Duty of Care: Policies & Omission Essay Example

years later the issue of advocates’ immunity came before the House of Lords for reconsideration in Arthur JS Hall v Simons (2000). In view of the possibility that it might be decided to overrule their previous decision in Rondel, seven judges rather than the usual  ve considered the case. This time, the consensus on the matter was different. In closely argued and detailed speeches, the Law Lords re? ected on the changes over the years in both professional culture and attitudes towards entitlements to remedies for wrongs and concluded that the advocates’ immunity from liability for the conduct of a court case must be abolished.

Lord Browne-Wilkinson reasoned as follows: First . . . , given the changes in society and in the law that have taken place since the decision in Rondel v Worsley . . . , it is appropriate to review the public policy decision that advocates enjoy immunity from liability for the negligent conduct of a case in court. Second, that the propriety of maintaining such immunity depends upon the balance between, on the one hand, the normal right of an individual to be compensated for a legal wrong done to him and, on the other, the advantages which accrue to the public interest from such immunity.

Third, that in relation to claims for immunity for an advocate in civil proceedings, such balance no longer shows suf cient public bene t as to justify the maintenance of the immunity of the advocate. Lord Browne-Wilkinson mentions the word policy. This can be de ned as the non-legal considerations; perhaps economic, social, or ethical, which a judge may employ in deciding the outcome of a

case. Policy plays a signi? cant part in the law of negligence, particularly in relation to duty of care. When deciding whether a given situation is one in which there should be a duty of care, the judge may be estimating whether an af mative decision would bring a ood of further similar claims which could overwhelm the courts or devalue legal credibility.

This is often referred to as the  oodgates issue. Closely related to this is the potential impact which a decision might have on the insurance industry in the future and it includes calculations about where it is most economically efficient for loss to lie. Recently judges have begun voicing concerns about the impact of negligence liability on socially bene cial activities such as school trips.

Policy may also include reference to other options available to the client for obtaining redress. McLachlin J in the Canadian Supreme Court described policy as meaning ‘pragmatic’ considerations. As demonstrated in Hall v Simons, in recent years judges have become more open about expressing their views on policy matters and this transparency has let u s know more about what lies behind their conclusions on the issue of duty of care.

One problem with the influence of policy considerations, however, is that it involves a degree of guesswork. How much detailed evidence would need to be presented to the court before it was possible to estimate accurately a decision’s likely future effect on, say, accident prevention? Thus we see that declarations of policy can be subjectively based, with judges differing on interpretations of what may be little more than informed guesswork. (Case diary: development)