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'Public policy' has acquired a bad name in English tort law, but the reasons for its tumble from grace remain obscure. Lord Morns in Dorset Yacht gave us the Delphic admonition that the court should not shrink from being arbiter of whether it is fair and reasonable that a duty of care arise, and that 'policy need not be invoked where reasons and good sense will at once point the way'l but did not explain why sense and logic must be distinguished from policy factors, and why the latter do not encompass fairness and reasonableness. When the 'policy considerations' step of Lord Wilberforce's two-stage test in Anns2 was supplanted by 'fairness, justice and reasonableness' in Caparo's three-stage test for duty of care,3 it was unclear how, if at all, this was intended to change the substance of what the court must consider in novel cases, or whether the revolution was confined to shifting the persuasive burden respecting policy considerations from the defendant to the claimant, by inference converting the court from an expansive to a conservative way of thinking about negligence law. While the factors selected for consideration under the third stage of the Caparo test have tended to weigh heavily against creating a duty of care, recently the countervailing policy that wrongs should be remedied corrective justice has regained prominence4 (which begs the question as to what constitutes a wrong). Perhaps aware of the flaccidity of 'fairness, justice and reasonableness' in explaining to parties why a duty of care has been withheld or imposed in their cases, the Law Lords have continued to cast about for more satisfactory labels. 'Assumption of responsibility', once subjected to scathing judicial cnticism as being 'neither helpful nor realistic' as a test of liability,5 is now regarded as a virtually indispensable phrase in novel negligence decisions, at least where the harm is charactensed as economic.6 The latest label in vogue is Aristotle's 'distnbutive justice',7 usually deployed in counterpoint to 'corrective justice' which is generally assumed to be the default rationale underpinning tort law.
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