Analysis of The Tort of Law - Assignment Example

Lord Esher put forward the doctrine of foreseeability as follows: “whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger3”.Since the foreseeability test, the tort of negligence developed into the requirements of duty of care, breach of duty and damage.

For example, in Lievre v Gould4 Lord Esher asserted that negligence liability could not be imposed unless the defendant owed the plaintiff a duty of care, a concept that has continued to evolve. The general test for whether or not there is a legal duty of care was established in the case of Donoghue v Stevenson (1932)5. Lord Atkin asserted that a manufacturer owed a legal duty of care to the ultimate consumer of his product. In discussing duty of care as a legal concept, Lord Atkin established the “neighbor” principle.

This duty of care was further developed in the case of Anns v Merton London Borough6 asserted that the proximity test relies on a consideration of the nature of the relationship between the parties. The decision in Anns is arguably the most comprehensive attempt to assert a general principle applicable to the issue of duty of care. Lord Wilberforce commented that “the position has now been reached that 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.

Rather the question has to be approached in two stages. First, one has to ask whether, as between the wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity of neighborhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises.