Sally Russell

Stage 1 – duty of care: physical harm

Deciding whether someone owes a duty of care to another comes from the case of Donoghue v Stevenson, 1932. This case is famous for establishing liability in negligence, and is often referred to as ‘the snail in the ginger beer case’. Lord Atkin gave the leading judgment and produced what is now known as the ‘neighbour test’. He said, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. He explained the word 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 am directing my mind to the acts or omissions which are called in question”

Task: As you probably won’t remember the entire quote, put Lord Atkin’s neighbour test into your own words so it is clear to you.

Do this on a piece of paper and then click here.

Judges later began to use an incremental approach, i.e., not expanding in great leaps but bit-by-bit, case by case. A line from an Australian case has been quoted with much approval. The case is Sutherland Shire County v Heyman 1985, and the Judge, Brennan J, said, “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories.”
The issue of duty arose again in Caparo v Dickman, 1990, where these words were approved by the HL. The HL said that there was no general principle which applied to all cases and it was necessary to consider whether imposing a duty was ‘just and reasonable’ in the circumstances. So, for a duty to arise, there not only has to be foreseeability of harm and proximity between the parties, but also it must be fair, just and reasonable to impose a duty on D.

Key case
In Caparo, C had claimed that the auditors of a company’s books owed him a duty of care. They had produced inaccurate accounts and he had lost money by investing in the company. Arguably it was foreseeable that people in his position, who had relied on the accounts, would suffer loss. The HL held, however, that there was no proximity between him and the auditors. The auditors produced the accounts for the company, to comply with the legal requirements to produce annual accounts, not for potential investors. Nor was it fair, just and reasonable to make the auditors liable for losses to unknown investors.
The Caparo case involved economic loss rather than physical harm, but the 3-stage test applies to all types of harm. It is applied more strictly in relation to economic loss and psychiatric harm, and we will look at these later. In Caparo itself, Lord Roskill recognised that “there is no simple formula or touchstone” for deciding whether to impose liability. The 3rd part of the test allows for a certain amount of flexibility, based on what is ‘fair’ in the circumstances.

So there are three points to consider.

Foreseeability	Proximity	Whether it is fair just and reasonable
of harm	between the parties	to impose a duty

Foreseeability
It must be foreseeable that D’s act (or omission) will cause harm. Thus in Donoghue, it can be said to be foreseeable that the manufacturer’s act (of allowing a snail to get in the bottle), or omission, (the failure to clean the bottles properly), will affect any consumer of the ginger beer.

Proximity
The concepts of foreseeability and proximity overlap. The more proximate you are to someone, the more foreseeable it is that his or her actions may harm you. In Bourhill v Young 1943, a women heard an accident and the shock caused her to miscarry and lose her baby. She failed in her claim, as she hadn’t actually seen the accident. It was not foreseeable that she would be harmed nor was she in close proximity. Proximity need not be physical, however, a relationship between the parties is enough. In Donoghue, the relationship was one between a manufacturer and consumers. In Caparo, there was proximity between the auditors and the company whose accounts they did, but not between the auditors and investors. The latter relationship was not sufficiently close, or ‘proximate’.

Whether it is fair, just and reasonable to impose a duty
The last point is a matter of public policy. This is perhaps the most difficult of the three as much will depend on the circumstances in each case. The courts look at what is best for society as a whole. So actions against bodies such as the police, hospitals, rescue services and local councils may fail on this point. Sporting activities also enjoy a limited immunity.

In Watson v British Boxing Board 2000, the CA found that it was ‘just and reasonable’ to impose a duty on the Board to ensure adequate medical facilities were available at a boxing match. In Vowles v Evans 2003, the CA held that as a matter of policy it is ‘just and reasonable’ that the law should impose a duty on a rugby referee to take reasonable care for the players’ safety, so had breached that duty by not applying the rules properly leading the scrum to collapse.

Now try this short exercise.  When you have finished, click on the Go on  button at the top or bottom of the page to carry on with the lesson.  Before you do that, now might be a good time to take a short break and / or review your notes.

Click here to do the exercise.