Duty of care Established in Donoghue v Stevenson
A longstanding principle and authority known as the neighbour principle which gave rise to a duty of care was established in Donoghue v Stevenson.[1] There were attempts to elucidate a duty concept, in Heaven v Pender[2] but the cause of action in Donoghue[3] was far more pronounced. It is asked whether its subsequent development is too wide in giving rise to liability in negligence where none should arise. The subsequent judicial decisions of the courts shed light on its practice. This paper discusses first, how the principle was established and second, the development of this principle and the emergence of a tripartite test. Fourth, this paper will discuss whether it has been founded on a wide concept. Fifth this paper will discuss whether judges need a test which gives them more manoeuvrability. Lastly this paper will conclude the principle remains very wide allowing judges to make discretionary decisions in individual cases to achieve the best outcome influenced by policy decisions.
Donoghue[4] was a departure from dependence on contractual relationships being necessary for an injured party to make claims. Lord Atkin dispelled the concept of privity of contract creating a new notion, the neighbour principle, with two key concepts; foreseeability of injury and a definition of implied proximity of a relationship between parties. The presence of both concepts loosely created a general test for classification of persons with a duty of care. Lord Atkins reference of ‘who is my neighbour’ extended to those close enough to be directly harmed by a person’s actions which injure and could be liable in negligence, if harm were foreseeable; the tortfeasor ought to have persons close enough in their contemplation so that injury may be possible and so avoided. Floodgates were being kept firmly shut however, as there would be no liability for a tortfeasor who was deemed not to have a duty of care. It was possible for the courts to make policy decisions as interpretation is discretionary. The principle went on to cause uncertainty as to the meaning of this relationship of closeness, whether it be physical, emotional, or practical.
The principle was simple but flawed by the problematic concept of policy. There is no intrinsically agreed-upon meaning for policy, encompassing many concepts influencing the courts' decision to impose or not liability in negligence, regardless of foreseeability or proximity. Predictability and proximity alone are not sufficient, and never have been[5].
Winfield contended shortly after Donoghue[6] that the requisite of duty in negligence was superfluous, serving only as a double hurdle. Winfield argues were duty eliminated cases would have had the same outcome, as sufficient prima facie evidence shows whether plaintiffs should have behaved reasonably once the legal test of causation of remoteness of damage is applied. Winfield asserted that causation proves if the plaintiff should have acted with reasonable care. This double hurdle gives increased discretion and control as reasonableness is subjective allowing judges to decide whether floodgates remain tight[7].
The principle developed in Anns v Merton LBC,[8] giving rise to a two-stage test of whether damage was foreseeable, establishing a relationship of proximity and whether a duty of care should be excluded for policy reasons[9]. The duty of care was further advanced in Caparo Industries v Dickman[10] where the test in Anns[11] was dismissed. Lord Bridge defined a three-stage test absorbing the principle that it was necessary for a requisite level of proximity between the parties requiring foreseeability. It allowed digression from this where in cases of psychiatric injury and pure economic loss there could be a need for more than mere foreseeability. Lord Bridge elaborated, in addition to foreseeability when finding a level of proximity amounting to a duty of care; the decision must be fair and just, effectively becoming a tripartite test of foreseeability, proximity and considerations of fairness, justice and reasonableness.
The principle in Donoghue[12] was a cornerstone but could not stand alone as a test, needing refining and developing as a resolution principle. Answering whether the ‘neighbour principle’ laid down in Donoghue[13] is too wide is achieved without much difficulty. Subsequent case law, such as Hedley Byrne v Heller[14] and Caparo[15] elaborated on the neighbour principle adding substance and balance to the formula. It was evident that alongside the foremost neighbour principle these additional principles have been necessary in determining a duty of care in later decisions. In McFarlane v Tayside Health Board[16], JD v East Berkshire NHS Trust[17] and Vowles v Evans[18] the neighbour principle was necessary to consider and refer to but when considering imposing a duty of care it was confirmed necessary to assess the relationship of the parties as to being fair, just and reasonable to impose a duty of care.
Lord Atkin in Donoghue[19] stated: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.” Founded on a wide concept it had potential to mislead. Lord Atkin was likely influenced by biblical teachings, shortly before Donoghue[20] he discussed his concept, most of which he said was likely to be found in the ecclesiastical ‘Golden Maxim,’ He acknowledged that law and morality have their differences and somewhat altered Christ's words by importing the word neighbour into his revolutionary speech[21].
The decisions in Caparo[22] discerned that when considering imposing of a duty of care in individual cases the contemplation of proximity and the principles of being just, fair, and reasonable needed consideration alongside the traditional ‘neighbour principle’. This ruling was affirmed by the House of Lords decision in the relatively recent case of Sutradhar v Environment Research Council[23] where when considering the principles in Caparo a duty of care was not found.
The law in establishing duty of care since its inception in 1932 has developed incrementally with policy as the determinative factor in decision making and establishing new duties. This has allowed judges to deviate from a stringent ‘neighbour principle’, at times when a rightful decision would result from moral and feasible deliberations. An example was acknowledgement of a need to protect professionals vulnerable to negligence claims whose work innately gives rise to the possibility.[24] Policy increasingly underpins decisions and more so with decisions surrounding public bodies leaving the question whether judges need more freedom when establishing duty of care. Decisions have been adapted to fit the criteria of Caparo[25] granting legality whilst appearing more agreeable notwithstanding controversial content[26].
