…the well known passage of Lord Atkin’s speech should I think be regarded as a
statement of principle. It is not to be treated as if it were a statutory definition.
It will require qualification in new circumstances. But I think that the time has come
when we can and should say that it ought to apply unless there is some justification
or valid explanation for its exclusion.
Nonetheless, Lord Atkins’ concept of the ‘neighbour principle’ in 1932 seems to be too wide in scope. It created a risk of owing a duty to unlimited number of people, and that the general principle proposed, could not cover all aspects or possibilities that different cases contained. Furthermore, the justifications and valid explanations that Lord Reid speaks of in the latter quote, that would rationalize a different approach began at the same time as Lord Atkin proposed that general principle. Although Lord Macmillan’s agreed with Lord Atkin’s judgment in Donoghue v Stevenson, he focused attention at that time to the different approach that Lord Reid was speaking of; to today’s preferred method of establishing duty of care, namely the ‘incremental approach’ about 38 years prior to it’s implementation:
…the grounds of action may be as various and manifold as human errancy; and the
conception of legal responsibility may develop in adaptation to altering social
conditions and standards. The criterion of judgment must adjust and adapt itself to
the changing circumstances of life. The categories of negligence are never closed.
(per Lord Macmillan in Donoghue v Stevenson [1932])
What Lord Macmillan stated is very similar to the case-by-case approach that is currently favored by the courts and which was applied in a subsequent case called Caparo Industries plc v Dickman (1990). It can be inferred from the latter quote that Lord Macmillan was proposing the idea that cases should be decided as to the facts at hand; that every case brings in new details and specifics that have to be taken into consideration in relation to the social conditions and standards of that time, and to equivocate each case on the basis of precedent would not be wise because it would close doors to the emerging categories of negligence. Although Lord Atkins leads us to a general principle that may have intended to aid in identifying duty of care in negligence, he also at that time attested to the idea that we should take care in relying on some static test for all the answers:
To seek a complete logical definition of the general principle is probably
to go beyond the function of the judge, for the more general the definition the
more likely it is to omit essentials or to introduce non-essentials. (per Lord
Atkin in Donoghue v Stevenson [1932])
The wide scope of the ‘neighbour principle’ led to attempts to refine it; to make it into a test that would prove effective at discovering duty of care in all situations, even though there seemed to be hesitation on the part of the legal profession. Lord Wilberforce then formulated the ‘two stage’ test in the case of Anns v Merton London Borough Council [1978]:
First, one has to ask whether…there is sufficient relationship of proximity…in which case
a prima facie duty arises. Secondly, if the first question is answered affirmatively, it is
necessary to consider whether there are any policy considerations which ought to negative,
or to reduce or limit the scope of the duty.
Lord Wilberforce here conflated proximity with forseeability; that if there was a relationship of forseeability, that would lead to the assumption of proximity. In essence, the relationship between forseeability and proximity was blurred. Donoghue v Stevenson (1932) displaced the road of precedent and gave rise to the universal ‘Anns’ principle which was too narrow in scope. Lord Wilberforce’s ‘two stage’ test created an expansion in the tort of negligence almost instantaneously and allowed people to recover for economic loss which was an area that never permitted recovery in negligence. The courts feared that this test might open ‘flood gates,’ as in the period of 14 years from 1970 to 1984 the categories of negligence appeared as though they were substantially expanding in the areas of psychiatric harm and pure economic loss. In the case of Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1985), Lord Wilberforce’s ‘two stage’ test was highly criticized by Lord Keith. Lord Keith stated that in addition to proximity, and forseeability the court must also decide whether it is ‘fair, just and reasonable’ to impose a duty of care:
There has been a tendency in some recent cases to treat these passages as being themselves
of a definitive character. This is a temptation to be resisted in determining whether or not a
duty of care of a particular scope was incumbent on the defendant. It is material to take
into consideration whether it is just and reasonable that it should be so.
It appears as thought the Anne’s test was too simplistic in nature, and concluding on the basis of two questions used as a test of duty of care was not an established principle. It created more classes of cases into the law of negligence that would not have been introduced, had there been an established principle:
…Anns did not proceed on any basis of established principle, but introduced new
species of liability governed by a principle indeterminate in character… (per Lord Keith
in Murphy v Brentwood DC [1990])
Lord Keith could have further been aiming to the issue that a test should not create a situation where every person is responsible for another person’s actions, as the Anns test consistently did. (Hill v Chief Constable West Yorks [1989])
The case of Murphy v Brentwood District Council (1991) overruled the facts in the case of Anns, and indicated the end to Lord Wilberforce’s ‘two stage’ test. The latter case introduced the idea of creating an ‘incremental approach’ in defining duty of care in negligence which appears to be the preferred model used in today’s decisions regarding the existence of duty of care in negligence cases.
In the case of Caparo Industries plc v Dickman (1990) the idea of a single general principle in imposing a duty of care was criticized, and ‘three stage’ test was presented which seems to be more promising at defining when a duty of care is owed compared to other tests proposed by Lord Atkin and Lord Wilberforce in the past. The three criteria for this test of duty of care were forseeability of damage, proximity of relationships, and whether it was ‘fair, just, or reasonable’ to impose such a duty. The decision in this case was guided by existing cases instead of a single general principle like that of the Anns test. Any new situation would first have to show that it is equivalent to an already existing circumstance in which duty of care has been imposed. If one cannot demonstrate any existing precedent, only then can the ‘three stage’ test be used. In reality, this approach can be viewed as a ‘four stage’ test. Lord Roskill directs attention to Justice Brennan in the case of Sutherland Shire Council v Heyman (1985):
Of course, if foreseeability of injury to another were the exhaustive criterion of a prima facie
duty to act to prevent the occurrence of that injury—it would be essential to introduce some
kind of restrictive qualification—perhaps a qualification of the kind stated in second stage
of the general proposition of Anns. I am unable to accept that approach. It is preferable,
in my view, that the law should develop novel categories of negligence incrementally and
by analogy with established categories…
However, the above idea must also be implemented with care, as the courts should realize that every case is different from the other, and that one cannot apply every fact of an already existing case, to the case at hand. There will ultimately be differences between new cases and existing authority, and one has to take the latter into consideration even when applying the incremental approach. Lord Oliver warns the courts of the same issue:
One must however, be careful about seeking to find any general statement which
will serve as a touchstone for all cases…circumstances may differ inherently,
and…there can be no necessary assumption that those features which have served
in one case to relate the relationship between the plaintiff and the defendant on
which liability depends will necessarily be determinative of liability in the different
circumstances of another case. (Caparo Industries pcl v Dickman [1990])
Lord Atkin’s ‘neighbour principle’ in Donoghue v Stevenson (1932) and subsequently the ‘Anns test’ produced a likelihood that there could be a formula in imposing duty of care. However, the criticisms towards these tests that arose out of cases such as Peabody v Parkinson (1985), Caparo pcl v Dickman (1990), Murphy v Brentwood D.C. (1991) mentioned above, lead one to agree with Lord Roskill’s statement that, “there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the question whether given certain facts, the law will or will not impose liability for negligence.” In imposing a duty of care, it is important to realize that every case at hand is different; that one general principle cannot possibly extend to all cases. It is imperative for each case to be judged on its own merits and its own set of facts in order to establish whether a duty exists.
