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Essay: Duty of Care and How it Has Impacted Negligence Law Over Time

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Duty of care

There is no doubt but that the notion of duty of care has expanded since it was first established back in 1932.I will be examining some cases which have all in their own right impacted what we know as the duty of care in negligence. Duty of care is defined as ' a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use". 1 It is said that If a person's actions "do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence."2

As I previously stated, the duty of care in negligence was first established by Lord Atkin in Donoghue v Stevenson [1932] A.C. 562 Prior to Donoghue v Stevenson, an applicant would have to prove an existing legal relationship between himself and the defendant in order for him to be successful. Firstly, we will establish the facts of the case. Ms. Donoghue was bought a dark opaque bottle of ginger ale by her friend while in a cafe, Ms. Donoghue drank most of the content of the drink and had only become aware of a decomposed snail which was in her drink after she had poured the remainder of the contents over her ice-cream. The sight of the snail had caused Ms. Donoghue a great deal of shock and she was later diagnosed with gastroenteritis.3 Ms. Donoghue subsequently decided to sue the manufacturer of the drink whose details were on the label of the bottle. There was one problem which stood in Ms. Donoghue's way, she could not sue the manufacturer for breach of contract as there was no legal contract between herself and the manufacturer. The manufacturer did not owe her a legal duty which ultimately meant no recovery for Ms. Donoghue and her initial action failed.4

Lord Atkin however established that the manufacturer did owe a duty of care to Ms. Donoghue, stating "That duty, in my opinion, he owes to those whom he intends to consume his products"5. It was the duty of the manufacture to ensure the utmost safety of his products which were intended for human consumption which included the prevention of allowing snails to enter his products. There was no doubt that the manufacturer failed at these duties which was the direct result of Ms. Donoghue's shock and sickness.6It was established within Donoghue v Stevenson that for a duty of care to arise, a person or property must be in such proximity to another person or property that if due care was not taken then damage could be done to the other7. Proximity is defined as " nearness in space, time, or relationship, which translates to a legal relationship between the parties from which the law will attribute a duty of care.8 In order to determine whether a relationship of proximity existed Lord Atkin developed "the neighbour principle" which would go on to provide the foundations for all future negligence cases. Lord Atkin stated in his judgement of Donoghue v Stevenson that "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 question9". This neighbour principle would then to provide the foundations for when a court is establishing whether a person was owed a particular duty of care and due to its versatility, it can be used in any given scenario.10The neighbour test could be very broad allowing liability in a whole range of situations. The approach of the Donoghue case was accepted by the Irish courts, whose approach involved an examination of the issues of proximity and foreseeability and any policy considerations that would limit or negate the scope of the duty of care. 11

Another case which no doubt shaped the duty of care in negligence was Anns v Merton London Borough Council [1978] in which Lord Wilberforce introduced a two-stage test which was built upon the neighbour test, to impose a duty of care.12The claimants were tenants in a block of flats. The flats had suffered structural damage which had been caused by the negligence of the appellants in allowing the builders to construct the block upon foundations which were only 2 feet 6 inches deep instead of 3 feet or deeper as required by the deposited plans.The first step was to establish whether there was a relationship of proximity between the claimant and the defender in which carelessness on either part is likely to cause damage.13If it is established that a duty of care does exist, the second step is to consider whether there are any considerations that may reduce or limit the scope of the duty or the class a person to who it was owed or the damages to which a breach of it may give rise14 which essentially allows the defendant to put forward any policy considerations that may nullify their liability.15 There was a huge backlash against this test, due to how broad the test was.16 Never the less it was still accepted and favoured by the Irish courts.17

In 1990 "the Neighbour principle" that was established in Donoghue v Stevenson [1932], was essentially redefined by the introduction of the " Caparo test" in Caparo v Dickman [1990]. Caparo Industries, the applicants had purchased shares in Fidelity Plc and eventually had acquired control of Fidelity Plc. Caparo had alleged that the purchase of shares and the subsequent bid had all been made in reliance upon the accounts given and that those accounts were inaccurate and misleading, in that an apparent pre-tax profit of some £1.3m should in fact have been shown as a loss of over £400,00018. Caparo claimed that had he known the true facts he would have never made a bid at the price paid or indeed at all19 . The House of Lords held that while it is probable that investors may use published accounts to make decisions, the accountants who created the accounts would not be liable for losses as a result of the accounts being incorrect because there was not enough proximity between the accountants and the applicant.20This is how the "Caparo test" arose. In addition to the two ingredients (reasonable foreseeability and proximity) determined in Donoghue v Stevenson which are necessary to give rise to a duty of care, it was found by the house of lords that it is also necessary to consider whether the imposition of a duty is " fair, just and reasonable". When using the Caparo test all three ingredients are given equal weight to decide whether a duty of care exists which shows a slight shift of duty of care in negligence as it is the quite opposite to the position in Anns where the assumption of duty could be overruled by policy considerations.21

