Professional Documents
Culture Documents
Page2
care is to have a technical legal meaning then it should be a question for the judge. However, if its
meaning is the everyday meaning then it should be for the jury, although it might be wondered
whether there could be an everyday meaning of a phrase like duty of care, which is hardly the
favoured topic of conversation on the London tube. It is useful to summarise three views that are
likely to be taken on the issue:
VIEW 1. It is for the judge to decide when in law a duty of care arises. But it is for the jury to decide
what the facts are. The judge may therefore direct the jury in terms such as: If you find the facts to be
X then there is in law a duty of care. But if you find the facts to be Y there is no duty of care. The
decision as to whether there is a duty of care is, then, in a sense both that of the jury and the judge.
However, it is the judge, not the jury, who defines the term duty of care.
VIEW 2. The jury are to decide not only what the facts are, but also the meaning of duty of care and
whether there is a duty of care on those facts.
VIEW 3. The definition of the duty of care is shared between a judge and a jury. The judge can decide
whether in law there could be a duty of care, but if there could it is for the jury to decide whether or
not there is. The judge, in a sense, has a veto, but at the end of the day it is for the jury to fine tune
the definition of duty of care.
Page3
as that in tort is Willoughby. 12 There appears to be a clear statement by the Court of Appeal:
whether a duty of care exists is a matter for the jury once the judge has decided that there is
evidence capable of establishing a duty. 13 This seems to be a clear statement in support of view 3,
that the jury has a role in deciding the meaning of the term duty of care.
*Crim. L.R. 27 But there are a number of ambiguities in the judgment. At one point14 Rose L.J.
states:
In the present case, we accept that there could not be a duty in law to look after the deceased's
health and welfare arising merely from the fact that the defendant was the owner of the premises. But
the fact that the defendant was the owner, that his public house was to be destroyed for his financial
benefit, that he enlisted the deceased to take part in this enterprise, and that the deceased's role was
to spread petrol inside were, in conjunction, factors which were capable, in law, of giving rise to a duty
to the deceased on the part of the defendant.
There are two points to emphasise about this passage. The first is that it is clear Rose L.J. regards
the question of whether or not there is a duty of care as one of law. It is not one of fact, or a matter of
opinion. On the other hand, he talks about the factors being capable in law of giving rise to a duty of
care. This suggests that there is something to be added to these facts which determines whether or
not there is a duty of care. But it is unclear what that is. A clue, perhaps, is his conclusion on his
discussion of Wacker 15 that public policy considerations determine whether a duty of care exists.
The missing element may therefore be that public policy can determine whether there should be a
duty of care. In other words whether there is a duty of care is a mixture of a factual matrix and a
policy justification. One possible interpretation, then, is that the judge decides whether the facts
permit a legal finding of a duty of care and the jury decide whether there are public policy reasons for
establishing the duty. All well and good, but why then is it the jury that determines those public policy
questions? Is the jury equipped to answer such questions? Is the jury aware that what they are being
asked is a matter of public policy, rather than a matter of justice in respect of the particular
defendant?
Another difficulty is the following statements of Rose L.J.:
We add that there may be exceptional cases, for example where a duty of care obviously exists,
such as that arising between doctor and patient, or where Parliament has imposed a particular type of
statutory duty, in which the judge can properly direct the jury that a duty exists. But, for the reasons
which we have sought to explain, that is a question normally for the jury's deliberation.16
There is a problem here. The Court of Appeal appear to be using the phrase duty of care as a legal
term of art. They suggest that there are some cases where the law is clear: there is a statutory duty of
care or a very well-established duty of care, for example as between doctor and patient.17 In that case
the judge can declare there to be a duty of care. However, in borderline cases the jury can decide.
This is, with respect, problematic. If we have a clear House of Lords case which declares there is a
duty of care is that a category of an obvious case or not? What about *Crim. L.R. 28 a decision of
the Court of Appeal? More importantly why does the question of whether there is a duty of care cease
to be a legal question and become a jury question just because the law is not obvious?
