A duty of care arises

As seen occurring for the past decade, the doctrine of duty of care occupies principles that are disproportionate to the importance in tort cases which comes to court. Therefore, where decisions have been appealed and overruled this would affect the whole structure of development of negligence law. Every potential new duty of care allowed has the effect of increasing the numbers of tort cases being brought in the future. This proves that tort plays an important role in society.

As a result of such circumstances, the courts are faced with considerable problems having to decide between doing justice in individual cases or prevent a vast increase in the number of future cases, which are policy reasons1. Therefore, to discover whether duty of care arises when it is reasonably foreseeable, or whether other policy reason would be taken into account to impose such duty, it is necessary to view the development of the law with regards to landmark cases as tort law is largely base on common law rather than statute base.

The aim of the discussion would be towards how the courts create requirements and implications to impose duty of care through the evolving progression of principle ORIGIN OF NEGLIGENCE Negligence is a universal concept in the legal system and is largely concern with compensating people who suffered damage as a result of others' carelessness. But as a ground of liability in itself for causing damage, it was not so common.

Therefore, at one time, although there were numerous instances of liability in negligence, 2there was no connecting principle formulated to provide an overall framework for the huge variety of situations in which liability may arise. For centuries the law has recognized relationships in which one person owes a duty to another. What was lacking was a general principle of which the various cases could apply, and limitation setting the boundaries within which one person could be liable to another for the consequences of careless behavior. Lord Atkin's Neighbour Principle

The modern starting point is in Donoghue v Stevenson [1932]3, where Lord Atkin attempted to lay down a general principle which would cover all the circumstances the courts had already held that there could be liability under negligence. The judgement contained few key elements for the benefit of future cases. Firstly that negligence is a separate ground to claim under tort. Furthermore, lack of privity of contract is irrelevant to mounting an action; therefore the House of Lords recognized a new relationship as giving rise to a duty of care between manufacturers and the ultimate consumers.

This is sometimes called the narrow rule: it still survives but has in practice been superseded by a new kind of liability established in the 4Consumer Protection Act 1987. Previously parties could only bring an action under contract law. Thirdly, 5the test of negligence is established and proved by satisfying that, a duty owed to the claimant is breached by defendant when falling below the standard of care required, and that the damage to the claimant was not too remote a consequence of the breach.

And most importantly, it introduced the 'Neighbour Principle' where duty is imposed if it is reasonably foreseeable that the claimant may be injured as a result of defendant's negligence. The test of foreseeability is objective, that is, if the claimant falls within the category of people to whom a reasonable person could have expected risk of harming them, the test is satisfied. Therefore, a duty of care is owed to another depends upon whether that other is in law a neighbour.

6Lord Atkin described a neighbour as a person: "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. " In the years since 1932, the tort has developed to such an extent that it is clearly now the most important tort. Quantitatively, actions in negligence far exceed those broad for any other tort7.


However, the breath of Lord Atkin's judgement did not receive full acceptance. It is not sufficient that whenever there is foreseeability of harm, the defendant is under a duty to so regulate his conduct so that such harm is not produced. This requirement is too wide which makes it easier for lawyers to argue that there should be liability for negligently causing harm in new situations, not previously covered by case law. A number of restrictions to the neighbour principle have been established by the courts.

In 8Home Office v Dorset Yatch Co [1970], Lord Reid, Morris, and Pearson clearly thought that the neighbour principle had the status of a rule of law, that ought to apply unless there was some "justification or valid explanation" for its exclusion. Lord Diplock, with an attempt to extend the hollowed gap, however, stated that foreseeability was only one element in determining the existence of a duty of care. In deciding whether to recognize a new duty, the court must also look at previous decision by way of comparison and at the policy aspects of the case9.

Therefore, the exception to the neighbour principle makes it clear that the new duty will not be lightly imposed. Lord Wilberforce Two-Stage Test Therefore, after much criticism Lord Atkin's test was simplified by Lord Wilberforce in Anns v Merton L B C [1978] 10 into a two-part test. 11First, whether there is a sufficient relationship of proximity or neighbourhood between defendant and plaintiff so that the former reasonably contemplates that carelessness on his part may damage the latter, and secondly, granted that such proximity exist, whether there are any grounds why, despite that, the law should not impose a duty.

The word "proximity" replaced "foreseeability of harm" in the formulation of the first requirement. The foresight required is that of a reasonable man who is not expected to foresee fantastic possibility. Proximity, however, enables the court to lay down a stricter test than foreseeability where the circumstances of the case required it: 12Ross v Caunters (1980), the defendant held liable for negligent statement as he had the plaintiff in mind when making such report, therefore proximity relationship was established.

13The second part is with regards to policy. 'Policy reasons' simply mean that the judges take into account not just the legal framework, but also whether they believe society would benefit from the existence of a duty. This approach began to be criticized, as the apparent need to find such reasons was said to be holding back development of the law. The appellate courts began applying this test but the House of Lords then began retreating from the implications of the Wilberforce test. This test changed the way the neighbour test was applied.

A long line of cases expressed dissatisfaction with the Anns test as it was always seen as too broad as previously the courts had to justify new areas of liability where there are policy reasons for creating them. With Anns test, the neighbour test of foresight could apply unless there were policy reasons for excluding them. Issues recognized is that firstly, the test creates a general duty based only on proximity thereby it led to great expansion of situations where duties would arise15, and secondly it gives judges too much power to decide on policy alone and furthermore, they are reluctant to justify their policy reasoning.