Development of Law on Duty of Care in Modern Law of Negligence: Analysis of Lord Atkin’s Dictum in Donoghue Versus Stevenson

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In this essay I will be critically reviewing Lord Atkin’s dictum in Donoghue v Stevenson and exploring the extent to which the English courts have developed the law on the duty of care in the modern law of negligence.

In the early 19th century the tort of negligence started to develop considerably, when liability for careless acts was based on ‘a duty to take care’ owed by the defendant to the plaintiff. Initially, the duty to take care was associated with contractual relationships, however, throughout history its reach has broadened. On a case by case basis, duty was found to exist due to the relationship of the parties, for example the relationship between an employer and an employee. Attempts to set out a general view of duty had failed, such as in the case of Heaven v Pender (1883), until the iconic case of Donoghue v Stevenson in 1932.

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Donoghue v Stevenson was a fundamental case in relation to tort law. It set out the foundations of the modern law of negligence by establishing the general principles of the duty of care. Mrs Donoghue had drunk some ginger beer that was bought for her by a friend at a café. The bottle was opaque so as the remainder of the ginger beer was poured into her glass it was found to have had contained a rotting snail. This allegedly caused her to become unwell, however as there was no contractual relationship between Mrs Donoghue and the ginger beer manufacturer, the only way for her to seek compensation would be through the tort of negligence. The House of Lords held that the ginger beer manufacturer had been under a duty of care not to cause her injury. Lord Atkin’s decision also included the neighbour principle.

In Lord Atkin’s analysis of the duty concept, it is clear that the meaning of duty had already existed in case law before Donoghue v Stevenson. Then, as it is now, there could only be liability on the basis of negligence, if the defendant owed a legal duty to the injured party to take care for his or her safety. The distinction marked by the duty concept was, and still is, the distinction between carelessly inflicted damage which involves a breach of a duty of care, and carelessly inflicted damage whereby there is no duty and therefore no liability. Lord Atkin was not the first judge to set out a general theory which tried to set out a general theory to explain the specific instances of negligence liability. Brett MR (later Lord Esher) had put forward a broad test based on foreseeability in the case of Heaven v Pender ((1883) 11 QBD 503,509). He stated that “whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger”. However, the other judges in that case did not agree with him and Lord Atkin agreed that Lord Esher’s statement was verifiably too wide. Lord Macmillan on the other hand thought that with appropriate qualification it could be a useful guide, rather than a formal definition. Lord Esher and A.L. Smith LJ later added the important components of closeness and proximity (La Lievre v Gould [1893] 1 QB 491, 497,504). Lord Atkin agreed that proximity was a necessary additional component which would help to restrict the circumstances in which a duty of care could be said to arise. He also recognised the word proximity to have a special meaning. This meaning would not be limited to physical closeness but could reflect a variety of aspects of the relationship between parties in terms of closeness. In Donoghue v Stevenson, the goods were expected to reach the eventual customer without intermediate tampering, and without inspection, that supplied the necessary closeness and directness. Today foreseeability and proximity still continue to be core elements in the test for the duty of care.

Duty of care can be broken down into two questions: the first being general and decided as a matter of law and policy; followed by the second which is fact-based and specific. The first question is whether this is a case of the type to which the law of negligence would be applicable? and if so, was it foreseeable that this claimant would be harmed by the defendant’s act? As the neighbour principle, with its requirements for foreseeability and proximity provides the answer to the first question and forms the basis of finding a duty of care which is the first step in every case of negligence. Duty of care can be said to provide the means of controlling the reach of the law of negligence because without it the potential for liability would be virtually unlimited. Depending on the type of damage suffered can be an important factor in determining the duty of care. The most common types are property damage, personal injury and death. If the damage is only a pure economic loss, for example a loss of profit or a psychiatric injury, the duty will be more difficult to establish.

Following the case of Donoghue v Stevenson the court in a number of cases, used and adapted the duty of care in ways which at first expanded and later contracted the tort of negligence. In Home Office v Dorset Yacht Co [1970] AC 1004 where boys had escaped from a weekend outing and damaged the plaintiff’s yacht. The question was whether a duty of care was owed by the prison authorities with regards to the actions of the youth offenders in custody. It was held that there was a duty of care owed by the Home Office to the plaintiff. This extended the neighbour principle set out in Donoghue v Stevenson in situations that were unusual for two reasons. Firstly, the wrong against the plaintiff had not been directly committed by the defendant or his employees, but by a third party, the boys. Any liability of the defendant would then be based upon an omission which was his failure to control the actions of the boys. Secondly, the defendant was a public body and therefore subject to statutory and resource constraints.

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