Discuss the role of policy as reflected in the development of judicial tests for the existence of a duty of care.
Your answer must begin with a definition of policy: i.e. extra-legal factors, such as the economic, political, or ethical, which influence judicial decision-making; not forgetting ‘floodgates’.
Policy has been incorporated into duty of care decisions by both the Anns ‘two-stage’ test and the Caparo ‘three-fold’ test and answers should explain how, when, and to what effect these tests have been applied.
Then, you should review a selection of key cases in which policy has had a significant influence over the outcome, either explicitly or implicitly. Relevant cases may include: Hill v Chief Constable West Yorkshire, Hall v Simons, X v Bedfordshire, Caparo v Dickman, Mulcahy v Ministry of Defence, and Marc Rich v Bishop Rock Marine. In relating the case, details of the policy and what impact it had should be included.
Good answers will consider the doubtful factual foundations for many judicial assertions of policy implications and the way which some resultant policy-driven immunities have been challenged by the ECtHR.