The Neighbourhood Principle

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Has The Neighbourhood Principle failed?
“My neighbour asked me if he could use my lawnmower and I told him of course he could, so long as he didn’t take it out of my garden.”1 This is the concept which most people tend to associate the word ‘neighbour’ with. However, in the court room, the word makes a decisive shift away from this traditional meaning and endeavours to establish to whom a common law duty of care is owed. The law has expanded considerably by the onset of the concept of foreseeable plaintiffs which is almost 80 years in existence in the UK. It is evasive in determining “whether proximity should now be regarded as a discrete analytical concept around which arguments may be constructed, or merely as a slippery expression reflective of the fairness, justice and reasonableness of imposing a duty of care upon the defendant in the light of the nature of his relationship with the claimant.” 2 This essay sets out to establish whether the neighbour principle was successful or if it has fallen short and where, it will present court decisions, statutes and constitutional provisions pertinent to this area of law. In articulating what was meant by “the neighbour principle”, Lord Atkin famously stated the following proposition: “The rule that you must love your neighbour becomes in law you must not injure your neighbour; and lawyer’s question, 'who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions 1 2

Eric Morecombe (English comedian, 1926-84) Hartstone, J., ‘Confusion, contradiction and chaos within the House of Lords post Caparo v. Dickman’, (2008) 16 Tort L Rev 8

which you can reasonably foresee would be liable to injure your 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.”3 His definition was to become the foundation stone of later cases involving negligence and was, in due course, accepted as “the first definitive test of when a duty of care was owed.”4 Atkin’s statement has given rise to much discussion. At first, some displayed uneasiness at the very wide and flexible terms in which it was propounded 56. It is important to remark that this neighbour principle formed part of the ratio decidendi of Atkin’s judgment but that it cannot be said that it is the ratio decidendi of his decision. “For although both Lord Thankerton and Lord Macmillan contemplated the addition of new duties to the law of negligence, neither of them attempted to formulate the principle or principles upon which this might be done. Nor is the generalising approach of the neighbour principle appropriate to the criminal law, where precision and certainty are all-important.”7 As a consequence of the Donaghue v. Stevenson [1932] case in the UK, the people were given a potential remedy to take against the providers of consumer products even where no privity contract had been in existence between the

3 4

Ibid at 580 Connolly, U., Tort Law, (Second Audition, Thomson Reuters (Professional) Ireland Limited, Dublin, 2009) at 16 5 Smith v. Howden’s Ltd [1953] N.I. 137 per Lord MacDermott C.J. 6 London Graving Dock Co. Ltd. v. Horton [1951] A.C. 736 7 Heuston, R.F.V., ‘Salmond on the Law of Torts’, 17th edition, (Sweet & Maxwell, London, 1977) at 198

complainant and the individual or company tortfeasors. If the proviso for ascertaining that a duty of care was met, then such individuals could bring negligence claims in any situation. The dictum was accepted into Irish law in Kirby v.

Burke [1944].8
The decision in this case “stands on the boundaries of actionable negligence,”9 and does not contend nor purport to give guidance on the obligations arising from already distinguished duties, or in fact, recognisable relationships – e.g. that of occupier and visitor.10 Sometimes the...
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