The introduction of the Caparo test was one of the first example of courts veering more towards relying on the issue of policy rather than proximity when deciding on whether to impose a duty of care or not. With that said, the Anns test was still favoured by the Irish courts. It has been said that the Caparo test did not make any significant changes to the Anns test but rather introduced more areas of ambiguity, because of this the Anns test was favoured for its simplicity.22The Irish courts continued on, using the approach of Donoghue and Anns which involved an examination of the issues of proximity and foreseeability.23

In Ward v McMaster [1988] IR 337 the first plaintiff had applied to the defendant Council as housing authority for Co. Louth, for a loan in the sum of £12,000 under the provisions of the Act of 1966, and paid an application fee of £10. The defendant Council, in pursuance of its statutory duties, sent a valuer to value the premises. The valuer, who had no qualifications in building construction, inspected the bungalow and found no defects. The plaintiffs went into occupation in December, 1981, but very soon began to experience difficulties with dampness and a smoking chimney. In August, 1982, the plaintiffs had the bungalow surveyed by an engineer who reported that it was structurally unsound, a source of danger and a risk to health. The plaintiffs were forced to abandon the bungalow. The council was found by the high court to be negligent, as it had failed to engage a person competent to carry out the investigation.24 The local authority argued that it failed in a duty not to the plaintiffs but to the public whose rates and taxes went into funding the local authority. The court rejected this. It was found applying the principle in Donoghue v. Stevenson [1932] and confirmed in Anns v. Merton London Borough [1978] that there was proximity between the parties. The court held that it was foreseeable for the officers of the housing authority that a purchaser under the scheme "will both lack the personal means of having an expert examination and may well think, as the first plaintiff thought, that the very circumstances of the housing authority investing its money in the house was a badge of quality"25. The issue of proximity was very much relied on, Finlay C.J. stated in his judgement that such an exemption (using a consideration of policy) would have to be26 “a very powerful one” if it was to be used to deny an injured party of his “right to redress”27.

I agree that the long expansion of the duty of care over the course of the twentieth century came to a definitive halt in Glencar v Mayo County Council [2002]. The judgement within Glencar v Mayo County Council [2002] doesn't follow the traditional stance of the Irish courts but rather it sided very much with English law28, relying heavily on the issue of policy. Policy is defined as the general purpose or tendency considered as directed to the welfare or prosperity of the state or community."29This translates into fairness reasons and community welfare reasons.30The situation should be one in which the court considers it fair, just and reasonable.  

The applicants, a public company registered in Dublin and a public company registered in Belfast. Their business is the prospecting for and the mining of ores and minerals.  They had obtained ten prospecting licences from the Minister for energy the purposes of the exploration for gold in townlands south of Westport in the County of Mayo.31The applicants had spent more than £1.5 million on their exploration programme in the areas authorised by their licenses. The applicants convinced by their explorations, believed that gold in commercial quantities is likely to be found but further costly exploration and analysis would be needed. In order to fund this, the applicants had negotiations with Newcrest Mining Ltd., the largest specialist gold mining company in Australia, which resulted in agreeing to enter into a joint venture with the applicants in which they would invest £1.6 million32. The joint venture collapsed following the introduction of a mining ban by Mayo County Council pursuant to its 1992 draft county plan. Subsequently the applicants sought to recover damages from Mayo County Council for breach of duty.33

Ultimately it was found by the high court that although Mayo County Council had acted negligently in adopting the mining ban, they owed no duty of care to the applicants and that "It would be neither fair nor reasonable nor would the proximity of the parties suggest that there was any duty of care extant between the respondent and the applicants when the mining ban was imposed." Cj Keane stated that the applicants "were not even then applicants for a planning permission and indeed there was no guarantee that they would ever become so"34. Cj Keane favoured the Caparo test in his judgement stating that Ward v McMaster was an unqualified endorsement of Anns.35

The decision in Glencar v Mayo County Council [2002] showed just how much the issue of proving a duty of care had expanded since being established in 1932. The matter of Proximity which was the core of the neighbour principle, no longer commanded the respect it previously had, and policy considerations could now more easily, and openly overrule any claim of duty of care36.

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