The Tort of Negligence

The neighbour principle in the tort of negligence was established in the landmark case of Donoghue v. Stevenson.[1] The rule in the case established that a claimant did not have to be in a contractual relationship with a defendant for their claim to be successful.[2] Lord Atkin pronounced that, in order to determine foreseeability, a party had to “take reasonable care to avoid acts and omissions which would be likely to injure one’s neighbour”. A neighbour was thereafter assumed as a person who “was so closely and directly affected by an action that one should have had them in mind as being so affected when choosing to carry out an act or omission”. The postulation has been a controversial one as there was no framework on the manner in which a person could establish it. The paper will hereinafter analyse the ‘emptiness’ associated with the neighbour principle, and the role of foreseeability in negligence. Foreseeability is a critical aspect of the tort of negligence although it lacks guidelines which confine its application thereby leaving it to the jurisdiction of the courts to decide cases based on public policy.

The neighbour principle as extraordinarily empty

Conaghan and Mansell are the most elaborate critics of the ‘neighbour principle’ which they deemed ‘extraordinarily empty’.[3] The position was informed by the belief that the words used in elaborating the neighbour principle were incoherent because of a lack of definition of the words used and their parameters.[4] The definition of the ‘reasonable man’ who could determine foreseeability, for example, was left to the interpretation of an individual. As such, it becomes difficult to assess whether the person was a ‘reasonable economic person’, as postulated by Rodgers,[5] and in United States v. Carroll Towing Co.[6] In business, such a person would be concerned with the cost-benefit analysis which would not necessarily be a consideration for an average person, also referred to as the ‘bonus pater familias’ or ‘a man on the Clapham omnibus as stated by Lord Judge Greer in Hall v Brooklands Auto Racing Club.[7] The courts thereafter determined the individual, with no foundation on Lord Atkin’s assertion, as being an ordinary citizen.[8]

Bradney Anthony claims that the doctrine was not elaborated as a legal principle, but rather a persuasive one from a religious standpoint which was held in high regard at the time.[9] As such, the author cautions that the position was not meant to be binding, but rather inform the public of the manner which they could determine foreseeability. Moreover, since the case of Donoghue presented a unique scenario which was previously unprotected in law, due to her lack of contractual relationship with the person who had been negligent and caused her harm, the Court sought to increase the scope of the duty of care in order to give protection to more persons.[10]

The role of foreseeability in the tort of negligence

The test of foreseeability, although lacking strict boundaries thereby making it prone to manipulation, is important in the tort of negligence as it assists in establishing proximate cause.[11] Owen describes it as “a great paradox of tort: one of its most vital moral tethers, yet irretrievably its most elusive”[12]. The belief is based on the scope of the test as effects of an action can extend forever based on the enunciated principle by Lord Atkin.[13] The position was asserted in Greenland v Chaplin,[14] whereby an opinion was fronted that a defendant should not be held liable due to consequences which every reasonable man would not fathom as emanating from his actions. The role of foreseeability therefore acts, not only to limit the scope of instances where negligence could be established based on the test by Lord Atkin, but also to provide people within the society with a means by which they could predict the legal consequences that could emanate from their actions.

The importance of the test is based on its distinction between acts which are intentionally carried out without due regard to the consequences that could befall third parties and the implications which the person could not have reasonably expected to arise from their activity.[15] The problem that however arises is the lack of set structural guidelines for determining the manner in which foreseeability can be assessed. A look at past decisions on foreseeability shows no coherent method adopted to determine it but rather an enunciation of principles aimed at obscuring public policy which is at the heart of cases decided in favour of the existence of proximity.[16] Kelley further expounds that foreseeability “is so open-ended that it can be used to explain any decision, even decisions directly opposed to each other”.[17] As such, no reasonable inferences can be made in order to suggest the likely outcome of a case on negligence as such a decision would be based on what a judge seems appropriate based on his own views and values or biases regarding particular facts.

References:

[1] [1932] All ER Rep 1; [1932] AC 562

[2]ibid

[3] Joanne Conaghan & Wade Mansell, The Wrongs of Torts 7 (2nd ed 1999) p. 50

[4] Joanne Conaghan & Wade Mansell, The Wrongs of Torts 7 (2nd ed 1999) p. 50

[5] Rodgers William H., Jr., Negligence Reconsidered: The role of Rationality in Tort Theory, 54 S. Cal. L. Rev. 1, 6 (1980)

[6] 159 F.2d 169 (1947)

[7] 1 K. B. 205, 224 (1933)

[8] MacFarlene v. Tayside Health Bd, [1999] 4 All E.R. 961, 977 (H.L)

[9] Anthony Bradney, Conversations, Choices and Chances: The Liberal Law School in the Twenty-first Century, Hart Publishing, 2003, p. 89-92

[10] Daniel More, The Boundaries of Negligence, Theoretical Inquiries in Law 4.1 (2003)

[11] Meiring de Villiers, Foreseeability Decoded, Minnesota Journal of Law, Science & Technology, Vol 16 (2015) p. 344.

[12] David G. Owen, Figuring Foreseeability, Wake Forest L. Rev. 44 (2009) p. 1277

[13] William L. Prosser, Handbook on the Law of Torts, (1941) 342

[14] 155 Eng. Rep 104 (Exch. Div. 1850)

[15] H.L.A Hart & Tony Honore, Causation in the Law (2ed, 1985) p. 231.

[16] Thomas C. Galligan, A Primer on the Patterns of Negligence, 53 LA. L. Rev.1993, p. 1503

[17] Patrick J. Kelley, Restating the Rule of Law, Vand. L. Rev. 54 (2001) p. 1039