⇒ Duty is a pre-requisite in negligence

• But this is not necessary in other torts e.g. battery and assault

⇒ Duty signifies a legally-recognised relationship between the defendant and the claimant, such that care must be taken

⇒ The parties need not be linked by contract for a duty to arise; tort is concerned with obligations outside or in addition to contract

⇒ Duty provides the basis for suits as between strangers: e.g. motorists

⇒ Mrs Donoghue and her friend went to a café to have a float. Her friend bought the float for her. The café owner poured half the Ginger Beer (from an opaque bottle) into her glass of ice-cream. The friend later poured out the second half onto Mrs Donoghue's float and out came a decomposed snail. Mrs Donoghue claimed to have suffered shock, a physical ailment (gastroentiritis) and a psychiatric illness as a result.

⇒ Mrs Donoghue's had an issue because she did not buy the drink nor did she pour it onto her ice-cream, so it was questionable whether or not she could sue. At the time of the case, product liability was contract based: as the friend was the only one with the contract it would appear that Mrs Donoghue could not do anything. Mrs Donoghue nevertheless sued the manufacturer because the bottle was opaque meaning she could not see the snail → the supplier, retailer and her friend could not see in the bottle anymore than she could

⇒ Lord Buckmaster (who dissented): he was concercerned about the preservation of contractual relations, and felt that 'the only safe rule is to confine the right to recover to those who enter into a contract'

⇒ Lord Macmillan (who was in the majority): he said that legal action can arise in tort, even if there is no contract between the parties involved.

• He said it is appropriate to impose a duty of care upon manufacturers in certain circumstances. He said that one example where this would be so, as happened in this case, is where there is no opportunity for intermediate inspection of the goods. As the bottle here was opaque there could be no intermediate inspection, so the manufacturer retained control and could, therefore, be liable in tort

⇒ Lord Atkin: he was looking for a general principal to apply in similar cases, and came up with the 'neighbour principle'

• The neighbour prinicpal: Lord Atkin said that there is this idea running through the 'duty of care' cases that you must not injure your neighbour (i.e. a person who is closely and directly affected through your actions).

⇒ Since Donoghue v Stephenson there’s been big increase in cases where duty of care is imposed

⇒ It should be noted that the test for need only be invoked in exceptional cases. Ordinarily, the courts will look to the existing authority on duty to determine whether or not there is a duty in the case before them

⇒ Uncontentious duty categories include (i.e. cases where duty already exists, so there is no need to go through the test for duty):

• A doctor owes a duty of care to his patient (Pippin v Sheppard (1822))
• A solicitor owes a duty of care to his client (Groom v Crocker (1939))
• Manufacturer to consumer (Donoghue v Stevenson (1932))
• Banker to client (Woods v Martins Bank Ltd (1959))

⇒ In some cases, it is clear that no duty is owed:

• The ship classification society owes no duty to cargo owners for financial loss (Marc Rich v Bishop Rock (1996))
• Company auditors to outside investors for financial losses (Caparo Industries v Dickman (1990))

⇒ In other cases, it is unclear whether or not duty is owed:

• E.g. Whether or not a self-inflicted accident victim owes a duty to rescuers (Greatorex v Greatorex (2000))

⇒ Where there is no previous authority that binds the court, the case is a 'novel' one. It will, therefore, then be important to apply the test for duty to determine whether a duty of care exists

⇒ In Donoghue v Stevenson (1932), it was said that the test for duty was reasonable contemplation + closeness and directness

⇒ Lord Wilberforce determined a two stage test for duty in Anns v Merton LBC

⇒ In Caparo Industries plc v Dickman (1990) it was said there is a three-stage test for duty (which remains the authority in most cases): foreseeability + proximity + policy → these elements are explained in greater detail below

⇒ Also see Home Office v Dorset Yacht Co

⇒ The first element in determining whether or not the defendant owes a duty of care in any particular case is forseeability → this requires that a reasonable person in the position of the defendant must have reasonably foreseen injury to a class of persons that includes the claimant (or the claimant individually)

• This is a fact-based evaluation: it must be determined what is reasonably foreseeable on the facts of the particular case
• There must be foreseeability of a real risk of injury; not just a far-fetched or fanciful risk of injury
• Usually foreseeability or injury to a person in the class comprising the claimant is sufficient e.g. if a reasonable person in the position of the defendant could forsee a real risk of injury to motorists (a class of persons that would include the claimant), the defendant's later injury he causes to Fred (driving his car) would be enough
• However, in some cases, it may suffice for the court to focus upon the foreseeability of injury to the claimant him/herself, especially where the facts of the particular case are not liely to recur

⇒Forseeability of harm is not always straight forward e.g. is it foreseeable that a psychiatric illness might be caused to another driver after an accident?

