The ‘three-stage test’ established in Caparo has been subjected to heated criticism, which supports the argument it is no longer suitable to define duties. The test itself details that negligent actions must be reasonably foreseeable, there must be proximity and it must be fair, reasonable, and just to impose liability. Professor Jane Stapleton argues that the ‘three-stage test’ are ultimately circular and therefore empty labels. ’ This is further shown by Lord Hoffmann, who argued that the phrases of the three-fold test tended to be bandied about, shedding little light. This is especially true as Lord Bridge explicitly disclaimed that the threefold test does not and cannot provide straightforward answers to the duty question. He stated that “the concepts of proximity and fairness…are not susceptible of any such precise definition as would be necessary to give them utility as practical tests.’ This irony demonstrates Caparo’s unsuitability to determine duties. In Barclays, Lord Walker claimed that the test ‘does not provide an easy answer to all our problems, but only a set of fairly blunt tools.’ The treatment of this concept by the House of Lords represents the cautionary tale of aspiration to attain practical justice may peak in a legal landscape that is unintelligible to those who work with it. Nevertheless, the difficulty in Barclays follows deciding whether it was fair, just and reasonable to impose liability to Barclays, despite there being foreseeability and proximity. All five of their Lordships in Barclays called for closer attention to the actual issues arising in a particular case, regarding the desirability of liability in negligence, without the distraction of abstract ‘tests’ for duty. This suggests the ‘tests’ itself are useless and may even be a distraction for finding liability. Nevertheless, this creates implications for the new emphasis on policy in negligence. Does the new policy approach turn judges into legislators and remove any hope of certainty of development in the tort of negligence? Such a concept brings in dangerous new issues to the rule of law and poses a threat to our constitution. Centrally, however, this demonstrates the Capao test as unsuitable in finding duties of care under English tort law, in addition to being held in distaste.
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