TORT 1.12B NEGLIGENCE (DUTY OF CARE)
In construing a duty of care we ask ourselves;
- Is there a recognisable duty owed to the plaintiff?
- From the facts of the case, does the defendant owe the plaintiff a duty of care?
In answering the above questions, we are to ask ourselves;
- Is there sufficient proximity between the defendant and the claimant?
- Would it be just, fair and reasonable to impose a duty? Anns v. Merton London Borough
- Should the duty of care be denied on grounds of public policy or justice-Ashton v. Turner.
In Donoghue v. Stevenson, the plaintiff went out with a friend. The friend ordered a gingerbeer drink contained in an opaque bottle for her. While pouring out the content from the bottle, the remains of a dead and decomposed snail fell out. The plaintiff fell ill afterwards. The defendants contended that there was no privity because she was not a party to the contract. Lord Atkin construed a duty by applying the neighbourhood principle using the foreseeability test. He defined a neighbour as persons that are so closely and directly affected by my act that I reasonably ought to have them in contemplation as being so affected. Irrespective of privity- Junior Books v. Veitchi.
This decision was followed in Osemobor v. Niger Biscuits where the plaintiff was eating some biscuits which he bought from a shop. He then felt a hard object and found that it was a decayed tooth embedded in the biscuit. He became ill and sued the manufacturers. It was held that manufacturers owed consumers a duty of care.
As time went on, the courts tried to close their flood gates by narrowing down the principles. Some other requirements were added to the reasonable foreseeability test of Donoghue V Stephenson.
In Anns v. Merton London Borough, Lord Wilberforce noted that the courts should in addition, ask whether it would be contrary to public policy to impose such duty. Then the House of Lords in the case of Murphy v. Brentwood District Council opined that the courts should impose a duty of care only when they can find similar precedents. In Caparo Industries Plc v. Dickman, the court noted that (in addition to the damage being reasonably foreseeable and there being proximity between the parties) the court should ask whether it is just, fair and reasonable to impose a duty in the particular situation/circumstance.
Furthermore, in recent times, the courts have been reluctant to impose duty in certain circumstances for example,
- Areas of pure economic loss: where instead of causing damage, the defendant’s act led to the loss of possible profit/gain for the plaintiff. E.g. in Spartan Steel v. Martin and Co, The defendants had negligently cut an electric wire. This led to a power outage which lasted for almost 14 hours. The plaintiff manufacturing industry was affected as such they could not carry on with their duty. The court awarded compensation for the damage to the furnace and the metal but refused to award damages for the loss of profit for metal which would have been processed during the time the factory was shut as the remedy was purely economic. Note however that purely economic losses may be enforced in cases of misrepresentation. See Hedly Byrne v. Heller and Partners Co;
- Psychiatric injury: where the negligence caused some psychiatric injury, the court may still be reluctant and would ask whether the psychiatric injury is recognized in medicine and reasonably foreseeable. Alcock v. Chief Constable of South Yorkshire. Bourhill v. Young.
Negligence of a counsel in handling his client’s case: Some clients usually allege that their counsel/lawyer was negligent in handing their case and that is why they lost. The courts have expressed its reluctance to entertain such claims. See Hall v. Simons.
Duty of care has also been construed in;
- Manufactures owe a duty of care to consumers- Donoghue v. Stephenson, junior books v. veitchi, chukwuma v. niger biscuits ltd.
- The doctor is required to use reasonable care to treat a patient- Okonkwo v. MDPDC.
- Duty of care not to make misstatements.- hedley byrne v. heller and partners co, agbomagbe bank v. CFAO.
 I.e. since it was the claimant’s friend that bought the drink. Hope you haven’t forgotten your privity of contract?
 Therefore, the beer company ought to have foreseen that a person would drink from the bad bottle of beer. Therefore, they owed a duty of care to ensure that the contents were safe for consumption.
 i.e. when one can foresee that his act would affect another, he owes a duty to take care. If he doesn’t take care, then he can be held liable in negligence.
 With the introduction of the omnibus motion in England and the US, this enables a client to reopen the case for reconsideration alleging that due to the lawyer’s negligence, some substantial evidence or defence which could have exculpated him was overlooked. And refusal to hear him out may lead to injustice and unfairness.