“In the law of negligence, the neighbour principle enunciated by Lord Atkin in Donoghue v Stevenson (1932) AC 562, 580 provides an adequate basis on which to resolve duty of care questions” Discuss.
The so-called “neighbour principle” laid down in the seminal case Donoghue v Stephenson (1932) provided the foundation and conceptual cornerstone for the development of the law of negligence in the twentieth century. The seemingly trivial facts of the case, which concerned two friends who visited a café only for one of them to discover a decomposed snail in a bottle of ginger beer purchased by the other, belie the importance of the decision ultimately handed down by the House of Lords. In the following discussion the principle articulated by Lord Atkin to determine the boundaries of the duty of care in negligence is considered in the context of other relevant case law.
In Donoghue v Stephenson the House of Lords deemed it necessary to overcome the problems generated by privity of contract in order to provide an alternative route of claim for an injured party. It was Mrs Donoghue’s friend that purchased the ginger beer that ultimately caused her injury and therefore only her friend that had a right to sue under the contract. The House of Lords solved this problem by imposing liability in negligence on the owner of the café, specifying that such would be possible where a duty of care could be found to lie between the owner (the tortfeasors) and the victim (Mrs Donoghue). Lord Atkin outlined the parameters of the duty of care in this field in the following often-quoted terms:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be 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 reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”
The neighbour principle therefore opens the door to claims in negligence for injured parties by identifying the class of people to whom a duty may be owed in any particular scenario. That class of people includes those who are close enough to be directly affected by the allegedly negligent act and close enough that the alleged tortfeasor should have had their interests in contemplation when acting as he or she did. It is clear that the principle does not throw open the floodgates to unlimited claims, because a tortfeasor will not be held to owe a duty of care to those who are not close enough to be in his or her contemplation at the moment of the tortious act or omission.
For decades the neighbour principle stood as the sovereign guiding authority in this field of law. However, the title to this work asks for a discussion as to whether the precedent set in Donoghue “provides an adequate basis on which to resolve duty of care questions” and the answer to that question is offered by subsequent judicial decisions on the issue.
Although the neighbour principle became the guiding light on the issue of the extent of the duty of care, courts inevitably encountered situations in which it was necessary to refine and elaborate on its basic thesis. For example, the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) concerned a negligent statement (rather than an act or omission) made by a bank. In this context the House of Lords held that a plaintiff could establish a duty of care only if it could be shown that a special relationship subsisted between the parties. Lord Reid explained that a special relationship could be found:
“Where it is plain that the party seeking the information or advice was trusting the other to exercise such a degree of care as the circumstances required, where it was reasonable for him to do that, and where the other gave the information or advice when he knew or ought to have known that the enquirer was relying on him.”
Hedley Byrne thus built further law on the edifice of the neighbour principle and thereafter the law on the duty of care was further advanced in Caparo Industries plc v Dickman (1990), again by the House of Lords. In Caparo, Lord Devlin explained the Hedley Byrne ‘special relationship’ as being one of close proximity broadly equivalent to a contractual relationship. Lord Bridge enunciated the appropriate policy in terms that have become almost as widely known as Lord Atkin’s original statement:
“In addition to foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope upon the one party for the benefit of the other.”
Therefore, in Caparo, the neighbour principle was effectively absorbed into a wider tripartite test based on foreseeability, proximity and considerations of fairness and justice. Subsequent decisions, such as McFarlane v Tayside Health Board (2000), D v East Berkshire Community NHS Trust and others  and Vowles v Evans and Welsh Rugby Union Ltd (2003) have confirmed that it is necessary to determine the question of duty of care not only by reference to the neighbour principle but also by considering the nature of the relationship between the parties and whether in all the circumstances it is fair, just and reasonable to impose a duty of care.
Lord Atkin introduced his explanation of the neighbour principle in Donoghue by stating:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour;”
This was perhaps initially misleading because, as the Bible records, when Jesus Christ was asked the question “Lord who is my neighbour?” he answered “Everyone is your neighbour”. The neighbour principle that Lord Atkin proceeded to enunciate at law is of course much more restricted and pragmatic in reality.
The question as to whether the neighbour principle provides an adequate basis on which to resolve duty of care questions is fairly easy to answer. The principle laid down in Donoghue certainly provided a solid foundation for the resolution of duty of care issues, but it did not provide an overarching and fully comprehensive principle immune from subsequent development and refinement. Subsequent case law, such as Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) and Caparo Industries plc v Dickman (1990) has elaborated on the neighbour principle, adding meat to the bones of Lord Atkin’s celebrated formulation in more recent times.
For example, the Caparo case confirmed that questions of proximity and deliberation as to the fairness, justice and reasonableness of the imposition of a duty of care should be considered alongside the application of the traditional neighbour principle in deciding whether a duty of care exists in any particular case. This ruling was endorsed by the House of Lords in its decision in the relatively recent case of Sutradhar v Natural Environment Research Council (2006).
So the law on duty of care has developed since 1932, establishing new duties in an incremental fashion. Policy has remained decisive in establishing a duty of care, judges having the power to decide if there ‘should’ be a duty in particular circumstances. Judges have therefore found themselves departing from a strict ‘neighbour principle’ when moral and practical considerations arise, for example recognising the need to protect professionals whose work inherently poses susceptibility to negligence claims. This can be seen in Rondel v Worsley (1969) where the court was not prepared to impose liability on a barrister for his conduct in court.
Norman Katter discusses the ‘neighbour principle’ in his article “Who then in law is my neighbour”. He implies that the search for a general formula to determine duty of care has reverted to its origins and that Lord Atkin’s ‘neighbour principle’ has and will continue to provide the basic framework in determining duty of care saying:
“A trilogy of recent cases before the Full Bench of the High Court of Australia indicate a return to the celebrated statements of Lord Atkin, formulated some seventy years earlier, as the underlying guide in determining whether a duty of care exists in any circumstance. Whilst various approaches have emerged in the High Court over the past decade involving differing combinations of principle, policy and incremental development, none has proved satisfactory as a general determinant of duty of care in the expanding focus of negligence litigation”.
Moreover Katter suggests that other, new approaches are flawed, for instance the incremental approach which relies on established precedent:
“The approaches that have emerged over the past decade in the High Court of Australia are variant combinations of incremental development, principle and policy. Firstly, an incremental or categories approach recognizing a duty of care in discrete categories. This approach relies on deduction and analogy with precedents in established categories of duty.”
Therefore, in conclusion it is argued that the neighbour principle provided a good conceptual starting point for the law in this field, but as subsequent case law has demonstrated it is not adequate for exclusive application. The neighbour principle remains the foundation of the law on the duty of care, but it has been added to and refined by the courts over the years and thus should not be relied upon slavishly or in a blinkered fashion.
Bermingham V. and Brennan C., Tort Law, (2008) Oxford University Press
Cooke J., Law of Tort, (2009) Longman
Kidner R., Casebook on Torts, (2008) Oxford University Press
Oughton D., Marston J. and Harvey B., Law of Torts, (2007) Oxford University Press
Katter N., “Who then in law is my neighbour?” – The Tort Law Review 12(2):pp. 85-97. (2004)