Has The Neighbourhood Principle failed? “My neighbour asked me if he could use my lawnmower and I told him of course he could, so long as he didn’t take it out of my garden. ”1 This is the concept which most people tend to associate the word ‘neighbour’ with. However, in the court room, the word makes a decisive shift away from this traditional meaning and endeavours to establish to whom a common law duty of care is owed. The law has expanded considerably by the onset of the concept of foreseeable plaintiffs which is almost 80 years in existence in the UK.

It is evasive in determining “whether proximity should now be regarded as a discrete analytical concept around which arguments may be constructed, or merely as a slippery expression reflective of the fairness, justice and reasonableness of imposing a duty of care upon the defendant in the light of the nature of his relationship with the claimant. ” 2 This essay sets out to establish whether the neighbour principle was successful or if it has fallen short and where, it will present court decisions, statutes and constitutional provisions pertinent to this area of law.

In articulating what was meant by “the neighbour principle”, Lord Atkin famously stated the following proposition: “The rule that you must love your neighbour becomes in law you must not injure your neighbour; and lawyer’s question, 'who is my neighbour? ’ receives a restricted reply. You must take reasonable care to avoid acts or omissions 1 2 Eric Morecombe (English comedian, 1926-84) Hartstone, J. , ‘Confusion, contradiction and chaos within the House of Lords post Caparo v. Dickman’, (2008) 16 Tort L Rev 8 which you can reasonably foresee would be liable to injure your neighbour?

The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ”3 His definition was to become the foundation stone of later cases involving negligence and was, in due course, accepted as “the first definitive test of when a duty of care was owed. ”4 Atkin’s statement has given rise to much discussion. At first, some displayed uneasiness at the very wide and flexible terms in which it was propounded 56.

It is important to remark that this neighbour principle formed part of the ratio decidendi of Atkin’s judgment but that it cannot be said that it is the ratio decidendi of his decision. “For although both Lord Thankerton and Lord Macmillan contemplated the addition of new duties to the law of negligence, neither of them attempted to formulate the principle or principles upon which this might be done. Nor is the generalising approach of the neighbour principle appropriate to the criminal law, where precision and certainty are all-important. ”7 As a consequence of the Donaghue v.

Stevenson [1932] case in the UK, the people were given a potential remedy to take against the providers of consumer products even where no privity contract had been in existence between the 3 4 Ibid at 580 Connolly, U. , Tort Law, (Second Audition, Thomson Reuters (Professional) Ireland Limited, Dublin, 2009) at 16 5 Smith v. Howden’s Ltd [1953] N. I. 137 per Lord MacDermott C. J. 6 London Graving Dock Co. Ltd. v. Horton [1951] A. C. 736 7 Heuston, R. F. V. , ‘Salmond on the Law of Torts’, 17th edition, (Sweet & Maxwell, London, 1977) at 198 complainant and the individual or company tortfeasors.

If the proviso for ascertaining that a duty of care was met, then such individuals could bring negligence claims in any situation. The dictum was accepted into Irish law in Kirby v. Burke [1944]. 8 The decision in this case “stands on the boundaries of actionable negligence,”9 and does not contend nor purport to give guidance on the obligations arising from already distinguished duties, or in fact, recognisable relationships – e. g. that of occupier and visitor. 10 Sometimes the particular duty can subsist contemporaneously with the Atkinian duty,11 but sometimes it displaces it. 2 Duties may be divided into those owed to someone else i. e. “if it was imposed for the benefit of that someone else;”13 and duties owed to no one in particular i. e. if it was not imposed for the benefit of a particular individual but was imposed for the benefit of the community as a whole or for the benefit of some section of the community. ”14 In an ever conscious society, there was much need for the modernisation of the law with regard to the wider duties and especially the neighbourhood principle. The Anns v.

Merton15 case brought about the ‘two-stage test’ in order to ascertain 8 9 Kirby v. Burke [1944] I. R. 207 Smith v. Howdens Ltd. [1953] N. I. 131, 137, per Lord MacDermott C. J. 10 Smith v. Scott [1973] Ch. 314 11 Commissioners for Railways v. McDermott [1967] A. C. 1054 12 Commissioners for Railways v. Quinlan [1964] A. C. 1054 13 Bagshaw, R. and McBride, N. , ‘Tort Law’, (Pearson Education Limited, Essex, 2001) at 3 14 Ibid at 3 15 Anns. v. Merton London Borough Council [1978] A. C. 728 the existence of a duty of care in negligence.

