MarIus

3.2.1.1 The Neighbour principle: Donoghue v Stevenson

A general principle of the duty of care was first created in Donoghue v Stevenson(4)Donoghue v Stevenson [1932] UKHL 100., where Lord Atkin gave his famous speech on the duty under tort of negligence(5) Van Dam, above no 49, 103–4; Jones M A et al., above no 49, paras 8–12.:

“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.”(6)Donoghue v Stevenson [1932] UKHL 100 paragraph 580.(author’s own highlight).

The case concerned a claimant having a bottle of ginger beer who claimed to have suffered illness from the snail later found in the beer. The claimant had no contractual relationship with the retailer or the manufacturer and thus sued the manufacturer in tort. The manufacturer was here found to owe a duty of care to the consumer (claimant) to take reasonable care to ensure the safety of the product (the ginger beer).

The case laid the initial grounds for the so-called neighbour principle, according to which you owe your neighbour a duty of care for foreseeable danger. Thus, it set the initial two requirements for the now applicable duty of care.

The speech was however not followed in later case law and thus not binding as such.(7) Jones M A et al., above no 4., paras 8–14.

A change came in Home Office v Dorset Yacht(8)Home Office v Dorset Yacht Co Ltd [1970] UKHL 2.,where the court applied the Atkin principle of a notional duty of care laid down in Donoghue v Stevenson. In Home Office v Dorset Yacht, borstal boys were held on an island where they had some sense of freedom. However, they were still under the direct control of the prison officers who, in their capacity as officers, had a duty to supervise the prisoners. As a result hereof, the prison officers were found to owe a duty of care to the owners of a yacht, which was used and damaged by the borstal boys when they tried to escape the island. It was held likely that damage would occur because of the failure of the officers to supervise, which the officers ought to have foreseen.(9) Ibid., paragraphs 1029, 1033. Lord Reid further argued that Lord Atkin’s speech in Donoghue v Stevenson “ought to apply unless there is some justification of valid explanation for its exclusion.”.(10) Ibid., paragraph 1027.

3.2.1.2 Three-stage test: Caparo Plc v Dickmann

It wasn’t until the Caparo Plc v Dickmann(11)Caparo Industries Plc v Dickman [1990] UKHL 2.case that a test for when a duty of care was owed was set in stone by Lord Bridge:

“What emerges is that, in addition to the 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 law should impose a duty of a given scope upon the one party for the benefit of the other.”(12) Ibid., paragraphs 617–618; The passage cited above and principle laid down herein has later been cited in numerous cases, see for instance Chandler v Cape Plc [2012] EWCA Civ 525 paragraph 32. (author’s own highlight). Thus, Lord Bridge added the third condition for the duty of care and defined the three criteria more specifically.

Accordingly, the three-stage test set out in Caparo Plc v Dickmann must be met before a duty of care can be invoked. This entails that firstly the relationship between the wrongdoer and the innocent party must be one of proximity or neighbourhood.(13) The neighbourhood criteria allows the circumvention of the privity of contract principle, according to which only parties to the contract can sue based on the contract and thus removes the possibilities for third parties to obtain legal rights from other parties contractual relationships, see Ulfbeck, ‘Supply Chain Liability for Workers’ Injuries – Lessons to Be Learned from Products Liability?’, 280. Secondly, the damage must be foreseeable, and thirdly it must be just, fair and reasonable to impose the duty of care.(14)Caparo Industries Plc v Dickman [1990] UKHL 2 paragraph 618.

The requirement of proximity can come in different forms, such as physical, circumstantial, causal or assumed closeness between the defendant and claimant.(15) Jones M A et al., above no 4., paras 8–16.

The requirement of foreseeability focuses on the knowledge that the defendant ought to have. “The greater the awareness of the potential for harm, the more likely it is that this criterion will be satisfied”(16) Ibid., paras 8–16..

Lastly, the requirement of fairness, justice and reasonableness includes a wide variety of considerations, from the justice between the parties in the case to the broader justice of such duty from a judicial and societal perspective.(17) Ibid., paras 8–17. The test is thus a way to restrict a floodgate of liability cases to open and maintain some certainty for the law to remain effective.(18) Ibid., paras 8–19, 8–24; In relation to supply chain liability, the floodgate argument was the basis for rejecting the claim of the injured workers at the Rana Plaza factory in Bangladesh, see Das v. George Weston Limited 2017 ONSC 4129 paragraph 452; Ulfbeck, ‘Supply Chain Liability for Workers’ Injuries – Lessons to Be Learned from Products Liability?’, 283; Policy considerations are arguably the main obstacles in supply chain liabiilty cases for imposing liability, see Ulfbeck and Ehlers, ‘Direct and Vicarious Liability’, 94–95, 97.

