Tort

Law of Tort 3
Pilot Q 3 In relation to the tort of negligence explain the meaning of ‘duty of care’.
Ans A tort is a wrongful act against an individual which gives rise to a non-
contractual civil claim. The
claim is usually for damages,
although other remedies are available. Liability in tort is usually based on principle
of fault, although
there are exceptions. Negligence
is recognized as the most important of the torts, its aim being to provide
compensation for those
injured through the fault of some
other person. However, an individual is not automatically liable for every negligent
act that he or she
commits and in order to sustain
an action in negligence it must be shown that the party at fault owed a duty of care
to the person
injured as a result of their actions.
Consequently, the onus is on the claimant to establish that the respondent owed
them a duty of care.
The test for establishing whether a duty of care exists was initially set out in
Donoghue v Stevenson
(1932), the snail in the beer
bottle case, in which the House of Lords established that a manufacturer owes a
duty of care to the
ultimate consumer of their
goods. Irrespective of any lack of contractual relationship the manufacturer must
exercise
reasonable care to prevent injury to the
consumer.
In putting forward the test to establish a duty of care Lord Atkin stated that:
‘You must take reasonable care to avoid acts and omissions which you could
reasonably
foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? ... any person 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 and
omissions which are called
in question.’
It can be seen that this neighbour test for deciding the existence of a duty of care is
an objective,
rather than a subjective one. It
is not a matter of what the respondent actually considered, but what they ought to
have considered.
Nor does the test require the
contemplation of the resultant effect on the specific individual injured, but merely
requires that
identity of a class of individuals who
might be injured as a consequence of the respondent’s lack of care.
The test in Donoghue v Stevenson was subsequently extended in Anns v Merton LBC
(1978), Lord
Wilberforce introducing a two
stage test for establishing the existence of a duty, as follows:
– Is there a sufficient relationship of proximity or neighbourhood between the
alleged wrongdoer
and the person who has suffered
Classified Questions and answers on law of tort By M Benee
M Benee 2 Tel: 417 5906/752 4813
damage such that, in the reasonable contemplation of the former, carelessness on
his part may
be likely to cause damage to
the latter?
– If the first question is answered in the affirmative, are there then any
considerations which ought
to negate, reduce or limit the
scope of the duty or the class of persons to whom it is owed or the damages to
which a breach
of duty may give rise?
The impact of Anns led to the expansion of negligence, as the policy reasons acted
only to limit
liability once a duty had been
found to exist, as opposed to limiting the existence of the duty itself. However,
there was gradual
criticism of, and retreat from the
approach taken by Lord Wilberforce. Thus in Peabody Donation Fund v Sir Lindsay
Parkinson & Co
Ltd (1984), it was stressed that
the proximity test had to be satisfied before a duty of care could be found to exist.
The decision in Anns was eventually overruled by Murphy v Brentwood DC (1990),
where it was held
that local authorities owed
a duty of care to a building owner to avoid damage to the building, which would
create a danger to
the health and safety of the
occupants. The duty arose out of the local authority’s powers to require compliance
with building
regulations. However, as the
damage was held to be pure economic loss, it was irrecoverable.
The present position, appears to be that in establishing the existence of a duty of
care in negligence,
an incremental approach must
be taken. The claimant must show that the defendant foresaw that damage would
occur to the
claimant, that is, that there was
sufficient proximity in time, space and relationship between the claimant and the
defendant. In
practical terms, foreseeability of
damage will determine proximity in the majority of personal injury cases. The courts
will then, where
appropriate, consider whether
it is just and reasonable to impose a duty and whether there are any policy reasons
for denying or
limiting the existence of a duty,
for example, under the floodgates argument. The courts will not necessarily
consider these in all
cases.
The final retraction from Anns and support for the incremental approach was seen in
Caparo
Industries plc v Dickman (1990),
where the application of a three stage test for establishing a duty of care was
recommended. This
requires consideration of the
following questions:
– Was the harm caused reasonably foreseeable?
– Was there a relationship of proximity between the defendant and the claimant?
– In all the circumstances, is it just, fair and reasonable to impose a duty of care?
It is apparent that the courts’ current position is to continue to retreat from Anns to
a more ‘categorybased’
approach, as referred to
in the ratio of Donoghue v Stevenson.
This was clearly summed up by Lord Hoffmann in Stovin v Wise (1996), as follows:
The trend of authorities has been to discourage the assumption that anyone who
suffers loss is
prima facie entitled to compensation
from a person ... whose act or omission can be said to have caused it. The default
position is that he
is not.

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Law of Tort 3

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