The Principle of Foreseeability and Proximity by Lord Atkin - Essay Example

The existence of a duty situation or a duty to take care is thus essential before a person can be held liable in negligence. The question of existence of a duty situation in a given case is decided on the basis of existing precedents covering similar situation; but it is now accepted that new duty situations can be recognized. A privilege or liberty of yesterday may become a duty today for the law of negligence is consistently influenced and transformed by social, economic and political considerations. The general principle of forseability ad proximity applicable in solving cases presenting the existence or otherwise of a new duty situation was laid down by LORD ATKIN in the celebrated case of Donoghue V. Stevenson (1932 Ac 562 (HL) in the following words. “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in contemplations as being so affected when I am directing my mind to the acts or omissions which are called in question”: (ibid). The neighbour test The courts have always taken that view that a careless person should not have to compensate all the people who suffer as a result of his conduct. This can be achieved by considering two issues. i) Sufficient relationship of proximity between the plaintiff and the defendant. ii) The police reason for negating or reducing the class of personas so that the duty is owned. Proximity does not mean physical proximity it is based on reasonable forseability and is generally known as neighbour test. The first case to establish this principle is Donoghue V. Stevenson (1932) stated above. The neighbour test has been applied in numerous cases since 1932. In king V. Philliphs (1952), (K. Abbott, K. Wardley, B. Law 2001 taxi over a boy’s cycle. The boy who was not on the bicycle, screamed. This mother (P) heard the scream and on looking out of the window saw the crushed bicycle but not her son. As a result she suffered shock which made her ill. She failed in her action against D because it was held that a driver could only reasonably foresee that his carelessness would affect other road users and not persons in houses. He did not therefore owe a duty of care to P. In Tutton V. Wather (1985) (Ibid) P kept bees on land near D’s form D had a crop of oil seed rape which, when in flower, is particularly, attractive to bees. Despite clear written instructions to the contrary, D sprayed his crop while it was in flower, with a pesticide that was total to bees. His defense to P’s action was that no duty was owed because he was doing on his own land something that he was entitled to, and that the bees came on the land without permission and were basically trespassers, the judge did not accept these arguments. It was held that the duty was owed under the neighbour principle and it had been broken. P therefore received compensation for the loss of his bee colony. The principle of forseability and proximity as laid down by lord ATKIN was again affirmed in Home office V. Dorset Yacht Co. Ltd. (Justice, P. Singh, how of farts 23rd edition) in which case some borstal trainees escaped one night due to the negligence of the Borstal officers who contrary to orders were in bed. The trainees caused damage to a yacht, the owner of which sued the home office for damages. A preliminary issue was raised whether on the facts pleaded, the home office or its servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the borstal trainees ought to have been for seen by the Borstal officers as likely to occur if they failed to exercise proper control and supervision and therefore the officers’ prima facie owed a duty of care to the owner of the yacht. In holding so lord Reid observed. “There has been a steady trend towards the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognized principles apply to H. Donoghue V. Stevenson that well known passage in lord Atkin’s speech should, I think be regarded as a statement of principle. In certain situations the courts will not apply the neighbour test without qualifications. The main areas concern negligent statements, economic loss and nervous shocks as considered below. Economic loss. a) When a negligent conduct causes economic loss (i.e. financial loss that is not consequential upon physical injury to person or property) the courts have been generally unwilling to hold that a duty of care exists. In Muirhead V. industrial Tank specialists (1986) (K. Abbort, K. Wardman, Business law) P. Established a lobster farm. He intended to purchase lobsters cheaply in the summery keep them alive until Christmas, and then sell them at a higher price. A constant supply of circulating sea water was needed to keep the lobsters alive. He installed the necessary tanks and pumps. Unfortunately the pump motor (supplied by French firm) could not cope with the fluctuations in English voltage and a large number of lobsters were last as a result of a pump failure. P damed compensation for the loss of lobsters and loss off potential profit. It was held that he could recover for the loss of the lobsters and any financial loss suffered in direct consequence, but could not recover for any loss of profit. b) Numerous economic loss cases have concerned the liability of persons involved in the design, approval and construction of buildings. The position was reviewed by the House of Lords. This can be illustrated by Murphy V. Brentweed District council (1990) (Ibid) where it was held the loss suffered was purely economic (not physical) and was not therefore within the scope of the duty of care owed by D top. They made it clear that the right to recover for pure economic loss, not flowing from physical injury, must be determined by the principle in Herdley Byrme V. Heller (1964) Ac 465 (HL) where lord pearce said. “How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the count’s assessment of the demands of society for protection from the carelessness of others” (G.P slugh, J, law of Torts). Bibliography 1. (G.P Singh, J, law of Torts),6th Edition,2002 2. . (K. Abbort, K. Wardman, Business law) 3. www.law.cornell.edu/topics/torts 4. ne.wikipedia.org 5. www.amazon.com/Law-Torts 6. www.questia.com 7. J.P.Agarwal,5th editon,Central Law Agency 8. Dr.P.N.Gautum,Tort Law, Central Law Agency.2001 edition. Read More