Whenever the Courts Draw a Line to Mark Out the Bounds of Duty, They Do It as a Matter of Policy so as to Limit the Responsibility of the Defendant

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“Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant”. (Spartan Steel v Martin & Co [1973] QB 27, per Lord Denning, MR) Discuss the above proposition, with reference to at least three cases. Maximum 600 words (excluding citations in footnotes; other text in footnotes counts towards the word limit). One cannot deny that policy has always been a contributory factor in determining the existence and extent of duty owed by the defendant in atypical cases. Despite being restrictive of the responsibility of the defendant most of the time, it does, however, also extend the liability of the defendant in certain cases. Both will be considered in this essay in further details. The encounter of novel cases necessitates the courts to invoke the Caparo 3-stage test to determine the existence and extent of duty of care not yet established by the authorities. The ‘fair, just, and reasonable’ stage, under which matters of policy are to be considered, is what must always be faced when using the test. Andrew Robertson proposed two categories of policy considerations: ‘justice between the parties’1 and ‘justiciability, community welfare and other non-justice considerations’2 which concerns the effects that recognition of the duty may have on legal system or on people’s behaviour.4 Even when no public policy matters are said to be concerned and the decision reached on the basis of foreseeability and proximity proves desirable, the decision actually conforms to the former sense of policy where it is thought to be fair among the parties to do so. Hence, it should be correct that ‘in modern times, the courts…have recognised that whether a duty of care arises or not is ultimately a matter of policy’5 One of the reasons why policy often restrict liability is the fear of

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