. Those background principles themselves involve resort to policy considerations. For

this purpose “policy” must be identified in a reasonably determinate way, and in a manner which

properly legitimises the court’s decision to impose the duty.

For example, in Hedley Byrne v Heller Lord Pearce said that the “sphere of the duty of care in

negligence […] depends ultimately upon the courts’ assessment of the demands of society for

protection from the carelessness of others”.

Lord Denning referred to this in the Court of Appeal

in Home Office v Dorset Yacht and said that the determination of a duty of care was “at bottom a

matter of public policy which we, as judges, must resolve”,

a comment that was later approved

by Lord Diplock in the House of Lords.

Policy considerations are perceived to play an important

part in determining questions regarding duty of care, particularly at the ultimate appellate level.

How, then, can the courts formulate a concrete guide to the policy considerations in recognising

or denying a duty of care at common law, or extending or narrowing the scope of such a duty?

[1990] 2 AC 605.

Ibid., 617-8.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [27].

Michael v Chief Constable of South Wales Police [2015] AC 1732, [160] (Lord Kerr). See also Customs and Excise

Commissioners v Barclays Bank [2007] 1 AC 181, 190 (Lord Bingham).

Cf Stephen Guest, Ronald Dworkin (2013, 3

ed, Stanford University Press), 91: policy may be a term which is “used

loosely, sometimes even just to mean that the judge has run out of good arguments.”

Hedley Byrne v Heller [1964] AC 465, 536.

[1969] 2 QB 412, 426.

[1970] AC 1004, 1058.

J. Morgan, “‘Policy Reasoning in Tort Law’: The Courts, the Law Commission and the Critics” (2009) 125 LQR 215,

215. For a further example of explicit policy reasoning, see the speech of Lord Wilberforce in the “nervous shock”

case, McLaughlin v O’Brian [1983] 1 AC 410, 421-422.

Looking to statutes can play a significant role for the courts in approaching this question. Statutes

are a concrete expression of the public interest in legal form, endorsed by the democratic

legislature. Moreover, law in the form of statutes increasingly governs in many contexts and it is

unavoidable that the courts, in exercising their quasi-legislative role to impose duties of care, have

to take account of this. A common law duty of care has to slot in alongside, and be coherent with,

any relevant statutory regime in the field of its application. In Guido Calabresi’s words, the

common law has to be a common law for the age of statutes.

3. Explicit reliance on public policy by reference to statute

In conducting the duty analysis, the common law must always give way to statute and any statutory

duty must be complied with. It therefore often makes sense to address the question of explicit

statutory rules at the outset, because statute may impose, or preclude, a duty of care.

In some cases, a statute might be found to impose a duty itself, breach of which sounds in damages

at common law. In a sense, these are simple and relatively uninteresting cases, in that statute itself

tells us the answer. In these cases, public policy is fully incorporated in the statute itself. But this

itself calls for some process of policy analysis to determine the purpose which the statute was

intended to serve.

In other cases, however, there is a more subtle interplay between statute and common law. These

are cases in which a common law rule is framed by reference to, or in the light of, public policy,

and draws on statute to inform the content of the public policy standard to be applied. The way

in which this happens is a general phenomenon, of which duty of care analysis is one part.

Leaving tort to one side for a moment, one can see this phenomenon in contract law. Public policy

may render a contract unenforceable. Changes in legislation have operated as a “catalyst” to

prompt changes in judge-made law.

An example is the law in relation to champerty and

maintenance, the doctrine which rendered unenforceable contracts to provide funding to promote

litigation.

The policy was the desire to ensure that individuals did not stir up litigation at no risk

to themselves.

But such a view began to be called into question. Legal rights ought to be capable

of enforcement, but litigation is expensive. Third party funding may be a necessary part of giving

the rule of law practical effect. The introduction of legal aid in 1949

effected an important

statutory exception to the rule against maintenance. Conditional fee agreements were introduced

by the Courts and Legal Services Act 1990.

This affected the courts’ perception of the public interest. In 2002 the Court of Appeal in Factortame

(No 8) explained that only those funding arrangements that tended to “undermine the ends of

justice” should fall foul of the prohibition on maintenance and champerty.

