Donoghue V Stephenson – Civil Law

Until 1932 a previous precedent had to be found to establish a duty of care in a particular case. However, in Donoghue, Lord Atkin said:

“There must be and is some general conception of relations giving rise to a duty of care of which particular cases found in the books are instances.”

He laid down general rules as to when a duty would arise in future cases.

1. “ You must take reasonable care to avoid acts or omissions which you would reasonably foresee would be likely to injure your neighbours.”

2. “Who is my neighbour?” persons who are so closely and directly affected by my act that I ought to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This decision based on principle as it was derives from a wide ratio and was in theory, applicable therefore in a whole range of new situations.

1932 – 1978: little attempt was made by the courts to extend the scope of negligence. Courts were careful to find precedents.

Then in 1978 came the decision in Anns v Merton Borough Council. This made local authorities liable for damages arising from negligent use (or non-use) of their statutory powers. This like Donoghue was another decision based on principle and, like Donoghue, left the gates wide open to further developments in the laws.

In Junior Books v Veitch Co Ltd (1983) the principle in Ann’s was applied for the first time to purely ‘economic loss’.

And in McLoughlin v O’Brian (1983) it was applied to ‘Nervous Shock’.

This ‘swelling of the Ann’s principle led to increasing concern on the part of the law lords and a lot of ‘distinguishing’ to avoid applying the principle in Ann’s.

Finally in Murphy 1990 the Lords decided to over-rule Ann’s (invoking the 1966 Practice Statement.) in this case the Lords decided that plaintiffs would not be able to claim for loss which is purely ‘economic’. The problem was that if people could claim for economic loss, all kinds of businesses and government agencies would be open to claims that might bankrupt them.

Also, insurance premiums might go through the roof.

Would the amount of litigation flood the courts?

Would professionals stop offering risky services?

In Caparo Industries v Dickman (1990) the Lords laid down the criteria for deciding whether a claim should be allowed in negligence,

1. Was the damage reasonably foreseeable?

2. Was the relationship between the defendant and the plaintiff significantly proximate?

3. Is it just and reasonable to impose a duty of care?

In practice, it seems to mean that in personal injury and damage to property cases, a duty of care will arise where:

1. There is a relevant precedent based on the ‘neighbours’ principle.

2. No issues of public policy make the liability undesirable.

So, the development of the law negligence looks like:

Pepper v Hart was upheld in the Three Rivers v Bank of England . This case involved interpretation of legislation passed to implement EU. Directive Act was not ambiguous, Hansard could throw light on whether certain duties were intended to be imposed on council, this not being apparent from the Act. Held, therefore Hansard could be consulted even where there was no ambiguity in order to discover general legislative purpose i.e. give affect to EU law.