• See the case of Bourhill v Young and Haley v London Electricity Board

⇒ There is a long deabte about this element → it is often though that proximity and reasonable foreseeability are a similar concept and an informant of the other

⇒ Proximity is concerned with how the claimant and the defendant are situated with reagrd to each other prior to the defendant's failure to take care i.e. proximity is concerned with the factual relations between the parties which signified the potential for the defendant to cause harm to the claimant (and persons similarly placed)

⇒ So, the court must determine whether there existed substantial pathways to harm between parties i.e. means by which the defendant's failure could harm the claimant

⇒ Kinds of proximity:

• Physical closeness: in Home Office v Dorset Yacht Co, for example, the yachts were in close proximity to each other
• Contractual or other pre-existing relations: in other words, where one party is in a contract with another party, and fails to take care, that is a pathway to harm (Henderson v Merrett Syndicates)
• Power or control by the defendant over the claimant
• Note: the courts also look at other ‘proximity’ factors, such as knowledge by the defendant of the likelihood of harm to the claimant or the class of persons the claimant is in. Or whether or not the claimant is vulnerable

⇒ The court has a discretion/choice about whether a duty will be imposed, regardless of a finding of proximity and foreseeability, on the basis of whether it is fair, just and reasonable. If the court ultimately decides the imposition of a duty would not be fair, just and reasonable there will be no duty owed.

• This involves consideration of ‘policy’

⇒ Policy arguments derive from:

• Policies evident in statutes, including the Human Rights Act 1998: Campbell v MGN Ltd
• Policy inherent in surrounding case law
• Legal ‘values’, including autonomy of the individual: Tomlinson v Congleton BC
• Preference for protection of physical interests over the mind and financial assets
• Preference for protecting the ‘vulnerable’: Haley v London Electricity Board
• Need to avoid conflicts between branches of the law: Spring v Guardian Assurance plc
• Idea that persons should take responsibility for themselves: Tomlinson v Congleton BC
• Idea that persons covered by insurance do not need the protection of the courts: Patrick Atiyah

⇒ Note: these policies are not consistently applied

⇒ The case of Marc Rich v Bishop Rock Marine demonstrates the importance of the policy limb

⇒ The case of Donoghue v Stevenson (above) featured a claim for physical injury (gastroenteritis) with ‘consequential’ psychiatric injury

⇒ Where a defendant is found liable for the physical injury of a claimant, he/she will alos be liable for all consequential psychiatric injuries (and financial losses) so long as they are foreseeable in nature

⇒ If the consequential psychiatric illness or financial loss is not foreseeable and the claimant still wants to claim in respect to those losses then he/she will have to plead a separate duty of care (i.e. prove that the defendant owed him/her a duty of care in respect of their mental/financial wellbeing)

⇒ The following notes are concerned with cases where the initial injury is psychiatric – where all injury (including physical manifestations of it) emanates from the workings of the mind

⇒ A duty can arise only where the injury actually suffered is a psychiatric illness → there is no duty with respect to temporary emotional states, such as grief, anxiety or fear: Page v Smith; White v Chief Constable

⇒ Psychiatric illness includes:

• Hysteria – wild, uncontrolled emotion
• Neurosis – irrational or depressive thought
• Depression
• Psychosomatic (bodily) effects of above illnesses, such as paralysis

⇒ Early law refused to recognise a duty of care owed with respect to psychiatric illnes: see, for example, Victorian Railway Commissioners v Coultas

• However, developments began with the so-called 'primary victim' cases...

⇒ The law divides the negligent infliction of psychiatric illness cases up (generally speaking) into cases of primary victims and secondary victims

⇒ Primary victim cases involve the claimant and the defendant only e.g. where the defendant creates a risk of physical injury, so that the claimant is actually, or reasonably believes him/herself to be, imperilled (i.e. at risk of physical injury) → in other words, no physical injury ensues, but the claimant claims for psychiatric illness

• See the cases of Dulieu v White and Page v Smith

⇒ In terms of foreseeability, foreseeability of any form of personal injury (physical or psychiatric) is sufficient to ground a duty of care

⇒ In this category, the claimant is not threatened directly and personally by the risk of physical injury. These cases involve three parties:

• The defendant fails to take care and kills/injures someone else (X)
• The claimant witnesses the injury to X and suffers a psychiatric illness
• The claimant claims compensation from the defendant

⇒ Such 'secondary victim' claims were first recognised in Hambrook v Stokes

⇒ The case of McLoughlin v O’Brian shows an extension of who can be a secondary victim → the case dictated that a defendant owed a claimant a duty of care despite the psychiatric illness occuring over two hours after the initial injury by the defendant

⇒ Lord Wilberforce set out the appropriate proximity limits in 'secondary victim' cases (i.e. what proximity is required between the defendant and the claimant to demonstrate there is a duty of care owed):

• Class of persons: there must be a tie of love and addection between the person the defendant injured (X) and the claimant → so a mere bystander will not be able to claim
• Proximity to accident: the claimant must be close, in time and space, to the accident. In McLoughlin v O’Brian it was held that a 2 hour drive to the hospital (i.e. the aftermath) was sufficient proximity
• Means of perception: the claimant must perceive the injury to X through sight and/or hearing. So, the claimant cannot demonstrate there is a duty of care where he/she saw the injuries to X through TV coverage, through the radio, or through what he/she is told. In other words, you must perceive the injury yourself with your own unaided senses

⇒ The three proximity limits were re-affirmed in the case of Alcock v Chief Constable of South Yorkshire

⇒ A claim by the ‘unwitting agent’ of a death has been rejected: Hunter v British Coal

⇒ In other words, the unwitting cannot have recovery - see the case facts below

• The claimant was driving a vehicle in a mine but should not have been doing so because of the lack of overhead clearance. He damages a water hydrant and needs to turn off the water supply. The fire hydrant explodes and kills a colleague of his. The claimant, therefore, sues his employer for negligence. The claimant had suffered a psychiatric illness because he believes he had been the unwitting agent of the injury. The court said the employer would not owe a duty of care in these circumstances