This opened the way

to more extensive third party funding of legal claims as a means to secure access to justice.

G. Calabresi, A Common Law for the Age of the Statutes (Harvard University Press, 1982).

See Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [3] (Lord Steyn).

M. Leeming, “Theories and Principles Underlying the Development of the Common Law” (2013) UNSW Law

Journal 36(3) 1001, 1002.

Law Commission, Proposals for the reform of the Law Relating to Maintenance and Champerty (1966), para 9; Hill v Archbold

[1968] 1 QB 686.

Wallis v Duke of Portland (1798) 3 Ves. Jun. 494, 502.

The Legal Aid and Advice Act 1949.

R (Factortame) v Secretary of State for Transport (No 8) [2003] QB 381, 400.

4. The implicit operation of public policy in duty of care analysis by reference to statute

In relation to duty of care, there are many cases where the statute confers rights or imposes

obligations but is silent on the extent to which a common law duty of care may exist alongside

them. In this category of case public policy operates implicitly, with the judicial analysis latching

onto the statutory duties to inform policy arguments in shaping common law duties.

Many judicial statements in recent tort cases make reference to the need to be “principled” in

developing the law,

with principle operating in contrast to “policy”. Certain judges have sought

to explain that the type of policy that is relevant to the determination of whether the defendant

owes a duty of care is primarily “legal” policy. The aim is perhaps to indicate that this type of policy

lies within the competence of judges.

Under Caparo, the three elements can be seen as a balance between questions of principle and

policy. The principles of “foreseeability” and “proximity” must be considered against the more

policy-driven question of whether it is “fair, just and reasonable” to impose a duty of care; but the

other two elements have a policy dimension as well. Consideration of policy in this analysis is part

of the positive process of establishing a duty of care, rather than a merely limiting factor. The

Supreme Court clarified in the Robinson case that Caparo should be seen as applying only to novel

categories of case.

Within an “established duty category”, there is no need to discuss the notions

of proximity, or of what is “fair, just and reasonable”. This is because Caparo only assists with the

consideration of extensions to established duty situations. The key contribution of Caparo was

described by the Supreme Court in the Poole Borough Council case as its emphasis on incremental

development.

Courts should determine cases on the basis of established principle, thus placing

cases within legal categories. Pragmatism, and policy, are not directly referred to as decisive.

But this leaves something of a gap: how can future courts decide when to allow incremental

development? Policy factors have to inform the determination of whether and how far to extend

a duty of care incrementally. To say that development should be incremental only tells one that

that dramatic leaps of development are ruled out. This is justified on grounds of the need to ensure

a reasonable degree of predictability in the law and by the limited role of courts to effect change

in the law without the democratic mandate of legislation. But it does not in itself tell one whether

the law ought to be developed, or in what direction. Perhaps a proposed and admittedly

incremental development is not in fact justified. How can one tell if that is so or not?

Since consideration of policy is inevitable and since statute encapsulates public policy with a

democratic imprimatur, looking at statutory duties may be an essential part of the analysis.

From the perspective of the law of tort, statutory duties can be divided into two types. The first is

duties which are clear, precise, designed to benefit a particular group including the claimant, and

intended to be actionable at common law.

Such duties are actionable through the distinct tort of

breach of statutory duty. One needs to look at the object of the statutory duty in question. As

explained in Cutler v Wandsworth Stadium: “if a statutory duty is prescribed but no remedy by way

of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action

accrues to the person who is damnified by the breach. For, if it were not so, the statute would be

See, e.g., Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, [36] (Lord Nicholls).

Robinson (n 18), [27].

GN v Poole Borough Council [2019] UKSC 25, [64].

X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 731

but a pious aspiration. But ‘where an Act […] creates an obligation, and enforces the performance

in a specified manner, we take it to be a general rule that performance cannot be enforced in any

other manner’.”

However, this general rule is subject to exceptions, which are policy-based. In Black v Fife Coal Co,

affirmed in Cutler, Lord Kinnear considered, in relation to a statutory duty on an employer to take

actions to protect employees, that there was no basis “for maintaining that a proceeding by way of

penalty is the only remedy allowed by the statute”.

