DONOGHUE v. STEVENSON—THE NOT SO GOLDEN ANNIVERSARY
| Author | Peter Burns,J. C. Smith |
| Date | 01 March 1983 |
| Published date | 01 March 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02511.x |
DONOGHUE
V.
STEVENSON-
THE
NOT
SO
GOLDEN ANNIVERSARY
ON
the 25th anniversary of the decision of the House of Lords in
Donoghue
v.
Stevenson,’
Professor Robert
F.
V.
Heuston concluded his
article in the
Modern
Law
Review,
“
Donoghire
v.
Stevenson
in
Retrospect,” with the statement that
a:
“.
.
.
[Tlhe significance of the neighbour principle has been over-
emphasised by both its supporters and its opponents. It was not
intended to be, and cannot properly be treated as being, a general
formula which
will
explain all conceivable cases of negligence.
Even at a fairly high level of abstraction it needs considerable
qualifications and reservations before it can be accepted. It is
indeed a sign of the poverty
of
thought about the law of torts
in
this country that the proposition should have been called upon
to
bear a weight
so
manifestly greater than
it
could support.
.
.
.”
In the
25
years since that thoughtful piece was written, the
“
neighbour
principle
”
has not merely been over-emphasised, but has been
canonised and made the very foundation of the law of negligence.
Seldom in the history of the common law has a single statement of a
single judge in a single case had such a profound effect on the develop-
ment of the law. It is ironic, therefore, that Lord Atkin probably did
not intend his now famous
“
neighbour principle
”
to be the theoretical
foundation of his judgment. It is almost certainly now being viewed
differently from the way
in
which he meant it to be, and is being given
a meaning that is inconsistent with the rest of his judgment and that of
the other Law Lords in the case.
From
an
historical perspective the
rtrtio
decidendi
of a case can
usefully be viewed in three stages. The first occurs in the period
immediately following the decision, when the case tends
to
be viewed
only
in
the light of its own facts. The second occurs when the case has
been widely followed and applied, and an attempt is made to state the
ratio
in
terms of
a
legal principle that will encompass the cases that have
purported to have followed the initial decision. The third stage begins
when a final court of appeal gives a more or less final and authoritative
formulation of the rule
of
the initial case.
It is proposed here
to
trace briefly the evolution of the principle of
Donoghue
v.
Stevenson
through these three stages, and
to
show that in
the final stage the foundations of liability in the law of negligence have
shifted from that
of
responsibility for the negligent causing
of
harm
to
a
duty to prevent harm. Lord Atkin’s passing analogy to Christian
theology, probably added as a mere rhetorical flourish or by way of
literary licence, has been taken out of context and turned into a
fundamental source of civil ~bligatioh.~ This revised
“
neighbour
[1932]
A.C.
562.
(1957)
20
M.L.R.
1,
23.
Note
I,
above at
p.
580:
“At
present,
I
content myself with pointing
out that
in
147
148
THE
MODERN
LAW
REVIEW
[Vol.
46
principle
”
would be difficult
to
follow as a moral precept. It becomes
intolerable, however, when imposed by law.
To
rephrase an old
aphorism,
“
hard theology makes bad law.” While some of the recent
developments in the law of negligence are, in general, encouraging, the
final formulation
of
the
“
neighbour principle
”
alters the grounds
of
legal liability by transforming the Christian precept
of
loving one’s
neighbour into
a
legal responsibility for one’s fellow man. Thus, the
separation between law and morality, which is essential for the
autonomy of law as a social institution, is being seriously eroded in this
area. What is truly disconcerting, however, is the paucity
of
discussion
in the cases as to the nature and implications of this shift in principle.
Indeed, “the poverty of thought about the law of torts”, which
Professor Heuston decried
25
years ago, is even more evident today.
Causation is llie principal foundation of liability in the law of torts.4
Jn
general, people are held legally responsible for the damage they do
only where there is fault, although in a narrow range
of
cases
of
strict
liability they may be held responsible even without fault. Fault may be
found because of an intention
to
cause harm, or because of negligence-
that is, a failure to maintain a reasonable standard of care in one’s
conduct.
An action fa’r an intentionally caused harm is generally brought
within the confines of a number of nominate torts, such as assault,
battery, false iimprisonment, malicious prosecution, fraudulent mis-
representation and the like. There is an overriding general principle
which explains all of the intentional torts. That principle, stated
by
Wright
J.
in
CVi/kinson
v.
Downton
as the wilful doing of an act
calculated to cause and causing physical harm, is actionable where no
justification can be alleged for the acts6 The principle could be stated
more broadly to cover all the kinds
of
harm recognised by the law. The
class of nominate torts, as actions on the case, is not closed.
If
an
intentionally caused harm does not fit within any of the existing
categories, and there is no good reason to justify the causing
of
the
harm, then the courts may use this general principle
to
generate new
torts, as is exemplified by the case of
Wilkinson
v.
Downton
itself.
English law there must be, and is, some general conception
of
relations giving rise to a
duty
of
care,
of
wlhich the particular cases found in the books are but instances. The
liability
for
negligence, whether you style it such
or
treat it as in other systems as a species
of
‘
culpa,’
is
no doubt based upon a general public sentiment
of
moral wrongdoing
for
which the offender must pay. But acts
or
omissions which any moral code would censure
cannot in a practical1 world be treated
so
as to give a right to every person injured by them
to demand relief.
III
this way rules
of
law arise which limit the range
of
complainants and
the extent
of
their remedy. The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour; and the lawyer’s question, Who is my neighbour?
receives a restricted reply.
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
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
1
am directing my mind to the acts
or
omissions which are called in question.’’
Richard Epstein,
“
ATheoryofStrict Liability
“(1973)
2
JournalofLegalStudies 151.
Eric Mack,
“
Bad Samaritanism and the Causation
of
Harm
”
(1979-80) 9
Philosophy
and
Public
AJairs
230.
[1897]
2
Q.R.
!17,
58-59.
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