Neighbour principle evaluation PDF

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evaluation essay for the neighbour principle deriving from the case of Donoghue v Stevenson...

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Introduction The purpose of this essay is to provide an evaluation on the effects bought in by the case of Donoghue v Stevenson on whether the effects were welcomed. Particularly the ‘neighbour principle’ pronounced by Lord Atkin. In reaching a conclusion, relevant cases and academic opinions will be raised in order to support the evaluation and review on the effects of Donoghue v Stevenson. The case of Donoghue v Stevenson For the purpose of this essay, one will provide for a basic summary of the case of Donoghue v Stevenson. The case of Donoghue v Stevenson concerned a claim where Mrs Donoghue purchased a bottle of ginger beer which her friend paid for. The ginger beer was served in an opaque bottle, when Mrs Donoghue poured out the remainder of the drink, the decomposed remains of a snail floated out which resulted in Mrs Donoghue suffering nervous shock and severe gastro-enteritis. The case reached the House of Lords, where the House was required to determine whether the manufacturer owed the claimant a duty of care where the claimant was not a party of the contract of sale of the drink due to the parties involved were only the friend of the claimant and the café. The issue of the case did not concern the entitlement of compensation for the damages suffered by the claimant, but on whether the claimant had a claim. The House held that the manufactures owed a duty of care to the consumers of their product. And by supplying ginger beer with remains of a decomposing snail in it and causing harm, the manufacturer had breached their duty of care owed towards the

consumer. Additionally, Lord Atkin in the case introduced the ‘neighbour principle’ in his statement where he laid down a general criteria where a duty of care will exist: ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ The ‘neighbour’ in the statement of Lord Atkin refers to ‘persons who are 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.’ Therefore it could be seen that the principle pronounced by Lord Atkin contained two elements: 1) Reasonable foreseeability; and 2) Proximity. In relation to the first element, it is a limb which is objective in nature. This is a question to be answered by the courts, where the court is required to determine whether a reasonable person who was in the position of the defendant, could have foreseen the consequences of the act. In relation to the element of proximity, it must be shown that there is a high degree of proximity between the claimant and the defendant, Lord Atkin provides that ‘proximity’ does not refer to physical proximity but in the sense of closeness and directness of the relationship between the claimant and the defendant.

Impact of the statement of Lord Atkin Before one looks at the impact of the pronouncement of the neighbour principle, it is required to look at the position of law prior to the case of Donoghue v Stevenson. Prior to 1932, duty of care is only limited to very particular circumstances where the courts deem that duty should be owed. Therefore it could be seen that prior to the case of Donoghue v Stevenson, the law was dependant on precedents set out by the courts. Therefore the pronouncement of the ‘neighbour principle’ by Lord Atkin in his dicta as identified by Franco Ferrari in ‘Donoghue v Stevenson’s 60 th Anniversary’ has ‘widened the scope of application of the principles of the tort of negligence… in freeing the possibility ‘to prove one’s case’ from its dependence on a precedent.’ Therefore since the case of Donoghue v Stevenson, where the neighbour principle was pronounced, and the starting point in the tort of negligence case is no longer limited by precedents, but by the neighbour principle. Therefore allowing liability to arise in whole range of situations if the elements in the neighbour principle as explained above are satisfied, and thus it was identified by Lord Macmillan in the same case ‘the categories of negligence are never closed.’ Evaluation on the effect bought in by the ‘neighbour principle’. In this part of essay, one will provide an evaluation on the ‘neighbour principle’ in order to determine whether it was welcomed by the litigants of England and Wales. In this evaluation, one will address the dissenting judgement of Lord Buckmaster in the same 1932 case. Lord Buckmaster’s statement is as followed:

‘In Mullin v. Barr & Co, a case indistinguishable from the present, excepting upon the ground that a mouse is not a snail, and necessarily adopted by the Second Division in their judgment, Lord Anderson says this, “In a case like the present where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.’ His Lordship in his statement provided a logical consequence of imposing duty on the manufacturers of the product would lead to manufacturing businesses to be open to claims from all consumers of the product, which is socially and economically unacceptable. Lord Buckmaster in his statement has impliedly expressed his fear of floodgates of claim if the appeal was allowed. Indeed the ‘neighbour principle’ pronounced by Lord Atkin was made without taking into account of policy factors such as potential result of floodgates, as widening the scope of application of the tort of negligence opened up more possibilities for the public to bring an action on circumstances which previously have been limited to the courts. However as provided by Edelman J in his speech ‘Fundamental Errors in Donoghue v Stevenson’ that it is possible that Lord Atkin himself never comprehended that a few sentences of obiter dicta could have had such widespread and sweeping effect. Therefore the failure of Lord Atkin to take into account of policy factor such as floodgates of cases as addressed by Lord Buckmaster in his dissenting judgement is clear as the neighbour principle as explained above has ‘widened the scope of

application of the principles of the tort of negligence’ thus allowing claimants to bring in a course of action against those who might have acted in a negligent manner. However, despite the fact that the principle has failed to take into account of the policy factors such as potential flood gates, its importance cannot be undermined. The importance of the case of Donoghue v Stevenson to the law of tort and even civil law system as a whole is threefold : 1) It has encouraged the public to bring an action to court on cases which previously been limited by precedents. Therefore upholding the fundamental aims of the law of tort, namely the aim to compensate those who suffered a loss and to allocate the responsibility for the loss suffered by the claimant. This point will be further expanded in the next point; 2) As expanded from the previous point, by encouraging the public to resolve their issues in the court further reaffirm the position of the judiciary as a governmental body which its role is to settle disputes; and lastly 3) The neighbour principle announced by Lord Atkin has provided a set of framework for future development and expansion by the courts and that the development of law should not be limited as shown in the position prior to 1932. Therefore despite of the flaws in the neighbour principle, it has proved to be the foundation of the law of negligence and as provided by Linden, the case of Donoghue v Stevenson ‘can and does provide a magnificent vehicle to enable us to discuss what is acceptable and proper conduct and what is unacceptable and improper conduct…’ and in answering the question in the introduction, the pronouncement of neighbour principle was clearly welcomed by the litigants despite of its failure to take into account of the

policy factors, as it has widened the application of the tort of negligence unlike its position prior to 1932. Conclusion Thus in conclusion, the answer in the introduction is to be answered in an affirmative despite the flaws in the neighbour principle due to the revolutionary effect of the neighbour principle to the area of tort and even the civil law system as a whole....