This was determined by looking at the purpose

(that is, the underlying policy) of the statute to determine for whose benefit it was intended and

what could be inferred from that to be the intended remedial consequence. That statute was

intended to ensure the safety of the employees so it was held that there was a corresponding cause

of action in damages at common law for the employees where there was a breach of the duty.

This can be contrasted with the facts in Cutler, where the primary intention of the statute was to

regulate the conduct of racetracks, not to benefit bookmakers, even if “in consequence of those

regulations being observed some bookmakers [carrying on business there] will be benefited”.

The second, more usual, type of statutory duty is one which is not actionable at common law. A

very general statutory duty, or one not designed to benefit a particular group of people including

the claimant, or one that Parliament did not intend to be actionable in damages, will not be

enforceable through the action for breach of statutory duty.

Many duties where there is a criminal

or other sanction set out in the statute will fall into this category, although this may not be

conclusive. An example of a duty not actionable at common law arose in O’Rourke v Camden.

The

duty to offer accommodation to those who are homeless was not narrow and defined and was not

for the benefit of a prescribed class of people. It was a general social welfare duty. A person who

was not housed when he presented himself as homeless could not seek damages in tort, and must

instead seek judicial review.

Statutory duties may be contrasted with statutory powers which confer discretion: these specify

that the conferee of the power may do something, not that they must. Public law provides

remedies if discretion is improperly exercised, or if there is an improper failure to exercise a power.

Generally speaking, in light of the Cutler type of analysis, damages are not available in an action for

breach of public law in relation to the exercise of discretion. However, in certain situations the

general criteria under common law to identify a duty of care may be satisfied when a public

authority acts in exercise of a public law discretion, so that a common law cause of action arises.

This is an interesting and difficult area to which I will return.

At this stage, I want to highlight the extent to which statutory duties can be relevant to the common

law duty of care analysis between private persons. The existence of legislation might be taken as a

pointer of particular weight regarding the public interest, and of the direction in which the

common law should be developed. One could say that in these instances the statute operates as a

Cutler v Wandsworth Stadium Ltd [1949] AC 398, 407 (Lord Simonds).

Black v. Fife Coal Co Ltd [1912] AC 149, 165.

Ibid.

Cutler (n 36), 409.

Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832, 840 (Bankes LJ).

[1998] AC 188.

Ibid., 193.

positive social proposition, capable of drawing the common law along in the same direction of

travel.

For example, Reynolds v Times Newspapers

concerned the scope of defences available to a

newspaper which publishes an article which is defamatory of a politician. There was an established,

but narrow, defence of qualified privilege for a person who is under a duty to report on the conduct

of another, so that no liability would attach if they did so in good faith and without malice. The

defendant argued for adoption of a wider version of that defence to cover a newspaper which

reports honestly on the conduct of a leading politician, on the grounds that it is under a form of

moral obligation to report to the public on what it believes to be the truth. The House of Lords

was conscious that Parliament had passed the Human Rights Act 1998 (“HRA”) which effectively

incorporated a similar wide view of protections for fair journalism by newspapers drawn from the

case law of the Strasbourg court in relation to article 10 of the European Convention on Humant

Rights (freedom of expression), even though the Act had not yet come into force. The House took

this as one indication, among others, that it would be right for it to extend the defence of qualified

privilege at common law. The legislation showed the direction of travel of public policy, in a way

which supported and could not be taken as blocking the development of the common law.

Looking further back in time, one sees the interface between the common law and statute in the

area of the employer/employee relationship.

Historically, the primary structural feature of

employers’ liability for injuries suffered by their workmen was the doctrine of common

employment, which provided that an employer was not liable for an injury to one of his employees

where it was caused by a fellow employee’s carelessness in the course of common work with the

injured employee. The theory was that an employee had assumed the risk of carelessness of fellow

employees by agreeing to work alongside them. Exceptions to the doctrine came to be recognised,

such as the tort of breach of statutory duty. In Groves v Lord Wimborne, the Court of Appeal held

that the defence of common employment was unavailable where a worker had been injured by

machinery that, in breach of the employer’s statutory duty, had not been securely fenced.

