Donoghue v Stevenson (duty of care)

The first element in a claimant’s case negligence is whether the defendant owed him a duty to take reasonable care. Duty of care therefore, exists as a control devise in order to determine who can bring an action for negligence and in what circumstances. When a person suffers loss as a result of negligent conduct, they will want to shift that loss on to the person who caused it though negligence action. When a negligence action is brought to court, the judge will usually be able to rely on precedent to determine whether a duty of exists. But what if there is no precedent? What test should the judge use to determine whether a duty of care exists?

Negligence liability has existed in one form or another for centuries, but until the 19th century there was no concept of duty as we now know it. Liability existed within defined relationships such as doctor-patient or employer-employees. Where a case fell outside a recognised relationship, there was no test for determining whether liability existed or not until the most famous case in legal history Donoghue v Stevenson in 1932. In Donoghue, the claimant suffered illness as a result of consuming a ginger beer bought by her friend. She could not sue the retailer nor the manufacturer as she had no contract with both of them. On the facts the café owner would have been liable to the friend for breach of contract in selling him a defective product, if the friend had suffered damage. However the House of Lords laid down that a duty was owned by the manufacturer to the claimant. Lord Atkin stated his famous neighbour test as a general test for determining whether a duty of care existed known as the wide rule: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would 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 to have them in contemplation as being so affected when I am directly my mind to the acts or omissions which are called in question.” By creating a tortious duty to the claimant, the House of Lords began removal of the privity fallacy from English Law.

Controversy existed as to how influential the neighbour test has been in the development of duty of care principles. The test laid down by Lord Atkin was criticised for being too wide. What has always been cleared that this test alone was not sufficient to explain cases where the court found no duty existed. There was numerous cases after Donoghue where the damage to the claimant was clearly foreseeable but the courts refused to find a duty. In Hedley Bryne v Heller the House of Lords rejected the neighbour test and instead that there had to be a special relationships between the parties. There was no recognition of the need for Parliament to intervene at that time as a matter of policy or public safety and the judiciary were contended to allow the matter to evolve on a case to case basic. A two- stage test was put forward by Lord Wilberforce in Anns v Merton. 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 policy dictated that there should be no duty. The two-stage test now apply unless there were policy reasons for excluding it. Unfortunately not long before problems began to emerge with the test in Anns. Such question as how did the test address the question of fairness between the parties? The test does after all place a great deal of responsibility upon the shoulders of judges as to whether a situation falls within the test. How was the second part of the test to be applied in situation which fell outside that of Anns?

The test was scientifically analysed and evaluated. It was overruled by the House of Lords in Murphy v Brentwood District Council. A broader view of the test was established and adopted in the case of Caparo v Dickman by Lord Bridge. The three stage test from Caparo can now be said to be foreseeability of damage as identified in Topp v London, a sufficiently ‘proximate’ relationship between the parties and it must be fair, just and reasonable to impose a duty. This approach could be said to be nearly identical to the two-stage test but the difference is that foreseeability and proximity are parted out. However we should not simply accept that the three-stage test laid down by Lord Bridge is the end of the matter. With regards to proximity; it is ‘‘not an easy notion to apply figuratively, any more than the cognate notion of ‘neighbour’”, thus ambiguity of the language is still apparent. In addition, with the choice of the words used in the third limb all of which appear to have the same vague definition as one another - the test can, again, apply to most situations; as it is unlikely that a result will be decided upon that is unjust, unfair or unreasonable. There also remains the issue of whether the later Caparo test is any difference than the neighbour principle. What is the difference between the tests or is it really a matter of application by the judges? Furthermore there is also the argument that in this technological age of development and advance the law need to grow and develop to meet the ever changing need of society so that it is perhaps inevitable that the law of negligence is bound to be about to such changes and about how they should be addressed. Since the law was established in the 1990 is it perhaps outdated?

To my conclusion the important question to ask is where does this all leave us? Formulas for torts are not easy to create. Do we need to formulate a new test to establish duty of care? Nevertheless retaining the Ann test would not have simplified the concept of duty of care and reach the desire outcome that the Caparo test gives. So to my contemplation instead of changing the current law what can be done further is ‘re-established a degree of certainty in this field of law’, which is so desperately required.