law-notes-sharing-moment (TORT : DUTY OF CARE : Anns Test)


HI guys...


wanna update this post with a lot of self-opinion & summarized notes...
hope u guys can used it up for your coming law journey or whatsoever...
JUST WANNA SHARE THIS NOTES SO THAT IT CAN HELP U GUYS IN GETTING STARTED TO KNOW SOME BASIC PRINCIPLE IN THOSE FOLLOWING LAW's FIELD...
WHATEVER IT'S BOOKS SEEM TO BE THE BEST SOURCES TO BE RELIED ON RATHER THAN BLOG & WHATSOEVER....
*If u know what i mean :)


TORT : DUTY OF CARE : Anns Test


            This test is derived from Anns v London Borough of Merton[1] by Lord Wilberforce. The plaintiffs were tenants in a block of flats. The flats suffered from structural defects due to inadequate foundations which were 2 feet 6 inches deep instead of at least 3 feet deep as required. The defendant council was responsible for inspecting the foundations during the construction of the flats. The House of Lords unanimously held that the defendant did owe a duty of care to ensure that the foundations were of the correct depth.

Lord Wilberforce introduced a two stage test for imposing a duty of care as follows: 
1.    Prima facie duty of care
Firstly, one has to ask whether, between the alleged wrongdoer and the person who has suffered damage, “Is there 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?
If yes, a prima facie duty of care arises.
2.    Policy
Next, 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.
The first stage essentially corresponds to the neighbour test. However, in order to relieve the fears that this will result in floodgates, this test was subject to the second stage which provided an escape clause for the defendants where there existed policy reasons for denying the imposition of a duty of care.
            In the second stage, it lies upon the defendant to disprove the allegations of a duty of care on him, since a prima facie duty of care arose from the first step. It was critized that the second step was supposed to be inherent on the first stage so as not to lay a heavy burden of proof on the defendants.
            This test seems to make problems simpler for the plaintiffs that suffered damages as it was rather uncomplicated to establish a relationship of proximity or neighbourhood since the relationship need not necessarily be an established relationship as dictated by Lord Wilberforce, "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."
            It can also be seen that there are some similarity between the Anns case and the Donoghue v Stevenson case. Both cases involved with vital inspection prior to the produce of products for end-users In the Donoghue case, the plaintiff suffered from personal injuries and she claimed that there should be proper inspection to the ginger beer bottles before they were filled with liquid. As a result of the negligence of the manufacturer, the plaintiff suffered personal injuries. In the Anns test, the house tenants claimed that the defendant council should have done the proper inspections on the foundations of the flats. Due to the negligence of the council in doing the inspection, the plaintiffs suffered from damage in their property. However, the differing point between the cases is that the plaintiff in Donoghue case suffered personal injuries whereas in the Anns case, the plaintiffs can be said to suffer economic loss only. That is why the Anns test seems to give more protection to the victims than they should deserve. 
            In the Dutton v Bognor Regis Urban District Council[2], Mrs Dutton, the plaintiff sought to recover damages from a builder, Bognor Regis Building Co Ltd, and the local council, Bognor Regis Urban District Council, who certified that her house was sound. However, it emerged that her house's foundations were defective because it had been built on a rubbish tip. The handicap would have been discovered if proper checks were made. Mrs Dutton settled the claim with the builder for £625 after getting advice that an action in negligence could not succeed, but continued in an action against the council, and was awarded damages £2,115 by the judge. The council appealed to the Court of Appeal and the Court of Appeal held that Mrs Dutton could recover money from the council, as an extension of the principle in Donoghue v Stevenson. It was fair and reasonable that the council should be liable to a later purchaser of a house that its surveyor had negligently certified to be in good condition. This is another case that has similar facts to the Anns case. 
            As we can see, the relationship of proximity has been extended. Prior to Donoghue case, we might be able to see the proximity between the manufacturer with retailer, and retailer with customer. However, if the relationship of proximity were only limited to the close scope, many actions for negligence would have failed. That is why Mrs Dutton in the Bognor Regis case was advised that she would not succeed in an action against the builder. In fact, she could recover damages from the council which appeared to be further away in a relationship of proximity compared to the builder. Thence, we can conclude that as long as the acts of the defendants affected the plaintiffs, the defendants are in proximity with the plaintiffs and liable for their negligent actions, even in economic loss cases. 
            Therefore, with the application of this case, we can ensure that the manufacturers and goverment agencies that are in charge with controlling standards of products would do their job in the right manner so as to prevent any negligent damages to the consumers. There would be less problems if we placed a fair responsibilty on the people that are involved in the very root of a matter, i.e., the primary level itself. Thus, if this test were to be used for all negligence cases, it would surely perplex the authorities to create a policy that can be like a wolf in sheep’s clothing, that is a policy that can show some benefits and concern to the public and yet, striking out their liabities for the public.
            Nonetheless, when a case deals with the governments, the governments would usually prevail as they have their statutes that limits or extinguish their liability for their own negligent acts. After all, some matters are not meant for the courts to decide, but for the authority that governs us. This also explains why the courts in Malaysia have discredited the Anns test and favoured the Caparo test.  
            In Jobling v Associated Dairies[3], Lord Wilberforce said, "We do not live in a world governed by the pure common law and its logical rules.No general, logical or universally fair rules can be stated which will cover [all events] in a manner consistent with justice".
Bibliography


1. Case summaries - Anns v Merton London Borough Council. Retrieved from http://www.e-            lawresources.co.uk/cases/Anns-v-Merton-London-Borough-Council.php

2. Existence of a duty.  Retrieved from http://www.ukessays.com/essays/law/existence-of-a-duty.php





[1] [1978] AC 728
[2]  [1972] 1 QB 373
[3]  [1982] AC 794
NOTED THAT THIS TEST WAS LATER BEING OVERRULED BY THE CAPARO V DICKMAN CASE / CAPARO'S TEST..
SOME OF THE WORKS IS DONE VIA GROUP ASSIGNMENT...
SO THANKS TO "THEM".. :)


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