The

statutory obligation was placed upon the employer personally, which allowed the courts to say that

a breach of it fell outside the doctrine of common employment because the doctrine was all about

the risk that a third party might breach their duty. Here, by contrast, the employer was being made

accountable for a breach of his own duty.

It was not until 1937, with the decision of the House of Lords in Wilsons and Clyde Coal Company v

English,

that the modern duty of care owed by an employer to an employee was clearly established.

Side-stepping the common employment doctrine, the House of Lords held that an employer was

deemed to owe a duty of care to his employees, which was personal to the employer and non-

delegable. Looking at the statutory schemes in place, Lord Thankerton highlighted the “fallacy” of

the argument that the employer, being under a duty to take due care in the provision of a reasonably

safe system of working, could then be absolved from that duty by the appointment of a competent

person to perform the duty.

The courts in this area were mindful of the rise in industrial

See the discussion of “social propositions” in M. Eisenberg, The Nature of the Common Law (1988) and in P. Sales,

“The Common Law: Context and Method” (2019) 135 LQR 47, 53-55.

[2001] 2 AC 127.

Ibid., see in particular: 200 (Lord Nicholls); 207–208 (Lord Steyn); 223–224 (Lord Cooke); 234 (Lord Hope).

See P. Mitchell, A History of Tort 1900-1950 (2014 CUP) chapter 8.

[1898] 2 QB 402, 406-7.

Ibid., 418.

[1938] AC 57.

Ibid., 64-65.

production methods and sought to ensure, through a re-framing of the common law duties of care

owed by employers, that employers paid compensation where those methods caused injury to their

employees. The fact that the duty was non-delegable, albeit the employer might have to appoint

an agent to carry it out, meant that the employer could not say the duty was discharged by its

appointment of a qualified person. The employer had to take the risk of that person negligently

making an error.

Although the legal relationship between employee and employer has become settled law, it should

be recalled that it was a highly political issue in the 19

and early 20

centuries. By referring to

statute, the courts had access to a legitimising source of public policy with a democratic warrant

authorised through the political process.

Similarly, the courts had to respond to the increasing use of motor vehicles in the 20

century.

In Croston v Vaughan

in 1938 the courts were faced with the question of the extent to which the

obligations under a statutory instrument informed the duty of care at common law. The trial judge

held two drivers jointly liable for injuries caused to the claimant in a road accident. The negligence

of one of them consisted in stopping suddenly and failing to give a hand signal. This finding was

challenged on appeal because the driver had used his brake light, which regulations required him

to have, and the Highway Code’s section on hand signals stated that they should be given “where

mechanical indicators are not used”.

For the majority of the Court of Appeal, compliance with

the Code and the regulatory requirement was insufficient to rebut an allegation of failure to take

reasonable care. As Scott LJ put it, the Code and the regulations “still leave upon every driver a

common law duty of taking action outside the Code and the regulations in circumstances where it

becomes essential.”

For Slesser LJ, however, the relationship between the common law and the

regulations was being made too sophisticated: a driver who complied with the statutory regulations

on rear brake lights had, by definition, given adequate warning to the car behind and so had not

been negligent.

On Slesser LJ’s view, the negligence standard was given by the regulation. On the

view of the majority, the common law imposed its own autonomous standard. The difference in

approach highlights a basic choice which falls to be made in a range of contexts, including whether

a common law duty of care can be identified in the first place.

In general terms, the majority of statutes enacted in the area of the law of obligations presuppose

the existence of common law duties and can only work within the framework given by them.

For

example, the Law Reform (Contributory Negligence) Act 1945 makes no sense other than by

presupposing the common law of tort and legislating to modify it to some degree.

In some circumstances, however, the implication from the enactment of a statutory regime is that

Parliament has removed the ability for the courts to identify a duty of care by adopting their own

view of public policy. This is evident from the cases on the tort of breach of statutory duty, where

it is Parliament’s policy choice which is important. As Lord Scott explained in the Gorringe case: “if

a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty

of care that would not have been owed at common law if the statute were not there. If the policy

of the statute is not consistent with the creation of a statutory liability to pay compensation for

See Mitchell (n 46) chapter 7.