The improved tripartite test in Caparo[27] established a control system for liability and a way of concealing policy decisions ensuring incremental changes. Firstly, foreseeability appears straightforward, however establishing the likelihood of an injury is questionable. Reasonable foresight lacks precision or definition, allowing judicial discretion to make policy decisions whilst appearing to apply the neighbour principle’ keeping control of decisions with potential to open floodgates. Secondly, proximity is dependent on the circumstances with potential for different interpretations. Thirdly, fairness, justness, and reasonableness are easily recognisable yet not concise. Conceivably this allows judges total discretion to decide any new circumstances as they wish to achieve the best result. Moreover, courts have the power to avoid overburdening the defendant inordinately to his fault. They can prevent overburdening the insurance system and consequences with far-reaching effects. Offensive practices can be deterred such as medical doctors exercising risky operations due to high likelihood of liability for poor practice therefore maintaining high standards. Arthur JS Hall & Co v Simons[28] illustrates this, extending the duty of care in negligence. What is notable about the decision-making process in Hall is the failure to use any recognised methodology. The House of Lords openly considered and decided on the merits of the facts only without trying to appear to be applying an indefinite principle to achieve the best result.[29] In Customs & Excise v Barclays Bank plc [30] the reasoning was once more looking for the best outcome.
Katter argues the neighbour principle has returned to the original principle, that in Donoghue[31] there was no possibility of intermediate examination and the relationship was not merely a physical one between the manufacturer and the claimant. Meaning Lord Atkins statement created a distinction that it is more than just physical nearness as there is a causal element therefore an inferential element imposed on the defendant.[32] This was evident in the case Home Office v Dorset Yacht.[33] where it was held that it was a statement of principle in Donoghue[34] which should apply unless there is a good reason not to.
In conclusion, the neighbour principle that has evolved into a tripartite test today has a width that is so great it allows the judiciary to practice discretion in its decisions. There has been openness about this, Lord Oliver in Caparo[35] conveyed doubts about the utility of the three requirements, saying they are mostly features of the same thing. He concluded, from foreseeability proximity can be deduced, an essential relationship can be regarded as the court's view and proximity is an undefinable concept of a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.
BIBLIOGRAPHY
TABLE OF CASES
Anns v Merton LBC [1978] AC 728 HL
Arthur JS Hall & Co v Simons [2002] 1 A.C. 615
Caparo Industries plc v Dickman [1990] 2 AC 605 HL
Commissioners of Customs & Excise v Barclays Bank plc [2007] 1 A.C. 181
Donoghue v Stevenson [1932] AC (HL) 562
Heaven v Pender (1883) 11 QBD 503
Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465 (HL) 497
Home Office v Dorset Yacht Club Co. [1970] A.C. 1004
JD v East Berkshire Community Health NHS Trust [2003] 4 All ER 796
McFarlane v Tayside Health Board [2000] 2 A.C. 59
Rondel v Worsley [1969] 1 A.C. 191
Sutradhar v Natural Environment Research Council [2006] UKHL 33
Vowles v Evans [2003] 1 WLR 1607
JOURNALS
Castle, R ‘Lord Atkin and the neighbour test: origins of the principles of negligence in Donoghue v Stevenson’ (2003) Ecclesiastical Law Journal 210
Ketter, N "Who then in law is my neighbour? - Reverting to First Principles in the High Court of Australia” (2004) 12 (2) The Tort Law Review 85
Patten, K ‘Snail Trail’ (2012), 162 N.L.J. 643
Stanton, K “Professional Negligence: Duty of Care Methodology in the twenty first century” (2006) 22 Professional Negligence
Winfield, P.H. ‘Duty in Tortious Negligence’ (1934) 34 Columbia Law Review 41
BOOKS
Conghan, J. and Mansell, M. The Wrongs of Tort (2nd edition, Pluto Press 1999)
Mulheron, R. Principles of Tort Law (Cambridge University Press, 2017)
Footnotes
[1] [1932] AC (HL) 562
[2] (1883) 11 QBD 503
[3] [1932] AC (HL) 562
[4] [1932] AC (HL) 562
[5] Keith Patten ‘Snail Trail’ (2012), 162 N.L.J. 643
[6] [1932] AC (HL) 562
[7] Percy H. Winfield, ‘Duty in Tortious Negligence’ (1934) 34 Columbia Law Review 41
[8] [1978] AC 728 HL
[9] Rachel Mulheron, Principles of Tort Law (Cambridge University Press, 2017)
[10] [1990] 2 AC 605 HL
[11] [1978] AC 728 HL
[12] [1932] AC (HL) 562
[13] [1932] AC (HL) 562
[14] [1964] AC 465 (HL) 497
[15] [1990] 2 AC 605 HL
[16] [2000] 2 A.C. 59
[17] [2003] 4 All ER 796
[18] [2003] 1 WLR 1607
[19] [1932] AC (HL) 562
[20] [1932] AC (HL) 562
[21] Richard Castle ‘Lord Atkin and the neighbour test: origins of the principles of negligence in Donoghue v Stevenson’ (2003) Ecclesiastical Law Journal 210
[22] [1990] 2 AC 605 HL
[23] [2006] UKHL 33
[24] Rondel v Worsley [1969] 1 A.C. 191
[25] [1990] 2 AC 605 HL
[26] J. Conghan and M. Mansell, “The Wrongs of Tort” (2nd edition, Pluto 1999) 17
[27] [1990] 2 AC 605 HL
[28] [2002] 1 A.C. 615
[29] Keith Stanton, “Professional Negligence: Duty of Care Methodology in the twenty first century” (2006) 22 Professional Negligence 134
[30] [2007] 1 A.C. 181
[31] [1932] AC (HL) 562
[32] Norman Ketter "Who then in law is my neighbour? - Reverting to First Principles in the High Court of Australia” (2004) 12 (2) The Tort Law Review 85-97
[33] [1970] A.C. 1004
[34] [1932] AC (HL) 562
[35] [1990] 2 AC 605 HL
