This document provides model answers to 3 questions taken from the 2019/2020 past paper for the Obligations 2 (Delict) module. Author achieved a first class grade for the module.
Discuss how the concept of duty of care has developed within the law of
negligence since Donoghue v Stevenson 1932 SC (HL) 31.
Total 100 marks.
Model Answer
In order for a pursuer to be successful in a negligence action, it must first be proved that the
defender owed a duty of care to the pursuer. The law demands that the relationship between
the alleged victim and alleged wrongdoer is close enough for the law to impose a duty. There
had been several attempts by the courts to develop a test to determine whether a duty of
care was owed by the defender. The first test was developed in the Donoghue v Stevenson
case. In this case, the House of Lords held that Mrs Donoghue was entitled to sue Stevenson
in the law of delict because it was found that Stevenson owed her a duty of care. This
produced the ‘Atkin dictum’ in order to determine whether a duty of care existed. Lord Atkin
stated “The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour…You must take reasonable care to avoid acts or omissions which would be likely to
injure your neighbour. Who then in law is my neighbour?... 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 called in question”. It is clear
that Lord Atkin based his test for duty of care on the principle of foreseeability. Essentially,
the law demands that the relationship between the alleged victim and alleged wrongdoer is
close enough for the law to impose a duty. The court found that a “reasonable” manufacturer
of a product put onto the market for “human consumption” would “reasonably foresee” that
the consumer of the product could potentially be harmed if the product were unsafe.
, The Atkin Principle was effective in cases that followed such as Beaumont v Surrey County
Council, where the education authority was held liable for the injury of a pupil on the basis
that the injury caused to the plaintiff was reasonably foreseeable. Furthermore, in Home
Office v Dorset Yacht Co Ltd, Lord Reid stated “The time has come when we can and should
say that [Lord Atkin’s “neighbour” principle] ought to apply unless there is some justification
or valid explanation for its exclusion”. However, the success of the test was short lived when
the case of Anns v Merton London Borough Council came before the House of Lords. In this
case, the House of Lords developed a “two-staged” approach. Lord Wilberforce stated that
“First, one has to ask whether, as between the alleged wrongdoer and the person who has
suffered damage, there is sufficient relationship of proximity or neighbourhood such that, in
the reasonable contemplation of the former, carelessness on his part may be likely to cause
damage to the latter-in which case a prima facie duty of care arises.” The first part of the
approach embraced the Atkin Principle that there must be an element of foreseeability
present. There had to be a sufficient relationship of proximity, and if found to be sufficient,
then a duty of care would in fact arise. The second stage of the approach was to consider any
policy considerations which could prevent a duty of care arising.
However, the judiciary began to have its doubts to the new approach. This was evident in the
case of the Australian case Sutherland Shire Council v Heyman, where Brennan J stated that
“…the law should develop novel categories of negligence incrementally and by analogy with
established categories” as opposed to a rigid ‘one size fits all’ test. Thereafter, there was
another major shift in the duty of care test in the case of Caparo v Dickman. This case
developed the Caparo Test or “tripartite test” which is still the current approach to a duty of
care cases. Essentially, the test improved upon the original principle set out by Lord Atkin in
Donoghue. Three criteria were established in order for a court to determine whether a duty of
care arises in a case. Firstly, the loss must have been reasonably foreseeable. Secondly, there
must be a relationship of proximity between the pursuer and the defender. Finally, it must be
fair, just and reasonable to impose such a duty of care on the defender. There was also a
requirement for the consideration of any public policies which may affect the existence of a
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