THE DUTY OF CARE IN NEGLIGENCE: RECENTLY EXPRESSED POLICY ELEMENTS—PART I
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02337.x |
| Date | 01 July 1971 |
| Author | C. R. Symmons |
| Published date | 01 July 1971 |
THE
DUTY
OF
CARE IN NEGLIGENCE:
RECENTLY EXPRESSED POLICY
ELEMENTS-PART
I
IN
retrospect, until as recently as the
1060s,
it might be said with-
out eontroversy that Lord Atkin’s
“
neighbour
”
test in
Donbghue
v.
Stevenson,l
based
as
it
is
on
reasonable foreseeability, hets
been used by the courts of this country as a convenient facade
behind which they could extend,
or
restrict extension of, the exisit-
ing categories of negligence, which, as we have been judicially
reminded,
(‘
are never closed.” Consequently, in creating
“
notional
”
duties of care in novel
‘‘
situation-patterns
”
‘
in
the
past, the courts have been accused of concealing the true judicial
process by their reticence in articulating underlying policy con-
siderations and their almost inevitable resort to the vague and
facile test of reasonable foreseeability to determine this highly
important issue.5
Within the last ten years, however, almost dramatically, English
courts seem to have taken the cue
from
their Commonwealth
counterparts and begun openly
to
analyse and discuss policy
elements in such cases. The importance of such a breakthrough
from the semantics of the reasonable foreseeability test of duty
is
well summarised by Professor Heuston:
“
There is,” he sayai,
‘‘
nothing to be lost and much to be gained by a statement of
factors’ which have influenced the decision
in
any particular case.
In
such a way the task of the court in any further case of novelty
is made easier.”
‘
1
[1982] A.C. 562. Close scrutiny
of
the judgments
of
Lords Macmillan
and
Atkin reveal that policy elements played
a
part
in their decisions;
e.g.
Lord
Atkin considered that the,, problem of the, snail-polluted ginger beer had nn
important bearing
upon
public health
(p.
579) and that the consumcz
would not be able
to
rely
on
any warranty
of
fitness in contract if he were
not
the purchaser
of
the couynodity (p.
582).
Thus
he concluded that there was
“obviously
a
social wrong (p.
583).
See
Stone,
Proaince
and
Function
of
the
Law
(1947) at
p.
567, and
Street
on
Torts
(4th ed.,
1968)
at
p.
104.
2
Zbid.
at
p.
619
(per
Lord Macrnillan).
3
See Dias,
“The
Duty Problem in Negligence” [1955] C.L.J. 198,
202.
4
The
term
used by MacDonald
J.
in
Nooa
Mink
Ltd.
v.
T.C.A.
[1951] 2
D.L.R.
241,
256.
5
See
Street
on
Torts
(4th ed.)
at
p. 106, and most recently Urd Diplock in
The
Home
Office
v.
Dossef.
Yacht
Co.
[1970] 2 All E.R. 294,
324:
I‘
This [poliqp]
function, which judges hesitate
to
acltnowledge
as
law-making, plays at moat
a
minor role in the decision
of
the great majority
of
oases,
and llttla consciouis
thought has been given
ta
amlysing
its
methodology. Outstanding exceptionis
are
to
be
found
iu
the speeches
of
Lord Atkin in
Domghue
V.
Stevenson
and
of
Lord
Devlin
in
Hedley
Byme
d
Co.
Ltd.
v.
Heller.”
6
“
Donoghue
v.
Steaenson
in Retrosped
”
(1957)
20
M.L.R.
1,
24.
A
similar
plea
is
made by
Leon
Green who asks
why
a
court should
mask its
decision
in
a94
JL.I.F
1971
THE
DUTY
OF
CARE
IN
NEGLIGENCE
895
The landmark in this process of change can be seen quite dis-
tinctly in the momentous House of Lords decision in
IIedley Byrne
S;
Co.
Ltd.
v.
IZeller and Partne.rs
Ltd.,'
concerning the existence
and scope of the duty
owed
by the maker of a negligent misstate-
ment. In that case it is Lord Pearce who most eloquently explains
the basic twofold policy element which has seemingly in the past
militated against the imposition of a duty of care in
a
situation
where financial
loss
has ensued from the misstatement,
viz.
the
traditional reluctance of the judiciary to remedy financial
or
economic loss simpliciter in tort,s and the agency
of
the loss being
words, not d~eds.~ In
so
doing Lord Pearce drives a very large nail
into the coffin of reasonable foresight when he frankly declares
that the width
of
the sphere
of
duty of care in negligence
"
depends
ultimately on the courts' assessment
of
the demands of society
from the carelessness of others."
lo
If
one then examines the intriguing case of
Rondel
v.
Wo~rsley,"
the phrase
"
public policy
"
or
"
public interest
"
is found to be
one that passes the lips of every judge from Lawton
J.
at first
instance to those
of
the members
of
the House
of
Lords, as the
explanation of the immunity
of
a barrister, if not
also
a solicitor
acting
as
advocate, in respect of negligent court work. At no
stage
of
the proceedings is there any reference
to
Donoghue
v.
Stevenson
or
the neighbour principle based on reasonable foresee-
ability.
More recently in the Court
of
Appeal, Lord Denning cites Lord
Pearce's
"
demands of society
"
dictum from
Hedley By,me
with
approval in
Dorset Yacht
Co.
Ltd.
V.
Home
Ofice
l2
and, in con-
sidering whether the Home Ofice owes a duty of care for damage
lcgal doctrine when there
are
undcrstandable policy considerations at hand
:
"Dry doct,rine of
a
very
poor
quality obscures the
good
sense
;f
the
con-
clusions,"
he
claims; see
''
Tort.
I~aw
Public Law
in
Disguise (1959)
38
Texas
L.R.
1,
6.
T'his point is reitersted
,Py
A.
IvI.
Linden in his recent article
in (1969)
47
Can.Bar
Rev.
515
entitled
He
maintains at
p.
571
that
in
some cases
"
t,he foreseeability doctrine aotually
renders
11s
a
disservice
by
confusing the judge and diverting his attention from
what
he should
be
considering.''
7
[1963]
2
A11
E.R.
578.
8
L1963]
2
A11
E.R.
57.5, 615
("
Economic
loss
113s
lagged behiud protection
in
Down with Foreseeability1
I
"
physical matters
.
.
.").
9
Ibid.
at
p.
614
("
If
the mere hearing or reading
of
words were
held
to
oreate
proximity, there might be
no
limit to the persons
to
whom the speaker or writer
could
be
liable
").
10
Ibid.
at
p.
615
:
cf.
dictum
of
Jacobs
J.A.
in the A!!stralian oase
of
Rooks
v.
Shelto~t
(1966)
86
W.N.
(Pt.
1)
(N.S.W.)
94.
101:
.
.
.
when one armroaches
a
new field of liability in negli&mce perhaps the
most
important fk'ature in
the designing of the rril'e
of
law
appropria.te to that field
of
linbilitv is the
consequence in society
of
the proposed
rule.
It
may
be held that this"is not
a
legal
approach, but it must be accepted that this is the way the law
has
developed in
,the
past
and
to
deny snch an approach is
to
observe
a
formality
which serves only to
conceal
the real factors lying behind the particular
decision.
"
11
[l9GG]
._
-
1
-411
E.R.
467; [1966]
3
All
E.R.
657 ((3.~1.);
[l967]
3
:ill
E.R.
893
(1%.
L
.
)
.
[19ti9]
2
A11
E.R.
5Gi,
567.
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