“Michael [v Chief Constable of South Wales, [2015] UKSC 2] may well mark the beginning of a new era of duty of care jurisprudence in the UK. It suggests a clear willingness by the Supreme Court to break with the Caparo test. It also moves policy considerations, consistently with the hostility expressed towards to [sic.] the Caparo test, out of the limelight. Scholars who seek to explain tort law in terms of rights will celebrate Michael principally for this reason.”
James Goudkamp, “A Revolution in the Duty of Care?” (2015) 131 LQR 519, 524.
Do you agree with the assessment of Goudkamp that Michael is potentially a revolution in the duty of care? Is that a good development or a bad one? In particular, how does the importance of the “incremental test” in Michael compare to its role in Customs & Excise Commissioners v Barclays Bank, [2006] UKHL 28? Which approach is better, and why?
[Please note: this essay topic asks you to address the analysis and consequences of Michael for duty of care analysis generally, and not the holding in Michael that no duty of care was owed by the Police in that specific case.]
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