[1938] 1 KB 540.

Ministry of Transport, The Highway Code (London, HMSO, 1935) 16.

Croston (n 52), 564.

Ibid., 556.

See A. Burrows, “The Relationship between Common Law and Statute in the Law of Obligations” (2012) 128 LQR

232.

damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude

the use of the statutory duty in order to create a common law duty of care”.

However, it is for

the courts to infer what was Parliament’s choice regarding “the policy of the statute”, and in doing

that they may draw on their own understanding of what policy factors it is plausible to suppose

Parliament took into account.

5. References to statute to deny a duty of care at common law

Another category of case displays a similar reasoning pattern. The enactment of a statutory remedy

might serve as a signal to the courts that they should not develop the common law in the same

area. One could say that in these instances the statute operates as a sort of negative social

proposition, blocking the development of the common law. In Johnson v Unisys,

for example, the

essential question was whether the unfair dismissal legislation had frozen the development of the

common law on damages for breach of the contract of employment by the manner of the

dismissal. The House of Lords held that it should not develop the common law to allow wrongful

dismissal damages for mental distress or a psychiatric illness by way of a departure from the earlier

restrictive decision in Addis v Gramophone,

because to do so would undermine the special statutory

compensation scheme for unfair dismissal. Parliament had provided a remedy for such harm, but

at a much lower level than would be available if the common law categories of damage were

extended. The fact that Parliament had legislated for a remedy tended to diminish the pressure for

the common law to develop to reflect current social standards, and at the same time indicated that

it would be inappropriate for it to do so in a manner which would bypass the deliberate

compromise between competing interests enshrined in the statutory regime. If a positive choice

by Parliament is identified not to provide for a claim in damages, although it does not formally

prohibit the courts from developing the law to do just that, it operates as a guide as to the public

policy whether they should do so or not.

A different variation on this theme arises where it is clear that Parliament could have legislated in

an area, but has chosen not to. Since Parliament has the primary role in identifying public policy

and legislating to give effect to it, its abstention from legislation may indicate that, for public policy

reasons, the courts should also abstain from development of the law according to their own

judgment of public policy in the field. Courts are mindful of their own institutional limitations and

that legislative change of the law is primarily a matter for Parliament.

For example, in the Michael case the Supreme Court held that the police should have no liability in

the tort of negligence where they had failed to respond to a 999 call from a woman who was

murdered shortly afterwards by her former partner. As this involved a complex issue of social

policy, the Court considered that any development in this area was for Parliament.

In deciding

whether reform is best left to Parliament, courts may be mindful of whether or not Parliament has

demonstrated any willingness to legislate in this area, including whether they have done so in the

past, or to review whether legislation is required. If not, the inference may be that Parliament has

Gorringe (n 26), [71].

P. Sales, “In Defence of Legislative Intention” (2019) 48 Australian Bar Review 6, 18-19.

[2003] 1 AC 518.

[1909] AC 488.

Michael v Chief Constable of South Wales [2015] AC 1732, [130]. Cf Aitken v Scottish Ambulance Service [2011] CSOH 49

where it was said that a duty of care arose with respect to the manner in which the 999 call was responded to and an

ambulance despatched.

simply left the area free for development according to the usual processes of the common law and

courts may be more inclined to proceed to do that.

6. Public authorities

A significant chapter in the interface between statute and the law of tort concerns public authorities

which have statutory functions. A central tenet of the English legal tradition, most commonly

associated with the constitutional scholar Dicey, is the idea that public authorities and public

officials are subject to the ordinary law as administered in the ordinary courts. Indeed, for Dicey,

this equivalence principle was one of the three pillars of the rule of law.

English law begins from

the starting point that when exercising its public law functions a public authority is subject to the

same private law obligations as any other legal actor, and so can be liable in tort if in the course of

its performance of those functions it violates a private law right. The principle also applies in

negligence, as the Supreme Court reiterated in Robinson.

As made clear in the Gorringe and Michael cases, and most recently in Robinson, the equivalence

principle cuts both ways, in the sense that as a matter of private law analysis, public bodies and

officials are also, generally speaking, not subject to any additional liabilities by virtue of their status.

