Negligence - Duty of Care Essay

Words: 3559
Pages: 15


Before 1932 there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations where the courts had decided that a duty should be owed, eg, road accidents, bailments or dangerous goods. In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:

"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
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In recent years the courts have identified a wide range of factors that may be relevant to the denial of a duty of care. For example, a duty of care may not exist where:

(a) The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995).

(b) A duty of care would lead to unduly defensive practices by defendants seeking to avoid claims for negligence with detrimental effects on their performance of some public duty (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v Bedfordshire CC [1995] 3 All ER 353).

(c) Awards of damages against a public authority exercising a public function would have an impact upon the resources available to the authority to perform its duties, both in terms of the damages and costs, and in terms of the resources required to investigate and defend spurious claims (X (minors) v Bedfordshire CC [1995] 3 All ER 353).

(d) A duty of care would cut across a complex statutory framework established by Parliament for regulating particular circumstances, such as the regulation of financial markets (Yuen Kun-yeu v AG of Hong Kong [1987] 2 All ER 705) or the protection of children at risk (X (minors) v Bedfordshire CC [1995] 3 All ER 353).

(e) There is an alternative remedy available to an aggrieved claimant, such as a statutory right of appeal from the decision of a government officer or department, or judicial review, or another source of compensation, such as the criminal