Nonfeasance and the end of policy? Reflections on the revolution in public authority liability
For at least forty years English tort lawyers have debated the proper approach to the duty of care in negligence. Since Caparo Industries plc v Dickman, 1 it has been orthodox to approach a novel claim by proceeding cautiously from established situations of liability and weighing up the factors for and against liability. These factors include the relationship between the parties (proximity) and all other relevant factors (ie policy, under the rubric "fair, just and reasonable'). In Robinson v Chief Constable of West Yorkshire Police the Supreme Court has again explained this approach - and its limits.2 Policy reasoning has been declared unnecessary and even impermissible within "established categories' - and the scope of what should be taken as "established' was widely conceived. So nonfeasance was categorised as established "non-liability', whereas direct infliction of physical harm was, conversely, an "established' category where liability invariably arises. In neither situation, therefore, was the Caparo approach to be taken, according to the majority judgment of Lord Reed. No "novel' issue was said to arise.