Willoughby has been interpreted in another way. Professor David Ormerod has suggested that all that
is being said is that the judge should direct the jury that if they find the facts to be X then there is in
law a duty of care, but if they find the facts to be Y then there is no duty of care. In other words it is
supporting view 1, that the judge decides the meaning of duty of care. He states Willoughby
does not relegate the duty question to one of fact. It remains a question of law, and the jury are to be
directed on what the law is--i.e. whether a duty exists--if they find certain facts to be established.18
This interpretation, however, does not fit with the statement that whether a duty of care exists is a
matter for the jury once the judge has decided that there is evidence capable of establishing a duty.19
More particularly it does not fit with the Court of Appeal's view that there was a conflict between the
earlier authorities of Khan (Rungzabe )20 and Sinclair, 21 on the one hand and Singh (Gurphal) 22 on
the other, with the Court of Appeal preferring the first two cases. The court summarised Singh as
finding that the trial judge directed the jury that a duty of care was owed.23 If Ormerod is correct, and
Willoughby is supporting view 1 but believed Singh was wrong, the court must have believed that
Singh was a case where the judge had decided not only the meaning of duty of care but also whether
there was a duty of care in the case. But that is hard to believe. No judge would see his role as to
decide the facts of the case. Willoughby must have interpreted Singh as a case which suggested that
Page4
the definition of a duty of care was a job just for the judge. If they thought that decision wrong, then
the Court of Appeal in Willoughby were supporting view 3 and believed it was for the jury to decide
whether or not there was a duty of care, as long as the judge thought conceivably there could, in law,
be one. And its objection to Singh was precisely because the judge there believed it was his or her
role to determine whether or not there was a duty of care.
So the current law is unclear. Although the weight of authority supports the view that the meaning of
duty of care matches that in tort, there is Court of Appeal authority for the view that a jury plays a role
in deciding what duty of care means.
It is time to consider what the tortious understanding of duty of care is.
Page5
that even though the victim's death was reasonably foreseeable there was no proximity between
them, or that it was not fair, just and reasonable to impose a duty of care. Lord Oliver stated in
Caparo 33 :
it is now clear that mere foreseeability is not of itself sufficient to ground liability unless by reason of
the circumstances it itself constitutes also the element of proximity (as in the case of direct physical
damage).
and Lord Lloyd, dissenting in Marc Rich, 34 said that in such cases proximity, very often goes without
saying. Nevertheless there might be a small band of cases where taking into account the other two
Caparo factors could influence the outcome. It is necessary, therefore, to look further at the Caparo
factors.
Page6
Page7
Page8
positive acts of both the defendant and the victim (in spreading and/or igniting the petrol), and this is
not a question on which the court sheds any light. If the conduct is characterised as an omission, it is
still possible that a duty of care could have arisen in tort, absent the ex turpi causa defence, since
where one is dealing with an omission a court may impose a duty where, additionally, the defendant
has created a source of danger, as is strongly arguable here.72
In spite of the recognition that the ordinary principles of the law of negligence apply to cases of gross
negligence manslaughter, there seems to have been no consistent or accurate focus on the tort law
requirements for establishing a duty of care. Whilst the Caparo factors do not amount to a precise or
definitive test, they are indicative of the relevant considerations and it is striking that so little reference
is made to them in this context. Whilst it may be argued that, given the existence of personal injury
and the compelling public policy arguments in such cases, there is no need for any such detailed
consideration, this is a view that remains largely unarticulated by the courts. It remains unclear
therefore whether the term duty of care, as used in these cases, does in fact equate to the term as
used in the law of tort. It may well be that in cases of gross negligence manslaughter the courts will
separately develop a duty concept based on its own factors. If that is the case, it is surely time for a
clear statement of the law.
*Crim. L.R. 36 If duty of care does not carry the tortious meaning, what could it
mean?
