Discuss the development of the concept of the duty of care in the tort of negligence

Prior to 1932, the year of the Appeal Court's decision in Donoghue v Stevenson (1932), there was no standardised duty of care in negligence cases. The wrong or tort was acknowledged in certain situations.

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Prior to 1932, the year of the Appeal Court's decision in Donoghue v Stevenson (1932), there was no standardised duty of care in negligence cases. The wrong, or tort, was acknowledged in certain situations. These situations depended upon the courts finding that a duty was owed. Examples included, road accidents, bailments and dangerous goods. So the tort existed but it's application was limited to these special circumstances and questions arose as to whether this could be justified.

In Donoghue v Stevenson the opportunity arose for Lord Atkin to draw up a general rule or principle which would cover all the situations where the courts had already held that a party could be held liable in negligence. Donoghue v |Stevenson is of course the well known case of the rotting snail in a bottle of ginger beer. May Donoghue brought a claim for damages against David Stevenson after finding the rotting snail in a bottle of ginger beer made by him. The problem at the time was who could Ms Donoghue sue? She was unable to sue the owner of the café successfully, either in contract or tort. Mrs. Donoghue’s only possible recourse was to sue Stevenson, the manufacturer of the ginger beer. Success depended on the question:      

“…whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.”

Lord Atkin stated: "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. 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 so affected when I am directing my mind to the acts or omissions which are called in question."

The neighbour test, as laid down by Lord Atkin, has been criticised for being too wide.  However it was welcomed in the sense that lawyers were able to argue that why should the tort only be allowed in limited situations? Why could it not be allowed in new situations, not previously dealt with? No doubt it was equally unclear to clients as to why some claims appeared to be acceptable but not others.

In any event the case of Home Office v Dorset Yacht Co (1970) enabled Lord Reid to give consideration to the matter and he formed the view that Lord Atkin's rule should apply (in other words a neighbour relationship existed) unless there was some very good reason why it should be restricted. This would have represented a major step forward in the widening of the tort of negligence and the circumstances when a duty of care arose.
The basic elements of a tort action in negligence began to emerge. These were that:
  • there was an existence of a duty of care;
  • there had been a breach of duty based on an objective test;
  • damage had resulted as a consequence of the breach based on the 'but for' test.

There was no recognition of the need for Parliament to intervene at this time as a matter of policy or public safety and the judiciary were content to allow the matter to evolve on a case by case or piecemeal basis. The courts continued to develop principles.

For example, it was not long before the courts recognised that principles needed to be established in respect of the assessment of damages. As a result, the courts decided that they would not allow damage that was too remote a consequence of the breach. The judiciary were conscious that liability of this nature could give rise to substantial claims in commercial transactions of many kinds and that if the damage were too remote or unforeseen this might produce unfairness and difficulties in assessing risk.

In Anns v Merton London Borough Council (1977) the House of Lords developed a new two part test. The test was based in part on the issue of proximity. Lord Wilberforce stated "In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises...........
The second test according to Lord Wilberforce was “...........secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise”.

Unfortunately it was not long before problems began to emerge with the test in Anns. Such questions as 'was the test too broad so as to make life difficult for insurers?' and 'how did the test address the question of fairness between the parties?'. The test does after all place a great deal of responsibility upon the shoulders of judges as to whether a situation falls within the test. How was the second part of the test to be applied in a situation which fell outside of that of Anns?

Finally, there was concern that the test opened the floodgates with the concept of 'contemplation' or 'foreseeability'.
Criticisms were voiced in the following cases Peabody Donation Fund v Sir Lindsay Parkinson (1984) per Lord Keith; Murphy v Brentwood DC and Yuen Kun-yeu v AG of Hong Kong ( 1987).

