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James Goudkamp influences the Supreme Court in a recent appeal concerning the tort of negligence

11th Oct 2018

On 11 October 2018, the Supreme Court delivered its unanimous judgment in Darnley v Croydon Health Services NHS Trust. The Court’s judgment is available here.

The case concerned the proper relationship between the duty of care and breach of duty elements of the tort of negligence. The Court of Appeal held that a duty of care of the relevant scope was not owed by the defendant NHS Trust to a man who had attended an accident and emergency department seeking treatment. The Supreme Court unanimously overruled the Court of Appeal. It held that the claim fell within an established duty category.

In reaching this decision, the Supreme Court was influenced by an analysis of the Court of Appeal’s decision that James Goudkamp published in the Cambridge Law Journal. Lord Lloyd-Jones, who gave reasons with which the other members of the Supreme Court agreed, wrote:

“… I should record that in considering the issue of duty of care I have been greatly assisted by a case note on the decision of the Court of Appeal in the present case by Professor James Goudkamp ([2017] CLJ 481). He considers that the parties were within an established duty category and that the only question, relevantly, was whether the defendant breached that duty. He observes that discussion as to what the reasonable person would have done in the circumstances in question indicates that the dispute is about the breach element, that being the only element of the cause of action in negligence that is concerned with the satisfactoriness of the defendant’s conduct. He concludes:

“Accordingly, on traditional principles, Darnley is not, in fact, a duty of care case at all. Rather, properly understood, the issue was whether the defendant had breached its duty in giving, by its receptionist, inaccurate information to the claimant.” (at p 482)

I agree with his analysis. It is to that question of negligent breach of duty that I now turn.

Darnley represents an important decision in a series of recent Supreme Court cases that have ushered in a new approach to the duty of care in the tort of negligence. Pursuant to the new jurisprudence, the Caparo formula has been decisively rejected and the search for a universal test for the existence of a duty of care called off. Instead, increased emphasis has been given to determining duty cases by analogy with previous decisions.

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