If the courts decide that the phrase duty of care in gross negligence manslaughter does not share
the tortious meaning, but has some other meaning, what could that be? In Sinclair 73 the jury, having
been given the Adomako direction came back to the judge and asked for assistance over the
meaning of duty of care. This is not surprising as the term is not one which is in ordinary usage. If
the legal position is now that the jury play a role in defining the duty of care, what exactly is expected
of them? Professor Ormerod has suggested:
In cases of positive action by the accused, the duty should be easy to establish from the fact that a
risk of death would be obvious to the ordinary prudent individual74
As already mentioned the Law Commission have suggested that the law be reformed so that, in place
of the concept of duty of care, the jury are simply asked whether death was reasonably foreseeable.75
Indeed some support for this can be found in the case law. In Wacker 76 the fact that the death was
foreseeable was emphasised as an important point in finding a duty of care. Further in R. (Lewin) v
DPP 77 one of the reasons why the court held that the CPS had acted properly in not pursing a
prosecution for gross negligence manslaughter was that it would not have been foreseeable to the
defendant that leaving the drunk victim in a car on a hot day posed a risk of death.
In this interpretation, duty of care means no more than the risk of death being reasonably
foreseeable. There would then be no difficulty in such a question being left to the jury. It would avoid
the technicalities of the law of tort, although, as we have seen, the phrase, duty of care, in the law of
tort often means no more than reasonable foreseeability.
Cases where the criminal law may not want to match the civil law
The blameworthiness of the victim. The law of tort involves a claim by one party against another. This
can involve the court in assessing the extent to which both parties may be responsible for the
resulting harm. The law of tort can recognise this in one of three ways. First, if the claimant is partly
responsible for their loss then the amount awarded may be reduced on account of contributory
negligence. Secondly, if the claimant has put himself in a position where injury was inevitable his
claim may be defeated on the basis of the principle volenti non fit injuria. Thirdly, *Crim. L.R. 37 if the
claimant is not deserving of an award because at the time of the injury he or she was committing a
criminal offence then the principle of ex turpi causa can lead to a defeated claim. In all of these three
the claimant is restricted in her claim due to fault or at least responsibility on her behalf. However,
Page9
criminal proceedings are brought by the state and not by the victim. Hence the culpability of the victim
is not relevant to the guilt of the defendant. A defendant charged with burglary will have no defence
that the victim was foolish in leaving her house unlocked and was therefore partly responsible for the
crime. This is the point behind the Wacker 78 decision. Although the victims were committing a crime
and had even consented to the dangerous activity this was irrelevant to the guilt of the accused.
Criminal proceedings are not about balancing the responsibility between the defendant and the victim,
but in determining whether the activity engaged in by the defendant is sufficiently harmful and
blameworthy in the eyes of the state to justify a criminal conviction.
Kay L.J. put it this way in Wacker :
Why is there, therefore, this distinction between the approach of the civil law and the criminal law?
The answer is that the very same public policy that causes the civil courts to refuse the claim points in
a quite different direction in considering a criminal offence. The criminal law has as its function the
protection of citizens and gives effect to the state's duty to try those who have deprived citizens of
their rights of life, limb or property. It may very well step in at the precise moment when civil courts
withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do
with whether as a matter of public policy the criminal law applies. The criminal law should not be
disapplied just because the civil law is disapplied. It has its own public policy aim which may require a
different approach to the involvement of the law.79
So the compensatory heart of the law of tort may require different factors to be considered in
assessing a duty of care than the criminal law.
Omissions. In general the criminal law is reluctant to impose criminal responsibility for omissions.