This means that “public authorities, like private individuals and bodies, are generally under no duty

of care to prevent the occurrence of harm”.

How far the analogy between public authorities and private persons can be taken is open to

question. As explained in Stovin v Wise: “Unlike an individual, a public authority is not an indifferent

onlooker. Parliament confers powers on public authorities for a purpose. An authority is entrusted

and charged with responsibilities, for the public good. The powers are intended to be exercised in

a suitable case.”

In other words, public authorities are expected and required to act in situations

where a private person is not. When considering whether to impose a duty of care on a public

authority, the court may find that its analysis has to be shaped to some extent by the special

position occupied by the defendant, since “the question whether there is such a common law duty

and if so its ambit, must be profoundly influenced by the statutory framework within which the

acts complained of were done”.

The statutory framework under which the defendant operates may make it plausible to argue that

it has a relationship of proximity with those whom the legislation is intended to benefit such as to

give rise to affirmative obligations towards such persons. Conversely, however, where a duty of

care would ordinarily be owed if a private person acted to assume a responsibility, it may be

excluded or restricted “where it would be inconsistent with the scheme of the legislation under

which the public authority is operating”.

A. V. Dicey, Introduction to the Study of the Law of the Constitution, (London: Macmillan, 8

edn, 1915) 114. An early

example of the operation of the equality principle is Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL

93.

Robinson (n 18), [32]-[33] (Lord Reed).

Ibid., [34] (Lord Reed). There are, of course, exceptions to this equivalence principle, such as the tort of misfeasance

in public office.

Stovin v Wise [1996] AC 923, 935.

X (Minors) (n 35), 739 (Lord Browne-Wilkinson).

Poole (n 34), [75] (Lord Reed).

In making that assessment it will be relevant that when imposing a duty or conferring a discretion

on the public authority, Parliament chose not to make it a duty sounding in damages.

Generally,

statutory discretions are not to be unduly fettered by the authority, which is required to preserve

its ability to adjust its behaviour in the light of changing circumstances so as to promote the

purposes of the statute and the common good. Breach of duty in public law does not sound in

damages. So even if a duty of care might appear to be capable of arising according to usual criteria

applicable in relation to private parties when a public authority takes action, it may be that to

impose such a duty would unduly limit the freedom of action of the authority to act in the public

interest. This might be contrary to the no-fettering principle, by creating a risk of liability in

damages if the authority decides to depart from an assurance given or course of action undertaken

in the exercise of its statutory functions. Public law has developed its own doctrine of legitimate

expectations to balance the no-fettering principle with standards of good government, especially

where there has been detrimental reliance by an individual,

and that balance could be distorted

if, in addition, the common law overlaid duties of care sounding in damages. It is to be expected

that this part of the interface between statute and the law of tort will require more examination in

future.

The most acute area of the interface arises where an individual claims that the public authority

owes them a duty of care in common law based on an assumption of responsibility to protect them

from a particular kind of harm. The harm might take the form of physical injury, damage to

property or pure economic loss. The assumption of responsibility relied on might be said to be

founded on what the authority has done in terms of positive action in the exercise of its statutory

functions. Assumption of responsibility as the foundation for a duty of care in tort in relation to

pure economic loss came to the fore in Hedley Byrne v Heller. The concept has had a vibrant life

since then, despite being subject to academic criticism.

However, the concept has deep historical roots and covers cases where a person chooses to enter

into particular forms of established relationship, such as relationships between doctor and

patient,

teacher and student,

and educational psychologist and child.

Generally, a public

authority which enters into such a relationship will become subject to a duty of care, even though

it did so in exercise of its statutory functions. It may be said that Parliament created the statutory

functions on the understanding that they would carry with them standard recognised duties of care

in tort.

