Tort Negligence
THE TORT OF NEGLIGENCE - DUTY OF CARE EXISTENCE OF A DUTY
Donoghue v Stevenson [1932] AC 562,
• Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? … You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
Foreseeability and proximity
'Foreseeability' means whether a hypothetical 'reasonable person' would have foreseen damage in the circumstances.
'Proximity' is shorthand for Lord Atkin's neighbour principle. It means that there must be legal proximity, i.e. a legal relationship between the parties from which the law will attribute a duty of care.
Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See: Bourhill v Young [1942] 2 All ER 396.
The role of policy
• Policy is shorthand for 'public policy considerations'. Policy considerations were recognised in the Wilberforce test and the test in Caparo v Dickman.
• In recent years the courts have identified a wide range of factors that may be relevant to the denial of a duty of care. For example, a duty of care may not exist where:
(a) The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995).
(b) A duty of care would lead to unduly defensive practices and a waste of resources (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v
Donoghue v Stevenson [1932] AC 562,
• Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? … You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
Foreseeability and proximity
'Foreseeability' means whether a hypothetical 'reasonable person' would have foreseen damage in the circumstances.
'Proximity' is shorthand for Lord Atkin's neighbour principle. It means that there must be legal proximity, i.e. a legal relationship between the parties from which the law will attribute a duty of care.
Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See: Bourhill v Young [1942] 2 All ER 396.
The role of policy
• Policy is shorthand for 'public policy considerations'. Policy considerations were recognised in the Wilberforce test and the test in Caparo v Dickman.
• In recent years the courts have identified a wide range of factors that may be relevant to the denial of a duty of care. For example, a duty of care may not exist where:
(a) The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995).
(b) A duty of care would lead to unduly defensive practices and a waste of resources (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v