226 Chapter 8The tort of negligence
Using Lord Atkin’s famous ‘neighbour’ speech, the courts have established certain recog-
nised duty situations. For example, it is well established that road users owe a duty of care
to other road users and pedestrians. Similarly, manufacturers and repairers owe a duty of
care to their customers, and professional advisers owe a duty of care to their clients. The
true significance of Donoghue vStevensonis that it allows the tort of negligence to expand
to cover new situations. However, when a new situation arises, the courts decide whether
or not a duty of care is owed by considering how similar the new situation is to situations
where the courts have already decided that duty is or is not owed. This approach is known
as an incremental approach.
In Caparo Industries plc vDickman (1990)the House of Lords held that a duty of care
would be owed if three conditions were satisfied:
(i) It must have been foreseeable that harm would be caused to the claimant.
(ii) There must have been ‘proximity’ between the claimant and the defendant.
(iii) It must be just and reasonable for the court to impose a duty of care.
Proximity can arise only where it was foreseeable that harm would be caused to the
claimant, but it is a more complex concept than foreseeability. For example, if a driver ran
over a claimant and physically injured him or her then the necessary proximity would
be present just because physical injury was foreseeable. If a second pedestrian, who was
not physically injured, suffered nervous shock as a consequence of seeing the accident
the necessary proximity might not be present. This would depend upon factors such as the
distance the second pedestrian was from the accident and the closeness of the relationship
between the two pedestrians. If the second pedestrian was very close to the accident, or if
the second pedestrian was a very close relative of the first pedestrian, then it is very likelythe ginger beer the remains of a decomposed snail fell out of the bottle. The contamination
of the ginger beer caused the claimant to suffer gastroenteritis and the sight of the snail
caused her to suffer nervous shock. The claimant could not sue the café which had
sold the ginger beer because she had no contract with the café. Instead, she sued the
manufacturer of the ginger beer, claiming that the manufacturer owed a duty of care to
customers. The manufacturer denied that any such duty was owed.
HeldManufacturers owe a duty of care to see that their customers are not injured by their
products.
Lord Atkin said: ‘You must take reasonable care to avoid acts and omissions which you
can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be – persons who are so closely and directly affected by
my act that I ought reasonably have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.’
Comment(1) If the case were to arise today, the Contracts (Rights of Third Parties) Act
1999, considered in Chapter 2, would have allowed the claimant to sue the café in contract.
(2) As the ginger beer was ‘unsafe’, the Consumer Protection Act 1987, considered later in
this chapter, would now have allowed the claimant to sue the manufacturer of the ginger
beer without proving negligence. (3) These new rights to sue do not detract at all from the
principles set out in the case, which is considered one of the most important cases in
English law.