But this inference as to Parliament’s intention does not carry across to areas where there is no

standard form of relationship already recognised at common law, and the role of the authority is

more purely “public” in nature. Schemes of public law which confer a high degree of discretion

are often seen as inconsistent with imposition of a common law duty of care. For example, in Davis

v Radcliffe

banking regulation powers in the Isle of Man were at issue. In denying that a duty of

care was owed to the claimant investors it was pointed out that the authority’s exercise of its

licensing powers “can well involve the exercise of judgment of a delicate nature affecting the whole

future of the relevant bank in the Isle of Man, and the impact of any consequent cessation of the

See X (Minors) (n 35)

See P. Sales and K. Steyn, “Legitimate Expectations in English Public Law: An Analysis” [2004] Public Law 564.

See P. Sales, “Pure Economic Loss and Assumption of Responsibility” (PNBA, Peter Taylor Memorial Address, 20

April 2023), available on the Supreme Court website.

See, e.g., D v East Berkshire Community NHS Trust [2003] 4 All ER 796.

See, e.g., X (Minors) (n 35).

See, e.g., Phelps v Hillingdon [2001] 2 AC 619.

[1990] 1 WLR 821.

bank’s business in the Isle of Man, not merely upon the customers and creditors of the bank, but

indeed upon the future of financial services in the island. In circumstances such as these,

competing considerations have to be carefully weighed and balanced in the public interest”.

The

imposition of a duty of care sounding in damages would cut across this scheme and distort the

decision-making flexibility the regulator was intended to enjoy.

But a discretion does not of itself rule out the possibility of a finding of an assumption of

responsibility. If, for example, in the exercise of its discretion, the public authority decides that it

should be doing something to benefit or protect a person, so it has itself decided to focus directly

on their protection in some way, it may be possible to say that the responsibility of the public

authority has been crystallised such that it creates a sufficient relationship of proximity to impose

a duty of care. This proximity is generally described as an assumption of responsibility by the

public authority. But since the language of assumption of responsibility is liable to be somewhat

misleading in this area, it may be better to say that, through the exercise of its statutory functions,

the public authority has itself brought about a focus of concern for and hence of responsibility for

the individual.

In public law family cases, the analogy between public and private defendants becomes very

attenuated. No private individual would intrude on another family’s affairs over a period of years,

as local authority social workers are frequently required to do. A private individual also lacks the

extraordinary legal powers enjoyed by local authorities, ultimately permitting removal of children

from their parents.

One difficult question the courts have sought to grapple with is why positive duties readily inhere

in some “general” relationships but not others.

In the final analysis, it is perhaps public policy

considerations that explain the categories and dividing lines in determining whether assumption

of responsibility has been established. In X v Bedfordshire a number of reasons were given to support

the conclusion that it was not just and reasonable to superimpose a common law duty of care on

the local authority in relation to the performance of its statutory duties to protect children. One

factor which weighed heavily with the court was that the existence of a common law duty of care

in relation to the statutory functions of the authority in question might have an adverse effect on

the way in which it discharged those functions. The local authority might adopt an unduly

defensive approach to its duties in relation to children at risk.

This reasoning soon came to be questioned. In Barrett v Enfield BC,

X v Bedfordshire was

distinguished on the grounds that in Barrett the authority had already taken the decision to take the

child from his home, and the statutory powers exercised by the local authority once he was in care

did not necessarily involve the exercise of the kind of discretion that was involved in taking the

child from his family into care in the first place. Furthermore, following the HRA, the Court of

Appeal held in D v East Berkshire NHS Trust that so far as the position of a child is concerned, the

decision in Bedfordshire cannot survive;

in light of the Strasbourg jurisprudence,

breaches of

Article 8 in child abuse cases may give rise to claims in negligence.

Ibid., 827.

J. Morgan, “A riddle wrapped in an enigma: assumption of responsibility, again” [2022] CLJ 449, 451.

See Michael (n 61), [179] (Lord Kerr); see also Robinson (n [18]), [115] (Lord Hughes).

X (Minors) (n 35), 681.

[2001] 2 AC 550.

Berkshire (n 71), [83].

Z v UK [2001] 2 FCR 246; TP v UK [2001] 2 FCR 289; P, C and S v UK [2002] 3 FCR 1.

But public policy still looms large in denying many duties at common law. The Capital and Counties

case

suggests, for example, that because fire brigades act for the benefit of the public

generally they do not assume responsibility to particular property-owners, especially as the public

interest and individuals’ interests could conflict (for example, property sacrificed to form a fire-

break). The “conflicting duties” argument is a particular powerful instance of the wider policy

concern that liability could incentivise undesirable behaviour.

