Lord Atkins Speech in Donoghue v Stevenson - Essay Example

The recent decisions of the courts in negligence cases on the question of whether a duty of care is owed increasingly show that a return to the comparative simplicity of Lord Atkin's speech in Donoghue v Stevenson is overdue. In areas of tort it has been noted that negligence has had a rapid change over the years due to an increase in pressure from the society and to protect public interests. However there have been policy grounds which have been used as a basis of decision by the courts. The structure of negligence is based on flexibility, but as it has been seen that the evolution of the tort was not quite favoured by the courts and so in recent years there have been restrictions placed on its scope. The main characteristics for asserting negligence are duty, breach, causation, and damage and this combined forms a claim for negligence. 1The decision of Donoghue v. Stevenson was the point from where carelessness or a general duty for carelessness was recognized. In the case it was recognized that a manufacturer owed a duty to ensure that the produce were free from defect, to the ultimate consumer, and that any damage to property or personal injury should have been foreseen by him. In the particular case the claimant argued that she was poisoned due to drinking the ginger beer, purchased by her friend, due to the fact that the opaque form of bottle did not allow her to notice that the beer had a decomposed snail in it. The House of Lords by a bare majority found that a duty of care was owed to her, thereby overturning the previous decisions. Lord Atkin formulated on the general conception on which a duty of care was determined upon or in other word the famous "neighbor principle". The principle said that all reasonable care should taken to avoid acts or omissions from which it was reasonably foreseeable would injure the neighbor. This case started to recognize what had been termed the social wrong and so based negligent liability by determining the fault. Damage also is an essential part for proving neglige3nce and so the claimant must prove that an injury was sustained as a result of the defendant's negligence. Fault, damage ad causation is necessary but not sufficient condition of liability. The focus therefore in claims of negligence is that a duty has to be established for any claims for possible liability. Thus even if it can be shown that there has been a damage caused to the claimant the courts may nevertheless not grant negligence if it is found that there is no duty situation. Further there have been restrictions imposed by courts for claims of pure economic loss. 2In Murphy v. Brentwood DC the courts limited the scope for claiming economic loss but there are possibilities of claiming it in a number of situations. Further the courts have created a distinction between acts and omissions, liability for positive acts have been long recognize but this has not been so for omissions which are only allowed in very exceptional circumstances. 3The duty of care attaches with it the concept of foresee ability as Lord Wright said in Bourhill v. Young that the concept of foresee ability is always relative to the individual affected . However it is further stressed that foresee ability in itself is not adequate for establishing duty of care. Even though Lord Atkin place great emphasis on reasonable contemplation or foresee ability of harm as a precondition for establishing duty of care it fails to explain many claims under physical, non-physical and property damage which are even though foreseeable but still fall outside the head of negligence. The test for causation limits liability and so the courts are allowed to make value judgments when ascertaining damages. The courts have at times used the but for test for establishing liability- would the loss have occurred but for the negligence of the defendant. This limits the liability of defendants to the extent of his personal responsibility. The question of whether a duty of care is owed by the defendant is a matter of law and so is ascertained by the highest appellate court. In the case of Donoghue v. Stevenson Lord Macmillan clearly formulated that the categories of negligence would never close and it was an ever expanding tort which can be greatly scrutinized by courts. Further Lord Atkin's Formulation of the neighbor principle did not place any particular emphasis on the kind of loss nor distinguished between acts or omissions.4 However, on an interpretation of donoghue later decisions found that the aim had been to restrict the scope only to personal injury and damage to property. The broad neighbor principle was though to be as an obiter dictum and so the scope of negligence limited.(Haynes v. Harwood) 5In Hedley Byrne v. Heller it was recognized for the first time by the House of Lords that an action for negligence can be brought about for negligent misstatement. However a duty of care was not recognized for pecuniary losses and the misstatements were not thought to be a part of the broad 'neighbour principle'. Further there were two judgments of the House of Lords in which the expansive approach was implemented. 6In Dorset Yacht Co. v. Home Office Lord Reid stated that the neighbor principle should now be used unless there are specific reasons or justification for its exclusion. This approach shifted the burden on the defendants to justify exclusion from liability. This approach was confirmed in 7Anns v. Merton London Borough Council where Lord Wilberforce Formulated the two tier test which was first to establish a whether there was a sufficient relationship of proximity or in other words neighbourhood between the alleged defendant and the claimant which resulted in a damage being caused to the claimant due to the carelessness of the defendant; if satisfied there was a duty of care; secondly if the first question is in the affirmative then whether there were any specific limits which would exclude liability. 