Browne-Wilkinson pointed out inadequacies of reasoning in Osman, as well as slightly altering domestic law test.
in Osman flawed because test of
whether it would be fair, just and reasonable to impose liability [ie third
limb of Caparo] took into account an
aggregate weighing of the detriment to the public interest should liability be
held to exist against total loss to all would-be plaintiffs if there were no
cause of action.
this determination made, no need for further weighing of such matters in
context of a particular case.
House of Lords slightly altered domestic law test.
of X v Beds states that where public
authority is within ambit of its statutory discretion, no duty of care can
here it was held that existence of discretion did not always preclude
possibility of common law duty of care.
issue was whether matter was justiciable or not.
allegation of negligence raised by plaintiff involves non-justiciable matters
then there is no claim.
matters might include:
Matters courts are ill-equipped to assess
Matters where Parliament could not have intended courts would substitute their
views for those of primary decision-maker.
if the matters are justiciable then
the public law hurdles are unnecessary and ordinary principles of negligence
simply looks to see whether Caparo conditions