Duty Of Care Notes

Duty of Care

Donoghue v Stevenson (HoL 1932)

Facts

1. The plaintiff suffered gastro-enteritis after drinking from an opaque ginger beer bottle which contained the decomposed remains of a snail.

Issue

• General Duty of Care – Origins

Judgment

1. Lord Buckmaster (dissenting)

   • If there is a duty it has not been recognised by English law.

   • If there is a duty it applies to the construction of every article, which would lead an unconscionable plurality of claims.

2. Lord Atkin (concurring)

   • Although it is beyond the function of a judge to seek a complete and logical definition of it, there exists a general conception of relations giving rise to a duty of care, of which particular cases are just instances.

   • This general conception relates to cases where persons are injured through my wrong doing, who are so closely and directly affected by my act that I ought to have them in mind when directing my mind to the acts or omissions which are called into question.

3. Lord Tomlin (dissenting – concurred with Lord Buckmaster)

4. Lord Thankerton (concurring)

   • Case law demonstrates how impossible it is to catalogue finally those relations in which a duty to exercise care arises outside contract.

   • No previous case has dealt with essential element in this case – the manufacturer's own action in bringing himself into direct contact with the injured party.

5. Lord Macmillan (concurring)

   • To ascertain whether a duty of care exists the courts should refer to the standards of the reasonable man – the conception of legal responsibility will thus change as it adapts to altering social conditions and standards.

   • By manufacturing products for consumption, the defendant intends and contemplates that they should be consumed, thus placing himself in a direct relationship with the consumer and owes them a duty to take care.

Ward v McMaster (SC 1988)

Facts

1. The plaintiff borrowed money pursuant to a statutory scheme from the local housing authority in order to buy a house.

2. The defendants failed to have it surveyed properly and it quickly emerged that the house had serious problems, resulting in their having to leave the house.

3. The plaintiffs sued the defendants for their economic loss.

Issue

• Duty of Care – Test for ascertaining duty

Judgment

1. Finlay CJ (concurring – agreed with Henchy and McCarthy JJ)

2. Walsh J (concurring - agreed with McCarthy J)

3. Henchy J

   • A duty would not normally be placed on a mortgagee in favour of a mortgagor.

   • However in this case the plaintiff was in a special position:

     • in order to qualify for the loan he had to show the Council that he was unable to obtain a loan from any other institution – this should have put the Council on notice as to the consequences of their failure to ensure the house was good security

     • likewise the Council should have known that he wouldn't be able to afford a surveyor

   • Thus the Council owed the plaintiff a duty to oserve due care in the valuation of the house.

4. Griffin J (concurring – agreed with Henchy and McCarthy JJ)

5. McCarthy J

   • Lord Wilberforce's Judgment in Anns should be followed.

   • A duty of care arises from a combination of foreseeability, proximity and absence of powerful, countervailing policy concerns.

   • The statutory scheme put the parties into a relationship in which a duty of care arose.

Sunderland v Louth County Council (SC 1990)

Facts

1. The plaintiffs bought a house from an individual who had been granted permission to build it from the Council.

2. The individual had built it negligently and the house became uninhabitable as a result.

3. The Council had expressly approved the house at an earlier time.

Issue

• Duty of Care – Economic loss

Judgment (McCarthy J)

• There was no duty of care in this case.

  • The council were entitled to act on the presumption that prospective occupiers would have the site properly examined.

  • The statutory authority granted to them did not have as its aim the protection and improvement of the housing conditions of persons who are not able by their own resources to provide for it, rather it was to promote the proper planning and development of an area.

Anns v Merton London Borough Council (HoL 1977)

Facts

1. The plaintiffs were lessees under long leases of a number of flats which began to exhibit structural damage.

2. They sued the defendants for allowing the flats to be built negligently.

Issue

• Duty of Care – Generally – Public Bodies

Judgment

1. Lord Wilberforce

   • To ascertain whether a duty of care exists, two criteria must be met:

     • the must be a sufficient proximity or neighbourhood between the parties such that, in the reasonable contemplation of the alleged wrongdoer, carelessness on his part may be likely to cause damage to the victim

     • if the first criterion is satisfied, then there must be no considerations which ought to negative or to reduce/limit the scope of the duty, or the person to whom it is owed or the damages to which a breach of it may give rise

   • Whether a duty of care is to be placed on a public body in the performance of its public functions depends on the discretion accorded to them – the less discretion, the more likely it is that a duty of care will be imposed.

   • Where the public body has a discretion as to how to proceed, the plaintiff in showing a duty of care must prove that the action taken was not within the limits of the discretion accorded to them by statute.

2. Lord Diplock (concurred)

3. Lord Simon of Glaisdale (concurred)

4. Lord Salmon (concurred)

5. Lord Russell of Killowen (concurred)

Murphy v Brentwood District Council (HoL 1990)

Facts

1. The plaintiff was living in a house which had been built negligently and sold as a result of damage arising out of the negligence.

2. The Council had authorised the building.

Issue

• Duty of Care – Public Bodies

Judgment

1. Lord Mackay of Clashfern LC (concurred with Lords Keith and Bridge)

2. Lord Keith of Kinkel

   • Anns found that a duty of care existed on the...

Buy the full version of these notes or essay plans and more in our Irish Tort Law Notes.