There are several reasons for this, and it is not possible to go into them all here, but one is the law's
reluctance to restrict an individual's freedom by compelling someone to act in a particular way if she is
to avoid criminal liability. As is well known, a defendant can only be guilty in connection with an
omission in English criminal law where there is a duty to act. Confusingly this duty is said to arise in
cases where the defendant has assumed a duty of care towards the victim. This is, however, not to
be confused with the term duty of care in the Adomako test or the tortious meaning. That said,
where there is a duty to act there is almost inevitably a duty of care. So, although an occupier might
be liable in tort in failing to take steps to protect a visitor, there would be no criminal liability in respect
of such an omission, unless there was a special relationship or assumption of responsibility between
the owner and the visitor. This, however, would not be due to a difference in understanding over the
term duty of care, but rather because *Crim. L.R. 38 there would not be a duty to act, which is
required under criminal law for there to be liability for an omission.
Page10
negligence. For a criminal prosecution it will be necessary to find that the negligence is gross. So,
although a decision-maker may have a nagging fear that her decision could possibly be found to be
unreasonable, she should not ever fear that the her decision could be categorised as gross. That
said, it may be replied that the distinction between negligence and gross negligence is one that that
may be appreciated by lawyers and not by the decision-makers themselves.
Conclusion
This article has sought to consider the meaning of duty of care in the offence of gross negligence
manslaughter. It would appear from the case law that, despite the clear indication in Adomako that
the ordinary principles of negligence apply, there remains considerable uncertainty as to the
appropriate test, with directions given to juries varying significantly in approach. As a result, it is
difficult to conclude that the test being applied (if there is any consistent test) is entirely in line with
that adopted in tort. This has led to confusion as to whether the duty of care is regarded as a matter
for the judge or for the jury.
What is clear is that there is a real need for greater clarity and consistency in this respect, and that
raises the broader question of whether it is appropriate to use the tort test or whether criminal law
should develop its own, such as a test based on reasonable foreseeablity alone. An approach based
simply on reasonable foreseeability may also lead to a conflict with the policy underlying tort law
where it has been decided that certain people performing certain tasks should be free from the fear of
litigation. The benefit of using the tort test is that it encapsulates restrictions on liability based on
policy and principle which would otherwise be lost with a straight-forward reasonable foreseeability
test. However, there are important ways in which the relevant issues of principle and policy may differ
between tort and criminal law, as is demonstrated in the deviation of the courts from tort law principles
in certain respects, such as where the ex turpi causa test would apply.
Whilst there may be some areas in which policy considerations and objectives differ between tort and
criminal law, only rarely will these justify a significant deviation from the well-established principles
governing the tortious duty of care, upon which Adomako clearly appears to have been predicated. In
this light, though there may be calls for the criminal law to develop its own understanding of the duty
of care, distinct from that in tort, we would suggest that use is made of the development of the
concept of a duty of care in the law of tort as the normal meaning of duty of care in gross negligence
manslaughter but recognising that there may be rare cases where the judge can direct that the
tortious duty will not be relied upon. These will be in cases where the blameworthiness of the victim
leads to there being no duty of care in tort when it may still be appropriate to *Crim. L.R. 40 impose a
criminal liability (e.g. the ex turpi causa doctrine) and cases involving omissions, where the court will
need to find not only a duty of care, but also a duty to act. Such an approach is the best way to
achieve clarity and consistency in the law.
We are grateful for the comments of Rebecca Williams and Emily Finch on drafts of this paper. The
usual caveats apply.
Page11
1.
The Law Commission, A New Homicide Act For England And Wales? (Consultation Paper No.177, 2005).
2.
3.
e.g. D. Ormerod, Smith and Hogan Criminal Law (11th edn, Oxford University Press, 2005), at p.484. But see A.
Ashworth, Principles of Criminal Law (4th edn, 2003), at p.298 who seems to take the view that the definition of a duty
of care should be resolved on case by case basis and C. Clarkson and H. Keating, Criminal Law (Sweet and Maxwell,
2003), at p.655 who state emphatically that, concepts such as duty of care and breach do not bear the same
meaning in the criminal law as under the law of tort.
4.
The Law Commission, A New Homicide Act For England And Wales? An Overview (Consultation Paper No.177, 2005),
at para.5.41.
5.
6.
7.
8.
