The fact in Donoghue V. Stevenson was that the appellant drank a ginger beer that was bought by her friend in a café and she drank part of it from her cup. Her friend poured the rest and a decomposed snail was seen floating on the ginger beer. The nauseating sight coupled with the fact that the appellant had drank from it caused her shock and severe gastro-enteritis. She brought an action and the issue before the court was whether the manufacturer of an article of drink sold by him to distributor in the circumstances which prevent the customer/consumer from discovering by inspection any defect was under any legal duty to the customer/consumer.
In searching for a principle of law, Lord Atkin used the comparative simplicity rule stating that the court should sought the duty which is common to all the cases where liability was established and base it on logical element common to the cases where it was found to exist.
Lord Atkin reinstated the general test for damages for negligence to be that the applicant must show that he had been injured by breach of duty owed by the defendant to take reasonable care to avoid such injury. This duty arises in circumstances where there was proximity and the defendant could reasonably foresee that the plaintiff would be affected by his negligence.
Lord Atkin’s ‘foresee-ability’ test was based on the premise that people are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omission which are called in question. These were the principles that was common to all the cases decided and which Lord Atkins considered.
In Le Lievre V. Gould and Heaven V. Pender, the courts held that there was a duty to take reasonable care to another even in the absence of contract, where there is proximity to other person or that other person’s goods that he ought not to cause injury. This usually occur where A was so close to B or B’s goods that he ought to take reasonable care not to cause injury to B or B’s goods.
These same simple rules was evinced in the judgment of the court in the case of George V. Skivington, where the court held that there was a duty on the manufacturer to exercise reasonable care to the purchasers.
It can be deduced that the duty of care exist where there is proximity or where it can be shown that the defendant can reasonable know that the plaintiff would suffer injuries by his failure to take reasonable care.
The test laid down in the Donoghue’s case was that a liability in negligence for breach of duty of care would suffice if there was proximity between the defendant’s action and the injuries was cause as a result of failure to take reasonable care.
In Phelps V. London Borough of Hillingdon; Anderton V. Clwyd County council; Jarvis V. Hampshire County council; Re G (a minor), the first case involved claim for negligence. The claimant who suffered from disability claimed that due to the failure of the defendant to provide adequate tuition and treatment he suffered injuries.
In the second and third cases, the claimants who suffered from dyslexia claimed injuries as a result of their local education authorities’ inability to provide suitable educational provisions. In the fourth claim, the claimant who suffered muscular dystrophy claimed that the defendant failed to provide him with the adequate training facilities to enable him to communicate appropriately with others.
The HL held that persons exercising a particular skill may owe a duty of care and the fact that they are employed by the defendants to satisfy statutory obligations does not mean that no duty of care is required in the performance of their duty.
Accordingly, failures by educational psychologists, failure to diagnose a congenital condition and to take appropriate action was damage for the purpose of the common law and although questions of causation and quantum might be very difficult, there was no reason in principle to rule out such claims.
The decision of the House of Lords in this case reflects the principle of proximity and reasonable care of the case of Donoghue V. Stevenson to award remedy for injuries that arise out of failure to take reasonable care.
Also in Large V. Waldron, the claimant claimed negligence for reasons of failure of the defendant’s general practitioner to properly diagnose him and refer him to hospital when he had developed septicaemia and meningitis as an infant. The court held that the defendant failed in their duty of care and upheld the claimant’s claim.
However, in light of recent decisions, the court seems to have departed from this comparative simplicity test that prevails in an action in negligence. In Van Colle V. Chief Constable of Hertfordshire, Smith V. Chief Constable of Essex, The case involves two victims (G & S). G was murdered days before he testified as a witness in the trial of B. There had been threats and incidence of witness intimidation before the murder.
In S case, he had complained that his former partner (P) had threatened to kill him. The police had sufficient evidence to arrest P but failed to do so. While the matter remained under investigation, P caused severe injuries to the person of S using a claw-hammer.
The claim in G’s case was brought under the article 2 of the European Convention on Human Rights 1950. The test that the court had to satisfy is that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal act of the third party and they fail to take reasonable measures within their powers to avoid the risk, then their obligation under the convention is breached. The court held that that in this case, from the information available to the police they would not have anticipated that B constituted a risk to G.
In S case, the action was on the tort of negligence. If one applies the test of Lord Atkin to this fact, the first issue will be to decide whether failure of police to act would amount to breach of duty of care where there is proximity between the defendant’s action and the injuries caused as a result of failure to take reasonable care by acting on the complaint.
There is no doubt that failure to act can amount to negligence if the defendant could reasonable foresee that his inaction may cause injuries to the plaintiff or the plaintiff’s property.
However, in this case, the court failed to imply negligence in the police inaction and held that in the absence of special circumstances, the police owed no common law duty to protect individuals against harm caused by criminals.
