Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

Chapter 11 The Tort of Negligence 343
was the manufacturer of the beer. The claimant could not sue the defendant in the law of
contract as there was no contract between them.
Decision: Every person owed a duty of care to his neighbour, who was somebody that a
person could reasonably foresee would be injured by his acts or omissions. The defendant
could reasonably foresee that someone, other than the purchaser, would drink the ginger beer
and, therefore, owed a duty of care to the ultimate consumer. The neighbour principle was laid
down by Lord Atkin who said:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who then 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 I am directing my mind to the acts
or omissions which are called in question.
Although the neighbour principle had the potential of being applied in numerous circumstances,
the development of the new tort of negligence was very cautious to begin
with. However, in the 1970s and early 1980s the scope of the duty of care was expanded
by the courts, and it appeared that a duty of care could be owed for any reasonably
foreseeable negligently-inflicted loss, unless there were policy reasons against imposing
a duty.
Policy reasons means that, when making a decision, a court should take into account
the implications the decision will have for law in society. Factors that influence judges
include:
• Which party is best able to afford the loss? Is one of the parties insured?
• Will there be flood of claims? If a duty is imposed will the number of potential claimants
be huge?
• Will imposing a duty encourage people to take more care in certain circumstances?
• Are there moral reasons for imposing a duty?
The Three-Stage Test
The rapid expansion of persons owing a duty of care to others came to an end in the late
1980s. Senior judges clearly became worried that the tort of negligence could get out of
control and sought to check its growth. A more cautious approach to the development of
the duty of care was taken. Unless a duty of care had already been firmly established by
previous cases, such as a duty owed by manufacturers to consumers, vehicle-drivers to
passengers, or employers to their employees, then a three-stage test had to be satisfied.
The three-stage test to determine whether a duty of care exists was set out by the House
of Lords in Caparo v Dickman (1990).