Lord Wilberforce initiated the requirement of: I. II. “A sufficient relationship of proximity based upon foreseeability”16 And secondly, the deliverance of reasons as to why a duty of care should not exist. In 1990, concerns arose with regard to the duty of care. 17 “Lord Bridge and Oliver in Caparo sought to remove any temptation on the part of the practitioners to view proximity as a discrete legal concept capable of precise application to the resolution of legal disputes. Instead, encouragement was given to view proximity in descriptive terms rather than as a definitive concept. 18 This time a three-stage test was introduced to establish a duty of care I. II. III. Foreseeability of damage was required, A relationship characterised by neighbourhood19 And that it would be fair, just and reasonable to impose a duty which would benefit the other party. “The Caparo tripartite approach made no reference to the concept of policy. Instead, Lord Bridge spoke only in terms of a duty of care being imposed where the 16 17 18 Ibid at 741 Caparo Industries Plc v. Dickman [1990] 2 A. C. 605 Op cit 2 as per judgment of Lord Atkin ‘Caparo v.

Dickman’ (2008) 16 Tort L Rev ‘Caparo v. Dickman’ (2008) 16 Tort L Rev 8Lawbook Co. at 13 8Lawbook Co. at 13 19 court considered that it would be fair, just and reasonable to do so. ”20 It is also interesting to note that a two-part test is now in place in certain jurisdictions, e. g. New Zealand, for novel fact circumstances where the finding of a duty now has to be balanced against applicable policy matters. 21 The two-step test established in Donaghue22 and later developed in Anns23 was that accepted by the Irish courts until 2002 until the decision of Glencar Exploration Plc v.

Mayo County Council [2002]. 24 This case marked the adaptation of a two-step test which gave precedence to the “incrementalist approach”25 that was being applied in the English courts at the time. Implications of the decision in this case made by the Supreme Court became blatant in the case of Fletcher v. Commissioners of Public Works. 26 “A plaintiff who suffered reasonably foreseeable psychiatric injury, which had resulted from the defendant’s negligence towards him as his employer, was denied the damages awarded to him by the Supreme Court on ‘policy’ grounds. 27 This new approach is much more sympathetic. Since 2005, proximity has once again come to the fore with regards to decisions made by the House, some of their Lordships have adopted it as a “central analytical tool for disposing of appeals. ”28 Thus, the notion that this principle of 20 21 22 23 24 25 26 27 28 Ibid at 13 Scott Group Ltd. v. McFarlane [1978] 1 N. Z. L. R. 553 Op cit. 4 Op Cit 19 Glencar Exploration Plc v. Mayo County Council [2002] 1 I. R. 84 Class notes on Negligence authored by Connolly, U. , distributed by Hackett. C. Fletcher v.

Commissioners of Public Works in Ireland [2003] 2 I. R. 465 Byrne & Binchy, Annual Review of Tort Law, (2003) at 526 Op cit 26 at 13 proximity could “have been elevated to the dignity of being a concept in its own right”29 originated. It is subsequently unclear now as to whether it should be regarded as “a discrete analytical concept around which arguments may be constructed, or merely as a slippery expression reflective of the fairness, justice and reasonableness of imposing a duty of care upon the defendant in the light of the nature of his relationship with the claimant. 30 To bring to a close, the term ‘neighbour’ and proximity clearly have a much wider interpretation – physical proximity, causal proximity or indeed the denotation of a legal relationship. Furthermore, if this test is satisfied, it is then up to the court to decide whether any policy reasons (or otherwise) exist so as not to acknowledge a duty of care in that particular case. The elusiveness of how this dictum is interpreted may never be resolved. It is the application of policy to novel situations of what is fair, just and reasonable that has instigated the advancement of the neighbour principle.

In other fields of law, the broader legal concepts of reasonableness and unconscionability are applied every day. The courts are in a state of uncertainty with regard to the dictum. It is evident that the law has had to expand considerably. So perhaps, in the future, the test of fair, just and reasonable as displayed in the Glencar31 case will be triumphant due to its conversion of the practical, everyday test for negligence into the legal test. Despite having its flaws, it still makes the law comprehensible to all. 29 30 31 Ibid at 13 Ibid at 13 Op cit 34