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Donoghue v Stevenson laid the foundations of the law of negligence to
establish negligence, The plaintiff with a friend went to café and had some drinks. The plaintiff ordered a ginger beer. Which was served in an opaque bottle. As the defendant poured the drink it was later discovered that there was a decomposing snail inside the bottle. This caused the defendant shock and later medical complications. She sued the defendants for damages. During the time remedies for damages in defective product would be an action in contract which was not available to Donoghue as she was not party to the contract. The plaintiff later appealed to the House of Lords which held that manufacturers owed a duty of care to the end consumer of their products. Court further held that the claimant must prove 3 elements to amount to negligence namely; a duty of care is owed by the defendant to the claimant, breach of that duty by the defendant and damage as a result of the breach, which is not too remote.
The case led to the development of the neighbour principle which is
used as a test for the existence of a duty of care. Lord Atkin defined a neighbor as not a person who you live next to but rather a person who you owe a duty of care or who would be directly affected by your acts or omissions you must contemplate how your actions would affect a person who you owed. A duty of care must be applied, manufacturers owe a duty of care to consumers in respect of the goods which they provide to ensure that they do not threaten health or safety.
Another test used in the determination of duty care is the Caparo test, which is the basic test of duty of care applies to cases of physical injury and damage to property. The Caparo test also known as the 3 stage test came from the case of Caparo Industries plc v Dickman3 . The court asks 3 questions, although some may overlap and thus it is not always applied as a three step process. The first is to consider whether the consequences of the defendant’s act were reasonably foreseeable(foresight), the second is to ask whether there is a relationship of proximity between the parties, and third is to consider whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other. Below are 3 stages
Foresight in Donoghue v Stevenson, the notion of foresight of the
claimant as a member of a group who is likely to suffer harm as a result of the defendant’s acts or omissions is notionally of importance as a deciding factor for liability. However, although it is possible to find cases in which it is argued purely on the question of foresight that a duty of care exists, it is too simplistic to suggest that foresight or ‘reasonable contemplation of harm’ alone is the test for the existence of a duty of care. In Marc Rich & Co v Bishop Rock Marine Co Ltd4 , the House of Lords took the view that, whatever the nature of the harm, the court should consider foresight, proximity and whether in all the circumstances it is fair, just and reasonable to impose a duty of care. It is still possible to find decisions today which are arrived at by using the simple test of reasonable foresight. For example, in Margereson v JW Roberts Hancock v J W Roberts Ltd5 it was held that the owner of an asbestos factory should reasonably have foreseen that children who played near the factory might develop pulmonary injury through dust contamination. Topp V London Country Bus (993) 1 WLR 976, where the defendant bus company left a mini bus in a parking lot overnight, with the keys still in the van, without locking it. This bus was stolen and while the thieves were driving off, they knocked a woman off her bicycle killing her instantly. Her husband brought an action in negligence against the defendant to recover damages. Court held that the bus company did not owe a duty of care for the actions of the third party. Thus it was not foreseeable that thieves would take the bus and knock a woman riding her bicycle to death.
The second stage is based on whether there is a relationship of
proximity between the defendant and the claimant. This does not dictate that there must be physical proximity between claimant and defendant, but rather that there must be a connection between the two. An example of proximity (or, rather, a lack of proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police [1991] 4members of the general public coming across the aftermath of the Hillsborough disaster and suffering nervous shock as a result were held to not be owed a duty of care by the defendants, because the link between the defendants and claimants was held to be too distant.Proximity Closely related to foresight is the notion of ‘proximity’. This concept was considered in Donoghue v Stevenson itself and was mentioned in the early cases on negligence. In some cases, proximity has become a more important consideration than foresight as a device for controlling the existence and scope of duty of care in personal injury cases. In Yuen Kun Yeu v AG of Hong Kong6 , Lord Keith referred to proximity as a synonym for foreseeability on the one hand, and on the other as referring to the whole concept of the relationship between the claimant and the defendant as described in Donoghue v Stevenson by Lord Atkin. Proximity plays an important part in the reasoning in many of the cases concerning the extent of liability for economic loss caused by negligent misstatement. It has also been regarded as important in relation to the scope of duty of care in omissions rather than positive acts. In effect, the concept is but one of the factors which may apply in the process of judicial reasoning, whereby judges are enabled to arrive at the decisions which they believe to be just in individual cases. What is fair, just and reasonable
