LAW-NOTES-SHARING-MOMENT (TORT : DUTY OF CARE : NEIGHBOUR PRINCIPLE)
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 : NEIGHBOUR PRINCIPLE
Introduction
There
had been some uncertainties in the application of the right tests to determine
whether duty of care exist in particular circumstances, especially, when it
involves novel cases as the tort law relies primarily on decided cases. Indeed,
there are times when the question of law, i.e., whether the tests established
are adequate and sufficient to sustain justice for the people. In spite of the
confusion and dubiety, the courts have managed to set out clearer guidelines
for evaluating a duty of care, by extracting the vital principles from a medley
of case-law.
Neighbour Principle
‘Duty’
essentially means an obligation or a burden, imposed by law, which requires a
person to conform to a certain standard of conduct.[1]
The issue rose on how to determine the existence of this duty, who should be
responsible and to what extent the duty can be imposed. Thus, the principal
test used to determine the presence of a duty of care is the neighbour
principle.
“The rule that you
are to love your neighbour becomes in law you must not injure your neighbour,
and the lawyers question ‘who is my neighbour receives a restricted reply. You
must take reasonable care to avoid acts and 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[2].”
– Lord Atkin in Donoghue v Stevenson.
The so-called
“neighbour principle” laid down in the case Donoghue v Stevenson provided
the basis and conceptual cornerstone for the development of the law of negligence
in the twentieth century.
In this case, a
friend of the plaintiff had purchased for her a bottle of ginger beer at a
café. The ginger beer bottles were opaque and the plaintiff was unable to see
its contents. When the plaintiff’s friend refilled the glass, along with the
ginger beer came the decomposed remains of a snail. The plaintiff suffered
shock and subsequently became ill. She sued the manufacturer in negligence as
the bottles should be carefully inspected before they were filled with the
drinks. The House of Lords held that the defendants, being the manufacturers of
the ginger beer, owed a duty of care to the plaintiff, as the ultimate consumer
of the drink. This duty was to take reasonable care to ensure that the bottle
did not contain any substance which was likely to cause injury to anyone who
purchases it in due course.
The principle
laid down above by Lord Arkin is important in determining who the neighbour is.
He came to the decision that it 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.[3]
Thus, in order to identify who is the neighbour, we must question : would a
reasonable man, who is in the same circumstances as the defendant, foresee that
his conduct will adversely affect another person or the plaintiff? If the
answer is yes, then a duty should be imposed on that person to be responsible
for his act which injures his neighbour. That is how the word ‘neighbour’ had
been interpreted as a person who is foreseeable to be affected by the negligent
act.
This principle
however need not be applied in all cases as there are also situation in which
the law had denied the duty[4].
For instance, if A did not warn B that his shoe lace was not tied up, he cannot
then be responsible if B fall off and injure himself. You have your own liberty
and conscience as whether to warn that person or not because it is your own choice.
The law will not impose duty on these kinds of situations. The law only
recognizes this neighbour principle as an initial point in determining the
existence of the duty of care in classic and normal situations.
The neighbour
principle therefore opens the door to claims in negligence for injured parties
by recognizing the class of people to whom a duty may be owed. That class of
people includes those who are close enough to be directly affected by the
careless act and that the alleged tortfeasor should have had their interests in
contemplation when acting as he or she did. It is clear that the principle does
not throw open the floodgates to unlimited claims, because a tortfeasor will
not be held to owe a duty of care to those who are not close enough to be in
his or her contemplation at the moment of the tortious act or omission.
In Home
Office v Dorset Yacht Company Ltd[5],
the neighbour principle had been used to ascertain the existence of the duty of
care. In this case, seven Borstal boys had escaped from an island where they
were undergoing training. The escape was due to the negligence of the Borstal
officers who, contrary to orders, were in bed. The escapees caused damage to a
yacht and the owner commenced an action in negligence against the Home Office. It
was held that The Home Officers owed a duty of care for their omission as they
were in a position of control over the third party who caused the damage and it
was foreseeable that harm would result from their
inaction. From the judgment, Lord Reid stated that the principle requires
qualification in new circumstances. The time has come when we can say that it
ought to apply unless there is some justification or valid explanation for its
exclusion.[6]
It is clear that, the neighbour principle had stood as
the sovereign guiding authority in this field of law. However, the title to
this work asks for a discussion as to whether the precedent set in Donoghue
“provides an adequate basis on which to resolve duty of care questions” and the
answer to that question is offered by subsequent judicial decisions on the
issue. The suggestion made by Lord Reid in Home Office v Dorset Yacht had
finally led to the decision made in Anns v London Borough of Merton.[7]
This case had developed a new test as the extension from the Donoghue
known as Ann’s test.
Thanks a lot
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