The introduction of a special circumstances clause to avoid liability clearly departs from the comparative test articulated by Lord Atkin in Donoghue V Stevenson. It suggests that the courts are limiting the necessary implication of the Donoghue’s test.
In Hill V. Chief Constable of West Yorkshire, the case involved the murder of the plaintiff’s daughter within the area where the defendant was the chief constable. The murderer was convicted murder. The said murderer had attacked and murdered series of other females in the area in the previous years under the same circumstances.
The plaintiff claimed on behalf of his deceased daughter estate remedies against the defendant in conduct of investigations into crime and for failure to apprehend the murderer and thus prevent the murder of his daughter.
The court dismissed the claimant’s claim and appeal for not disclosing any cause of action. The court held that there was no general duty of care owed by them (police) to identify or apprehend an unknown criminal, nor did they owe a duty of care to individual members of the public who might suffer injury through the criminal’s activities save where their failure to apprehend him had created an exceptional added risk.
Notwithstanding, the court acknowledged that although it was reasonably foreseen that the said murderer was likely to attack female member of the public if not arrested but this does not in itself make the plaintiff’s daughter at risk more than other members of the public.
The exceptional circumstances in this case would occur where proximity of relationship between the police and the victim was greater than would with the general risk to members of public.
These cases however clearly depart from the contemplation of the principles that is settled in the case of Donoghue V. Stevenson. The courts had introduced further element that relieves defendants from liability where foreseeable injuries occur as a result failure to take reasonable care.
The court in the case of Wombwell V. Grimsby Fish Dock Enterprises, the appellant in this case claimed personal injury against the respondent for injuries caused on the respondents premises. The respondent had kept on its quayside cylinders containing gas under pressure for about 2 years.
The appellant had entered on the respondent’s premises to fit his boat for sea and had been injured by the cylinders when it discharged. The court held that the respondent did not owe any duty because the appellant use of the premises was not for the purpose he was allowed on it.
The court in this case failed to follow the comparative element that the duty to take reasonable care is owed to all those that may reasonably be foreseeable to use the premises of the respondent. This duty is owed to anyone who is foreseeable to use the premises.
The rule in Donoghue V. Stevenson is to award damages for injuries where the defendant and the claimant are in a position of proximity and the claimant suffers injuries because of the failure of the defendant to take reasonable care so as not to cause injuries to the claimant’s person or goods. In this case failure of the defendant to remove the cylinder containing gas which it stored for years and the fact that the defendant could reasonably foresee that it may discharge and cause harm renders the court decision to depart from the comparative of Donoghue V. Stevenson.
In Blake V. Galloway, the parties were engaged in high spirited horse game. The claimant threw at the defendant a piece of chipping bark which struck the defendant on his back. The defendant thereafter threw the chipping back towards the claimant and struck him just by the eyes causing substantial injuries. The claimant brought an action for battery and/or negligence. The court held that the defendant will be in breach of duty of care if his conduct amounts to recklessness or a very high degree of carelessness.
The courts decision seems to depart from the obvious principle for which negligence was based. The underlying element in negligence cases was to award damages for injuries that were caused as a result of the defendant’s act where:
- The defendant and the claimant are in proximity. In this case, there is no doubt that the claimant and the defendant fall within this range of proximity.
- The defendant owed a reasonable care towards the claimant not to cause injury to his person by ensuring that it conducted in a safe manner towards the claimant.
In this case, these elements are present however, the court failed to apply the comparative test to the fact. It is therefore my conclusion that in light of recent decisions in cases involving duty of care, the courts have failed to apply the comparative simplicity test of Lord Atkin to cases where injuries was caused to a claimant because of the defendant’s failure to take reasonable care where he could reasonably foresee that his failure to take sure care will cause injuries to the claimant. Notwithstanding that the comparative simplicity aided in ensuring certainty, it seems overdue. However, changes in the test may affect the certainty of decisions in duty of care cases.
Blake V. Galloway (2004) 3 ALL ER 315
Donoghue V. Stevenson (1932) AC 562 page 580
George V. Skivington L.R. 5 Ex 1
Heaven V. Pender 11 QBD 503
Hill V. Chief Constable of West Yorkshire (1989) AC 53 HL
Large V. Waldron (2008) EWHC 1937 (QB)
Le Lievre V. Gould (1893) 1QB 491
Phelps V. London Borough of Hillingdon; Anderton V. Clwyd County council; Jarvis V. Hampshire County council; Re G (a minor) (2004) 4 ALL ER 504
Van Colle V. Chief Constable of Hertfordshire, Smith V. Chief Constable of Essex (2008) UKHL 50
Wombwell V. Grimsby Fish Dock Enterprises (2008) EWCA Civ 831
European Convention on Human Rights 1950