A critical review of Lord Atkin’s famous dictum in Donoghue v Stevenson and an assessment into what extent the English courts have developed the law on the duty of care in the modern law of negligence.
THE DUTY OF CARE IN TORT
The best modern definition of Tort comes from Percy H Winfield in The Province of the Law of Tort as ‘Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.’ The Neighbour test was developed by the courts and represents the first test applied in order to assess the presence of a duty of care. Judges started moving towards the formulation of a general principle of duty of care. The quote in question by Lord Atkin in Donoghue v Stevenson was the first legal formulation of duty of care to identify negligence: The Neighbour’s test. The principle established that a manufacturer owed a duty of care to the ultimate consumer. The absence of a contract between the parties did not exclude the presence of duty of care against the manufacturer. But the question still resurfaces, who in law, is thy neighbor? There has been a significant development of the concept of duty of care, which stemmed from the Neighbour test. There was an introduction of the concept of duty of care in relation to economic loss caused by negligent misstatement. There was an introduction of the concept of duty of care in relation to tortious actions committed by a third party. There was a modern reformulation of Lord Atkin’s ‘Neighbour principle’ in Anns v London Borough of Merton. Lord Wilberforce attempted to lay down an approach which could be applied in all situations in order to determine the existence of a duty of care. A two-stage test was reformulated: 1) between the parties involved there must be a sufficient relationship of proximity or neighbourhood that will likely cause damage to another person; and 2) are there any policy reasons why no duty of care should be considered to be owed? The Anns test opened the floodgates. It was applied to the very close relationship between two parties which may cause the presence of a quasi-contractual relationship that justifies the presence of duty of care. A better explanation was provided by the court on the element of ‘proximity’ to reduce the scope of duty of care and avoid floodgates. The court decided to adopt a narrower approach in order to avoid floodgates. The courts held a claim in negligence requires the person to be the legal owner or the possessor in title of the property at the time of the damage. Finally the two-stage test in Anns was rejected to restrain the identification of duty of care. The courts said foreseeability of harm is a necessary ingredient of a duty of care relationship. ‘Otherwise there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forbears to shout a warning’. It was in the context of the retreat from Anns that emphasis was placed in a number of cases on the concept of “proximity”, and on the idea that it must be fair to impose a duty of care on the defendant. In order to avoid a floodgate of claims and to give structure to the identification of duty of care, the court moved away from the position in Donoghue and Anns whereby foreseeability of damage was enough to make a claim in negligence. They introduced the Caparo three-stage test. The Caparo-three stage test represents the actual state of the law in identifying duty of care. Three elements are needed to identify a duty of care: 1) Foreseeability – was the loss caused by the Defendant to the Claimant reasonably foreseeable? 2) Proximity – Is there legal closeness between the parties at the time the Defendant was negligent? and 3) Fair, just and reasonable – Is it fair, just and reasonable to impose a duty to the Defendant? The last question has been seen as a residual discretion left to the court in deciding the imposition of a duty). Lord Bridge noted that decisions after Anns had emphasised “the inability of any single general principle to provide a practical test which can be applied to every situation.” The ‘incremental approach’ represents the main theory applied by the courts to identify the existence of duty of care. Accordingly a duty of care exists in those situations that can be regarded as analogous to one in which a duty of care has already been recognised. In order to establish the presence of duty of care firstly, it has to be checked whether there is any existing legal authority for a duty of care in circumstances similar to the one under examination. If there is a duty recognised by earlier cases, then the court can follow them. However, when recognising and developing an established category, the courts are being influenced by policy considerations. If there is no existing legal authority, then the Caparo three-stage test should be used. In order to establish the presence of duty of care all the three following requirements are necessary: i) foreseeability, ii) proximity and iii) fair, just and reasonable policy considerations. The law attributes a duty of care between employers and their employees. Even if the damage is foreseeable and there is proximity between the parties, the imposition of duty of care must be fair, just and reasonable. It was in any event made clear in Michael v Chief Constable of South Wales Police that the idea that Caparo established a tripartite test is mistaken. Properly understood, Caparo thus achieves a balance between legal certainty and justice. In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. In Robinson v Chief Constable of West Yorkshire Mrs Robinson was walking down a street. In the same street Police officers were detaining a suspected drug dealer. The suspect put up resistance and moved up the street. The Claimant was knocked to the ground and injured. The Court of Appeal dismissed the Claimant’s arguments. It had not been fair, just and reasonable to impose a duty of care. The interest of the public may outweigh the interests of the single individual. The case was appealed to the Supreme Court. The Supreme Court made significant inroads into the principle that the police cannot be sued in negligence save in exceptional circumstances as a result of alleged failures in their core operational duties. The Court stressed that there is no single definitive test that should be used to assess whether a duty of care will arise in any particular case. Rather, what is required is: “[A]n approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities”. The Court reviewed the evolution of the law on the imposition of duties of care. It is thus essential reading for tort lawyers. It is self-evident that any case which includes express reference to (amongst others) Donoghue v Stevenson, Hedley Byrne v Heller, Anns v Merton, Murphy v Brentwood, Caparo v Dickman, Stovin v Wise is going to be of importance. The Supreme Court went on to say “[I]t is neither necessary nor appropriate to treat Caparo as requiring the application of its familiar three-stage examination afresh to every action brought. Where the law is clear that a particular relationship, or recurrent factual situation, gives rise to a duty of care, there is no occasion to resort to Caparo, at least unless the court is being invited to depart from previous authority”. What the Supreme Court is saying is where the lower courts have already determined whether a duty of care should be imposed in particular circumstances, there is no need for this issue to be reconsidered in subsequent cases. It is surprising that the court would imposed on the police in this case a duty of care, given the long and consistent line of high authority which appeared to have been stated in firm terms that no such duty arises should be imposed on the police public policy grounds. However, the reassurance inherent in the incremental approach assumes that the existing law is properly understood. In Robinson, the Supreme Court decided that various statements of the law in this area – including from the Supreme Court itself – were not correct, or at least had not been properly understood. Tort law bases on the idea that a person owes a duty of care to another individual. The breach of this duty may give rise to liability. A legal duty to take care is where care should be taken to ensure a person should not be exposed to “liability in an indeterminate amount for an indeterminate time to an indeterminate class”. First, you have to prove the existence of a duty of care. The Neighbour test represents the first test applied in order to assess the presence of a duty of care. There was a significant development of the concept of duty of care, stemmed from the Neighbour test. The court decided to adopt a narrower approach due to the avoidance of floodgates. In order to avoid a flood of claims and to give structure to the identification of duty of care, the court introduced the Caparo three-stage test. According to the so-called ‘incremental approach’ a duty of care will exist in a situation which can be regarded as analogous to one in which a duty of care has already been found. In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions.