8Further in Junior Books v. Veitchi went further by allowing a claim for financial expenditure (Dicta). The case of junior books was heavily criticized. The turning point came in the case of Murphy v. Brentwood District Council in which the House of Lords expressly overruled the decision of Anns by using the 1966 Practice Statement. Lord Keith stated that it that the decision in Anns was in no way in conformity with the estabilished principle. A discussion of how the decision of Murphy has changed the duty of care principle will now be focused upon. The overruling of the decision clearly means that the two tier test has gone away with and so it is no longer sufficient to impose a duty of care by the notion of foreseeability of harm. So Lord Wilberforce's emphasis on policy is said to have been scrapped way with. Thus the courts have decided to approach cases of duty of care by analogy and by categories of already decided cases. Thus the decision of Donoghue has been kept concise to cases of personal injury only. The English common law can be said to have used the principle as a limiting tool rather than doing what other Common wealth countries have done that is preserving flexibility. A three tier test has now been laid down which apart from foresee ability requires showing of a relationship of proximity between the defendant and the claimant; and finally whether it would be fair, just and reasonable to impose a duty. There have been cases where a further requirement of policy has been raised. It is far from clear how proximity and fair, just and reasonable are vital in respect of establishing a duty of care for positive acts. It can be safely stated that the fair, just and reasonable criterion has been to prevent or limit the scope of duty of care when proximity has been established.9 However there has been the overriding general public interest which has prevented duty of care from being established (McFarlane v. Tayside Health Board). This case shows how difficult it has been to predict the outcome for establishment of duty of care and how the ghost of uncertainty has surrounded the area of negligence. The conceptual uncertainty has been said to be a factor which has haunted in deciding a duty of care.10(Stovin v. Wise). Further Nicholas Mullany said that the three stage test has led to confusion. However it can be said that if what is observed in practice is looked into then the whole picture changes. The approach has changed considerably after the overruling of Anns. Firstly there is has been a cautious approach by the courts when deciding on the duty of care, that is whether there is any overlap between other areas of law is more closely scrutnised. Secondly any new attempts to establish attest for a duty of care are greatly discouraged. And so the more traditional categories are relied upon. This means that there can only be an extension if it can be done through an analogy of the existing categories. Thus it means that the duty of care should only be limited to the specific established areas. However this is a detrimental factor as not everything can be categorized under the pre-existing areas. Thus after looking at the evolution of the area of negligence and how the principle of duty of care has been established it can be said that the rigorous approach from the time of Donoghue till the case of Murphy have created nothing more than uncertainty in the area. Even though the development of law before the Practice Statement were remarkable there were at time flaws which concurrently led the principle of duty of care to greater uncertainty. Even though the decision in Murphy has led back to the case of Donoghue it can still be said that the existing category can not take down the ever increasing and changing situations which come about in courts. The decision of Donoghue even though is quite remarkable has its inconsistency in the sense that it led to the recognition of the neighbor principle which was a broad term in itself and had led to more uncertainty rather than development. However it had the advantage of being quite broad to include situation which can no longer be accommodated by the current law and therefore the situation would been much or would be much better if it can be brought back as close ass possible and in line with the principle established in Donoghue v. Stevenson. Thus it can be stated with some hesitation at the end that there is a possibility of the law being reverted to the exact same position as the position was in the case of Donoghue and so would be a more challenging task for the courts to keep flexibility along with certainty. However there has been policy grounds which have led to the duty of care being limited and this has been a major ground for prevention of claims being bought about through negligence. Thus it can be said that it is said that the current approach of the courts is more detrimental and leads to a very restricted amount of interpretation and therefore the return is more than necessary; however whether the approach creates greater simplicity is a matter of time but from the decided cases it can be said that the interpretation of the decision had led to uncertainty and complexity rather than creating simplicity for the courts and for claimants and the defendants. Bibliography: Rogers, Winfield & Jolowicz On Tort (16th Ed.) 2002 Weir, A Casebook on Tort (10th Ed.) 2004 Rose, Balckstones Statues pn Contract, Tort & Restitution (17th Ed.) 2006 Oughton, Marston & Harvey, Law of Torts Q&A (3rd Ed.) 2005 McBride, N. and R.Bagshaw Tort Law (Harlow:Longman, 2005) second edition Cane,P. 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