Neighbour Princ. & Foresight in Tort Negligence.

Lord Atkin'sneighbour principle was a formula for imposing on defendar liability for the foreseeable. Even foresght remain the criterion for liability in the tort of negligence.

Critically evaluate this statement.

The Elements of Negligence

The tort of negligence is a main topic which has significant relevance in the modern law system. It is referred to a legal wrong which is committed by a person by failing to comply with his/her legal duties. These duties are imposed by the law and they are considered as reasonable to impose on the person acting in the specific position (Luntz et al., 2017). A third party suffered a loss or detriment due to the violation of the duties. The risks which are suffered by the third party must be foreseeable risk in order to file a suit in the tort of negligence. There are certain elements of negligence which are necessary to be determined by the court while providing a judgement in the suit for negligence. The elements which are applied in the modern cases of negligence were given in the judgement of Donoghue v Stevenson [1932] AC 562 case. This is a landmark judgement in which the court established key element of the tort of negligence. In this case, Lord Atkin provided a neighbour test which was a formula which can be used by the court to impose the liability on defendant for the foreseeability. In modern tort law, foresight is still a major criterion which is evaluated by the court while imposing a liability on the defendant (Ferry, 2012). This paper will evaluate the role of foresight in the neighbour principle to determine how it is a key element in modern negligence law. Various cases will be evaluated to understand the importance of the neighbour test and foresight while imposing a liability in the case of negligence.

The judgement of the Donoghue v Stevenson case is relevant in order to understand the key elements which are necessary to be present while filing a successful suit for negligence. The facts of this case were that the claimant went to a café in which she ordered a ginger beer. The beer was severed in an opaque bottle in which inside contains were not visible. Due to the fault of the defendant who was the manager of the café, the remains of a dead snail were present in that bottle (Martin, 2014). After drinking the beer, the claimant suffered serious personal injury due to illness. She filed a suit against the café owner in order to recover for the damages which she suffered. The claim made by the claimant was successful and it was accepted by the House of Lords. In this case, the court established the principle of modern law of negligence and provided the judgement in the favour of the claimant based on the neighbour test. This test was a major fact based on which a liability was imposed on the café owner (Stychin, 2012). The key elements of negligence include a duty of care, breach of such data, causation and remoteness of damages.

The Neighbour Test

A duty of care is referred to a legal obligation which is imposed on a party. This obligation enforces the party to take certain actions or avoid taking certain actions to ensure that third parties did not suffer any damages. This is a significant element of negligence because a person who did not owe a duty of care cannot be held liable under the suit for negligence (Barravecchio, 2013). Therefore, the court firstly evaluate whether or not a duty was owed by the defendant or not in the case of negligence. While determining this element, the court applies the neighbour test which was given by Lord Atkin. The neighbour test is used by the parties to determine the existence of a duty in order to hold a person liable for the injuries suffered by another party based on negligence. Lord Atkin provided that this rule is based on the fact that you should love your neighbour and must avoid injuring your neighbour. This rule imposes a duty on parties to ensure that they maintain a reasonable care in order to avoid any acts or omissions which would likely to cause an injury to the neighbour (Greene, 2013). Thus, the requirements of the neighbour test are divided into two parts. The first part provides that there must be a reasonable foresight of harm and the second part provides that there must be a relationship of proximity.

In order to apply the first principle, the judgment of the Court of Appeal given in Topp v London Country Bus [1993] 1 WLR 976 is important. In this case, a bus was stolen by a theft from the bus company due to the fault of the driver and the thief struck and killed a woman on the road. Her husband filed a suit for negligence against the bus company. The court rejected the application based on the element of neighbour test. It was held that a duty of care was not owed to the third party because the risks were not foreseeable (Dyson, 2015). This judgement shows that foresight of the risks is relevant in the modern law of negligence while imposing a penalty on the defendant. Another good example was given in the case of Home Office v Dorset Yacht Co Ltd [1970] AC 1004. In this case, some young defenders were supervised by the Home Office and those defenders were left unsupervised one night due to which they escaped and stole a boat and collide it with a yacht. The claimant who was the owner of the yacht filed a suit for negligence against the Home Office. The House of Lords accepted the application of the claimant based on the rule of neighbour test (Stephenson, 2012). It was held that the risks were foreseeable and the duty was breached due to omission of the defendant based on which a liability can be imposed.

Foresight as a Key Element in Negligence Law

Another element of the neighbour test is proximity in the relationship of the parties. Without a close relationship, a duty of care cannot be imposed under the neighbour test on a party. This was illustrated by the court in the case of Bourhill v Young [1943] AC 92. In this case, the claimant was a pregnant fishwife who was in the market when the defendant drove his motorcycle near her and collided with a car which was 50 feet away from the claimant. The claimant did not see the accident; therefore, she walked past to the scene where she saw a lot of blood on the road. She went into shock and her child was still born (Butler, 2018). She filed a suit against the defendant under a suit for negligence. The court provides its judgement based on the neighbour test in which it was held that no duty was owed by the defendant. Both the parties were not in a proximity relationship based on which the risk were not foreseeable, thus, the defendant cannot be held liable for negligence.

Since the judgement of Donoghue v Stevenson case, the rule of the neighbour test has taken in its wider sense by applying to a diverse range of situations. This is a reliable rule which is used by the court to determine the duty of a party. However, since its introduction, subsequent cases have narrowed down the implementation of this rule to cases where the consumer was suing the manufacturer. However, this view was changed by Lord Wilberforce in the judgement of Anns v Merton London Borough Council [1978] AC 728 case. In this case, Lord Wilberforce sought to resurrect the neighbour test by embracing its application on a wider range of cases to determine the duty of care (Cornford, 2016). He provided that the test should be two staged. The first stage provides that the court must examine whether the party who has suffered a loss was foreseeable or not and whether a proximity relationship exists between the parties. The presence of these two elements imposed prima facie duty of care on the parties. Lord Wilberforce further added that the defendant may put forward policy considerations to negate liability (Randell, 2014). This resulted in increasing the application of the neighbour test on a wider range of cases in which the court can determine whether a duty is imposed on the party or not.

In conclusion, the neighbour test rule which was given by Lord Atkin is still relevant in the modern negligence law to determine whether a party owes a duty of care or not. This tool is divided into two parts which include reasonable foreseeability of risks and proximity relationship. It shows that foresight is a major element which is evaluated by the court while imposing the duty on a party. If these two elements are present, then the court imposed a duty on the defendant. After determining whether the defendant owes a duty of care based on the rule of the neighbour test, the court determines whether such duty is violated by the party which resulted in causing harm to the third party. Therefore, the neighbour principle formula is still relevant in the modern negligence law which shows that foresight remains the criterion for liability in a suit for negligence.

References

Adams v Lindsell (1818) 106 ER 250

Anns v Merton London Borough Council [1978] AC 728

Barravecchio, J.A., 2013. The tort of negligence. Legaldate, 25(4), p.4.

Bourhill v Young [1943] AC 92

Brogden v. Metropolitan Railway Co. (1877) 2 App. Cas. 666

Butler, D., 2018. Employer liability for workplace Trauma. Abingdon: Routledge.

Carter, J.W., 2013. The Construction of Commercial Contracts. UK: Bloomsbury Publishing.

Chappell v Nestle [1960] AC 87

Chen-Wishart, M., 2012. Contract law. Oxford: Oxford University Press.

Cornford, T., 2016. Towards a public law of tort. Abingdon: Routledge.

Donoghue v Stevenson [1932] AC 562