When considering the last requirement, fairness, justice and reasonableness, one must look to the fact that the harmed person must be unharmed or indemnified by the person having harmed the other against the proportionality of imposing this burden on the wrongdoer. This includes looking at protection via insurance or contractually and the risk of exposure of the claimant and defendant.(19) Jones M A et al., above no 4., paras 8–18. The lack of protection of the consumer in Donoghue v Stevenson who didn’t have a contractual remedy with the defendant, was therefore a crucial argument in imposing the duty of care upon the defendant.

Only in exceptional cases will the courts allow a significant extension of the duty of care. Usually, it is done in smaller steps, i.e. seeing whether allowing a duty to be found is merely an extension of a duty already recognised.(20) Ibid., paras 8–22.

In general, the three-stage test has been established in cases concerned with economic loss or public services. However, the test has also been applied to personal injury.(21) Ibid., paras 8–24ff.

To summarise, the duty of care is a constantly developing concept. However, three requirements to establish such a duty of care for acts have been set out, namely proximity, foreseeability, and fair, just and reasonable. When assessing these requirements, one must look to case law as well as broader judicial and societal principles.

As Begum v Maran is based on a mixture in arguments of liability based on acts and omissions, it is further relevant to lay the grounds for the duty of care requirements when it comes to omissions.

3.2.2.1 Exceptions to the general rule of no liability for pure omissions

A duty to take action in the interest of another and thus become liable if failing to do so, will only be imposed in special cases. These special cases amount to three. The first is if there is a special relationship between the parties, which entitles one party to rely on affirmative action being taken by the other. Secondly, if there is a specific assumption of responsibility by one party to act affirmatively to benefit the other.(25) This exception was the one, which was held to be the basis of a duty of care owed by the parent company towards its subsidiaries employees in Chandler v Cape Plc [2011] EWHC 951 (QB) paragraph 71; Chandler v Cape Plc [2012] EWCA Civ 525 paragraphs 63–64. The duty was reasoned with the omission from the parent company to properly advise its subsidiary on how to handle asbestos safely. The case was the landmark case setting forth four criteria for when a parent company will be liable for its subsidiary based on the duty of care assumption of responsibility. Begum v Maran falls without this category as the Defendant in the case was not a parent company. One could argue that the case would be applicable if the Claimant had sought damages against the registered owner or ship operator as the parent company based on a notion of control between the parties. Thirdly, where one party must bear a specific responsibility for protecting the other from harm caused by third parties.(26) Jones M A et al., above no 49, paras 8–50. In regards to the third case, there is no general duty to prevent a third party from causing harm to another.(27)Maloco v Littlewoods Organisation Ltd [1987] UKHL 3; Jones M A et al., above no 49, paras 8–54. The reason being is that it would be too difficult (and onerous) to predict whether a third party would cause damage as a result of a defendant’s failure to act.

However, Lord Goff in Smith v Littlewoods identified four exceptions to the main rule.(28) Lord Mackay and Lord Goff disagreed as to the reason and basis for the exceptions, but Clerk & Lindsell suggests that the four exceptions posed by Lord Goff are to be preferred, see Jones M A et al., above no 49, paras 8–54. Thus, in the following four cases, liability for third parties’ harm may be imposed on the defendant due to the defendant’s failure to act.

Firstly, where there is a special relationship between the defendant and claimant based on an assumption of responsibility by the defendant.(29) The first exception was stated by Lord Goff to be able to both in and outside contract. Secondly, where there is a special relationship between the defendant and claimant based on control by the defendant. Thirdly, where the defendant is responsible for a state of danger, which may be exploited by a third party.(30)Maloco v Littlewoods Organisation Ltd [1987] UKHL 3 paragraph 273 Finally, where the defendant is responsible for property which may be used by a third party to cause damage.(31) Ibid., paragraphs 271–277.

In summary, there does exist a duty of care. Three requirements must be fulfilled, namely proximity, foreseeability and that it is fair, just and reasonable to impose the duty. In the area of omissions, only certain situations will create a duty of care. For the present case, especially the situation where a defendant creates a state of danger, which a third party exploits, is relevant. Thus, the thesis will move to analysing the relevant case, and in this regard assess whether the requirements laid out in the present chapter can be said to have created a duty of care and thus somewhat fill the regulatory gaps identified in chapter 2.