(1925) 19 Cr.App.R. 8.
9.
10.
11.
The point may have been conceded by the prosecution: D. Ormerod Commentary [2005] Crim. L.R. 389 at p.392.
12.
13.
ibid., at [24].
14.
15.
16.
17.
In Nationwide Heating Services Ltd [2004] EWCA Crim 2490 the trial judge, whose direction was approved by the Court
of Appeal, simply told the jury that an employer owed an employee a duty of care.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
Note that Lord Bridge also indicated that the Caparo factors are applicable in any situation [1990] 2 A.C. 605 at p.617.
30.
31.
Page12
32.
See also Murphy v Brentwood District Council [1991] 1 A.C. 398 at pp.486-487 and Mobil Oil Hong Kong Ltd and Dow
Chemical (Hong Kong) Ltd v Hong Kong United Dockyards Ltd (The Hua Lien) [1991] 1 Lloyd's Rep. 309 at pp.328-329.
33.
34.
35.
Clerk and Lindsell on Torts (18th edn, Sweet and Maxwell, 2001), at 7-14.
36.
It could, however, be relevant in considering whether or not there was a breach. So although a child might owe a victim
a duty of care, if she acted reasonably for a child there would be no breach.
37.
Clerk and Lindsell on Torts (18th edn, Sweet and Maxwell, 2001), at 7-14.
38.
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 A.C. 617 at p.642.
39.
40.
41.
42.
43.
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H ) [1996] A.C. 211 at pp.229-230.
44.
Clerk and Lindsell on Torts (18th edn, Sweet and Maxwell, 2001), at 7-16.
45.
46.
This is the so-called overkill argument. Such concerns are particularly strong in cases concerning the police and local
authorities providing key social services.
47.
48.
49.
The lack of availability of an alternative remedy was crucial to the decision to impose a duty in Donoghue v Stevenson
[1932] A.C. 562; White v Jones [1995] 2 A.C. 207; and Spring v Guardian Assurance Plc [1995] 2 A.C. 296.
50.
Frost v Chief Constable of South Yorkshire Police [1999] 2 A.C. 455 at pp.494, 1542 and McFarlane v Tayside Health
Board [2000] 2 A.C. 59 at p.81.
51.
52.
For example, in Stansbie v Troman [1948] 2 K.B. 48 a decorator agreed to lock the premises on leaving (a voluntary
assumption of responsibility) but failed to do so and property was subsequently stolen by thieves.
53.
54.
55.
56.
57.
58.
59.
(1985) 60 A.L.R. 1
60.
Kay L.J. was clearly concerned with the views of the public, as one might expect in considering the fair, just and
reasonable head, in saying at [2003] Q.B. 1207 at [30] that they venture to suggest that all right-minded people would
be astonished if the propositions being advanced on behalf of the defendant correctly represented the law of the land.
This statement was, of course, in the context of ex turpi causa, rather than explicitly the just, fair and reasonable head.
61.
62.
63.
Page13
64.
65.
ibid, at p.1883.
66.
ibid, at p.1884.
67.
68.
ibid, at p.1884.
69.
(1985) 60 A.L.R. 1
70.
71.
As Lord Hobhouse stated in Perrett v Collins [1998] 2 Lloyd's Rep. 255 at p.263, the previous authorities have by
necessary implication held that it is fair, just and reasonable that the plaintiff should recover.
72.
73.
74.
75.
The Law Commission, A New Homicide Act For England And Wales? An Overview (Consultation Paper No.177, 2005),
at para.5.41.
76.
77.
78.
79.
at [33].
80.
For example, local authorities responsible for investigating claims of child abuse (X (Minors) v Bedfordshire County
Council [1995] 2 A.C. 633) or the police in their investigation of crime (Hill v Chief Constable of West Yorkshire [1989]
A.C. 53).
81.
82.
Of course, if such a prosecution were to be brought there would be difficulties in establishing causation.
2016 Sweet & Maxwell and its Contributors