As Lord Keith put it, “the cure may

be worse than the disease”.

More recently, the courts have sought to re-frame the discussion as one involving a distinction

between acts and omissions of public authorities. Defendants are not usually liable for failing to

assist, protect or otherwise make claimants better off. This usually entails that public authorities

will not be liable in negligence. Lord Reed in Robinson explained that many of the leading cases

denying public authority liability should now be recognised as applications of the nonfeasance

principle. Policy consideration in such cases is unnecessary. This approach was followed in the

Tindall case, in which the concept of “ineffectual interventions”

was placed within the omissions

category. They do not make the claimant’s situation worse, but merely fail to improve it. It was

“far too wide” to suggest that whenever a public authority has power to prevent harm, a duty arises

to do so.

This reasoning is in keeping with the Stovin and Gorringe line of authorities. But the non-

feasance / misfeasance dividing line may be problematic in the case of a public authority subject

to public law duties to act. As Lord Hughes explained in Robinson: “The law readily finds [an

assumption of responsibility to act] in many common situations, such as employment, teaching,

healthcare and the care of children, and imposes liability for omitting to protect others. It could

equally readily do so in the case of police officers with a general public duty to protect the peace,

but it does not.”

In Poole Borough Council case, the Supreme Court reiterated the point it had made in Robinson that

the Caparo approach, which allows for the adjustment of the scope of a duty of care on grounds

of policy (under the “fair, just and reasonable” rubric), has no application in established categories

of case. It acknowledged that there may be circumstances, not present on the facts of that case,

where the local authority may assume a responsibility towards a particular child but did not give

details. But what is now clear is that a public authority does not assume responsibility for the

claimants’ safety merely by virtue of “investigating and monitoring the claimants’ position”, while

the mother’s “anxiety” to be rehoused did not “amount to reliance”.

Even if sufficient proximity

can be established on the facts of a particular case where there has been a positive act (rather than

a mere omission), it remains necessary to examine whether, in such a novel case, there are policy

reasons for not imposing a duty of care.

7. Interface of tort and statute beyond the duty of care

Capital and Counties plc v Hampshire CC [1997] QB 1004, 1036.

See H. Wilberg, “Defensive practice or conflict of duties? Policy concerns in public authority negligence claims”

(2010) 126 LQR 420.

Rowling v Takaro Properties Ltd [1988] AC 473, 502. Similarly, the European Court of Human Rights seems to have

accepted the “defensive policing” argument: see Osman v United Kingdom [1998] ECHR 101.

Tindall v Chief Constable of Thames Valley [2022] EWCA Civ 25, [64].

Ibid., [71] (Stuart-Smith LJ).

Robinson (n 18), [115] (per Lord Hughes).

Poole (n 34), [81] (Lord Reed).

One final point to mention is that there are, of course, other areas of interface between statute and

tort. A classic example is false imprisonment which, as a form of trespass to the person, is a strict

liability tort. There is an interface between statute and tort in this area, because statute may give an

authority to detain someone and where it does, the detainer has a defence to the tort. However,

strict compliance with the statutory conditions is required in order to create the authority to detain.

Failing that, the defence does not arise. The Lumba case,

in which there were public law failures

by the Secretary of State in deciding to detain the claimants, makes this clear. This was so even

though it was accepted that it would have been inevitable that the claimants would have been

detained if the correct procedures had been followed. However, this was held to be relevant to the

quantum of damages.

Conclusion

It can be observed that the imposition or denial of the duty of care in the common law of tort has

been guided, to a significant degree, by judicial consideration of public policy in both the private

and public law contexts. Statutes play an important role in this regard. In the duty of care context,

judges have looked to statute as a helpful guide regarding public policy. Emphasis is given to

maintaining a harmonious and principled co-existence between statute and tort law. An

appreciation of the complex and nuanced interface between them serves to enrich the law of tort

and shows the importance for the judiciary of aiming to achieve coherence across the whole of the

law.

R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.

Ibid., [70] (Lord Dyson).