The arguments continued and in Rowling v Takaro Properties (1987) Lord Keith voiced further concerns about a 'too literal' application of the test in Anns. As a result of such concerns a new test has emerged through the work of Lord Bridge in the case of Caparo Industries v Dickman (1990). The essential elements can now be said to be:

  • foreseeability of the damage (identified in such cases as Topp v London Country Bus (SW); Gunn v Wallsend Slipway and Engineering Co, Jolley v London Borough of Sutton);
  • a sufficiently 'proximate' relationship between the parties (as illustrated by such cases as Hill v CC of West Yorkshire, Dorset Yacht v Home Office);
  •           it must be fair, just and reasonable to impose such a duty (Hemmens v Wilson Browne; Ephraim v Newham LBC).
Finally we should not simply accept that the new test laid down by Lord Bridge is the end of the matter. There is the matter of policy considerations which play an important part in the development of the tort of negligence. In some situations by reason of policy, the courts have denied a claim:

  • Where the claimant is the author of his own misfortune (Philcox v Civil Aviation Authority (1995))
  • a finding of a duty of care would lead to unreasonable defensive practices by defendants seeking to avoid claims for negligence (Hill v CC of West Yorkshire (1988) and X (minors) v Bedfordshire CC (1995))
  • for policy reasons the courts have held that certain relationships between the parties warrants a particular decision - e.g. Lawyers Rondel v Worsley, Hall v Simons; Police Hill v CC of West Yorkshire, Reeves v MPC; Judges Sirros v Moore; Fire-fighters Capital and Counties v Hampshire CC.


There is therefore a degree of discretion allowed to the judges and the issue of them having too much say in this defence has not entirely gone away. Is it right or necessary that the judges should have their say over fairness as well as policy?

There also remains the issue of whether the later Caparo test is any different than the neighbour principle, what is the difference between the tests or is it really a matter of application by the judges? These discussions may be interesting and hold some merit but for the parties themselves their claim or liability may rest upon such arguments, and in the hands of the lawyers this is likely to cost money in terms of their time and fees.

There is also the argument that in this technological age of development and advancement the law needs to grow and develop to meet the ever changing needs of society so that it is perhaps inevitable that the law of negligence is bound to be about staying alert to such changes and about how they should be addressed.

(Word count 1527)

Donoghue v Stevenson [1932]

Home Office v Dorset Yacht Co Ltd [1970]

Anns v Merton London Borough Council [1977]

Peabody Donation Fund Governors v Sir Lindsay Parkinson & Co Ltd [1983]

Murphy v Brentwood District Council [1991]

Yuen Kun Yeu and Others v The Attorney General for and on behalf of the Commissioner of Deposit-taking Companies (Hong Kong) [1987]

Rowling v Takaro Properties Ltd [1987]

Caparo Industries pIc v Dickman & Ors [1990]

Topp v London Country Bus (South West) Ltd [1993]

Jolley v. Sutton London Borough Council [2000]

Hill v Chief Constable of West Yorkshire (BAILII: [1987]

Home Office v Dorset Yacht Co Ltd [1970]

homeless persons -- Ephraim v London Borough of Newham

X (Minors) v Bedfordshire CC [1995]

Rondel v Worsley [1967]

Arthur J S Hall & Co v Simons [1998]

Capital & Counties Plc v Hampshire County Council (BAILII: [1997]

Donoghue -v- Stevenson: The Snail & the Ginger Beer YouTube

Neighbour Principle

Caparo Three Part Test

The essay commences with a full consideration of Lord Atkin's neighbour test as laid down in Donoghue v Stevenson (1932) and quickly moves on to refer to the work of Lord Reid in Home Office v Dorset Yatch Co (1970).

The emerging elements of a negligence action are mentioned.

The essay emphasises the piecemeal development of the tort by the courts.

The work then progresses to deal with such important issues as remoteness and the two part test developed in Anns v Merton London Borough Council (1977) as well as concerns that the test opened the floodgates with such concepts as 'contemplation' and 'foreseeability'.

The essay moves on to discuss the test laid down by Lord Bridge in Caparo Industries v Dickman (1990) as well as a number of policy considerations which have resulted in claims being denied, including where the claimant is said to be the author of his own misfortune, where to find otherwise might lead to the defence of unreasonable practices or where particular relations merit special consideration.

A range of cases are incorporated to support the work and there is plenty of scope for you to develop and expand upon the discussions and arguments and place greater emphasis upon certain areas according to your needs.



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