Business Law-Historical Development of the Tests
We live in a legal system in which we all have a duty to protect other persons from harm. The question the court must examine is what degree of duty exists under what specific circumstances. Although there were some attempts in the late 19th century to develop a general test, there was no accepted test until 1932.
Ø The neighbour test
The classic formulation of the ¡®neighbour¡¯ test of Lord Atkin in Donoghue v Stevenson [1932] AC 562 is the most frequently cited attempt to rationalize the duty of care: ¡°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? He defined the neighbour as ¡°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 an directing my mind to the acts or omissions which are called in question.¡±
This case is very famous, for it destroyed the privity fallacy. In this case, the manufacturer of a bottle of ginger beer was liable to a consumer who was made seriously ill by the partly decomposed body of a snail in the bottle from which she had been drinking. Although the consumer was a friend of the purchaser, the manufacturer owed a duty of care to the ultimate consumer.
Therefore, the test in Donoghue gave the law a starting point for the question of whether a duty of care existed, based on reasonable foreseeability of damage to the claimant.
Ø The expansion of negligence liability
A more elaborate test ¡ª the two-stage-test of the existence of a duty of care, was put forward by Lord Wilberforce in Anns v Merton London Borough Council [1978] 1 AC 728 751-2: ¡°The first stage was to establish that the parties satisfied the requirements of the neighbour test. If this was done then a duty would exist unless the court found that policy dictated that there should be no duty .¡±
As the courts applied the two-stage-test,
Ø The neighbour test
The classic formulation of the ¡®neighbour¡¯ test of Lord Atkin in Donoghue v Stevenson [1932] AC 562 is the most frequently cited attempt to rationalize the duty of care: ¡°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? He defined the neighbour as ¡°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 an directing my mind to the acts or omissions which are called in question.¡±
This case is very famous, for it destroyed the privity fallacy. In this case, the manufacturer of a bottle of ginger beer was liable to a consumer who was made seriously ill by the partly decomposed body of a snail in the bottle from which she had been drinking. Although the consumer was a friend of the purchaser, the manufacturer owed a duty of care to the ultimate consumer.
Therefore, the test in Donoghue gave the law a starting point for the question of whether a duty of care existed, based on reasonable foreseeability of damage to the claimant.
Ø The expansion of negligence liability
A more elaborate test ¡ª the two-stage-test of the existence of a duty of care, was put forward by Lord Wilberforce in Anns v Merton London Borough Council [1978] 1 AC 728 751-2: ¡°The first stage was to establish that the parties satisfied the requirements of the neighbour test. If this was done then a duty would exist unless the court found that policy dictated that there should be no duty .¡±
As the courts applied the two-stage-test,
References: Paul Latimer (2003). Australia business law. CCH Australia Limited. McPherson¡¯s Printing Group. pp. 108-117, 220, 225, 248. Roger LeRoy Miller & Gaylord A. Jentz (2000). Business Law Today. 5th edition. West Group¡ªA division of Thomson Learning: United States of America. pp. 114. John Cooke (2002). Law of Tort. 5th ed. Pearson Education Limited. pp. 30-35. Stephen Judge (1999). Business Law. 2nd ed. Palgrave Publishers Ltd. pp. 112-117. Davidson & Knowles & Forsythe & Jespersen (1987). Comprehensive Business Law. Kent Publishing Company. pp. 60.