Tort Law Llb? You Really Need To Know Robinson And Montgomery

English, Welsh and Scot`s Law LLB students doing Tort (or Delict for our friends north of the border). Do not sit an exam before you are comfortable you understand the implications of Robinson 2018 and Montgomery 2015. If fact if you only have time to read a few cases these must be on the list.

There is a strong possibly these cases will not only be relevant to an exam problem question but will also form the basis of at least one short answer exam question. I`m yet to see a past torts paper from a UK university that does not expressly or impliedly concern Robinson.

For those newer students hesitant to read cases, these cases are well written and easy to understand. Essentially,

• Robinson 2015 has confined the Caparo "three-stage approach" (itself a misconception as the Robinson decision explains, Lord Bridge was trying to acknowledge the predominant approach at the time, not trying to invent a new test) to novel duty of care situations. Even then, the focus is on developing the law incrementally and by analogy with established authority.
  
• Established categories of Duty of Care relationship should just be applied. If you have a doctor and patient or driver and road user, you have a duty of care.
  
• Asking whether such a duty of care would be "fair, just and reasonable" is not necessary.
  
• Editorial: I personally think this is a much better approach. Sure there are some issues with the incremental approach as borrowed from for HCA Justice Brennan. But IMO it is still a more workable approach than the overly discretionary and less predictable "fair, just and reasonable" approach. What do you think? You may have an exam question on this....
  
• Robinson also confirmed that you use those categories of established relationship even if for example the driver in a driver and road user circumstance is a public authority such as a police officer. However, please note while Duty of Care may be simpler following this approach, the status of a defendant as being part of a public authority such as a police officer will be very relevant to the question of Breach generally per common law and also via legislation.
  

Montgomery 2015:

• The Bolam and Sidaway approach to medical disclosure of risks is over.
  
• Whenever you assess breach of duty for a doctor patient relationship you need to first make clear whether we are talking about negligent treatment or negligence failure to warn of risk of a medical procedure (see Montgomery etc)
  
• If you are dealing with failure to warn of risk Montgomery, and not Bolam sets out the right approach:
  

a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. [A risk is material if] a reasonable person in the patient s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

• Once again, this issue is probably going to make its appearance in an exam problem question.
  
• It is also very likely to form the express or implied basis of a short answer question, for example along the lines of whether the Montgomery patient-focused approach is better legally and/or normatively (aka policy) than Bolam for disclosure of risk cases.
  
• Also, doing an assignment on this and want to stand out, make sure you check out Rogers v Whittaker and Rosenberg v Percival (Australian cases that informed the Montgomery approach).
  

See more below:

DUTY OF CARE

The neighbourhood concept from Donoghue v Stevenson [1932] AC 562:

• You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
  
• [Your neighbour includes those] so closely and directly affected by [your] act that [you] ought reasonably to have them in contemplation as affected.

Subsequent attempts at creating a single unifying test for duty of care

Anns v Merton London Borough Council [1978] AC 728, 751-752

Lord Wilberforce attempt to lay down an approach to all situations to decide duty of care through a two-stage test:

1) Is there a sufficient relationship of proximity and foreseeability? If so, a prima facie duty of care exists

2) Are there any considerations which could negative, reduce or limit the scope of liability?

The three-stage approach from Caparo

Caparo Industries plc v Dickman [1990] 2 AC 605.

Lord Bridge noted that what emerged from post-Anns decisions just as Hill v Chief Constable of West Yorkshire was that the following were necessary ingredients in any situation giving rise to a duty of care :

1) the foreseeability of damage

2) relationship of proximity or neighbourhood and

3) 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 .

This is often known as the Caparo three-stage test and has often been applied as such. But note in that same passage Lord Bridge stated (at 617-8)

1) the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.

A move towards incrementalism and away from having a universal test

Michael v Chief Constable of South Wales Police [2015] UKSC 2.

Lord Toulson: The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account .

And then Robinson comes along and clears up much of the mess!

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

Current approach per Lord Reed:

1) The proposition that [courts] will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken.

2) Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable.

3) Robinson acknowledged the following categories: by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients.

4) It is only in a novel type of case that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. [The] approach of the common law in such situations is to develop incrementally and by analogy with established authority. [This] depends on identifying the legally significant features of the [analogous] situations. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is fair, just and reasonable .

For an excellent flow chart on Duty of Care approach post Robinson see Kirsty Horsey and Erika Rackley, Tort Law (6th edn, OUP 2019) ch 3.

Public Authorities and Existing Categories per Robinson at [33]:

1) Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority

2) It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence

BREACH

Having established a duty of care, the plaintiff must show a breach of that duty:

1) What is the expected standard of care in the circumstances?

2) Did the defendant fail to meet that standard of care?

What is the appropriate Standard of Care?

1) General Rule: The ordinary standard of care in negligence cases is that of what a reasonable person would do in the circumstances: Blyth (1856).

2) Drivers (including learner drivers) are expected to have the standard of care of an experienced, skilled and careful driver: Nettleship.

3) Doctors and the Bolam test for negligent treatment: [A doctor] is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice: Bolam [1957] Sidaway [1985] Bolitho [1998].

4) Since Montgomery, the Bolam test is not applicable to disclosure of risks: a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

5) [A risk is material if] a reasonable person in the patient s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

Montgomery v Lanarkshire Health Board (2015) a mother facing a high-risk pregnancy was not informed by her consultant that a natural birth would be 9-10% riskier that a caesarean section. Her child was injured during the natural delivery. Held: the mother was successful. She should have been warned of the risk of shoulder dystocia and advised of the C-section alternative.

Did the defendant fail to meet that standard of care? Compare:

1) the magnitude of risk: this is comprised of the likelihood (or foreseeability) of injury occurring and the severity of the injury should it occur

2) with the social value of the activity undertaken by the defendant and the cost and practicability of taking precautions against the risk.[1]

In determining the steps that a defendant in a claim of negligence should have taken to meet a standard of care, a court:

1) may consider whether those steps may prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity: Compensation Act 2006 s1.

2) must have regard to whether the alleged breach occurred when the defendant was acting for the benefit of society/its members: SARAH Act[2] s2.

3) must have regard to whether the defendant demonstrated a predominantly responsible approach towards protecting the safety or other interests of others: SARAH Act s3.

[1] Case examples: Paris v Stepney BC [1951] AC 367 (severity of harm): Defendant knew the plaintiff was blind in one eye and was thus negligent for failing provide protective goggles to the plaintiff as the seriousness of harm of an eye injury was far greater than to a man with two good eyes Bolton v Stone [1951] AC 850 (likelihood of harm) Latimer v AEC [1953] AC 643 (cost of precautions) Haley v London Electricity Board [1965] AC 778 (degree of risk, blind pedestrian).

[2] Social Action, Responsibility and Heroism Act 2015.