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Resiling from the Anns principle: the variable nature of proximity in negligence

Published online by Cambridge University Press:  02 January 2018

Richard Kidner
Richard Kidner*
Affiliation:
University College of Wales, Aberystwyth
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Extract

For a number of years there has been considerable criticism of both Donoghue v Stevenson and Anns v London Borough of Merton on the grounds that the prima facie duty doctrine which some believe those cases established is so wide as to be meaningless and obscures more than it reveals. This article seeks to show how the courts have come to accept this criticism and to indicate how the concept of duty should now be viewed. In particular the point is that there are now different levels of proximity required to establish a duty in different situations and that while this means that the various categories of duty must be distinguished from each other, this does not involve ossification of the law, but rather development of the law may be made easier by a pragmatic rather than a conceptual approach. The principle that 'the categories of negligence are never closed’ means both that existing duties may be refined and extended, and also that new duties may be created. How that can be done depends on our understanding of the nature of the concept of duty and how each step should be taken.

Type
Research Article
Information
Legal Studies , Volume 7 , Issue 3 , November 1987 , pp. 319 - 332
Copyright
Copyright © Society of Legal Scholars 1987

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References

1. [1932] AC 563.

2. [1978] AC 728.

3. [1932] AC 562 at 619 per Lord MacMillan.

4. [1978] AC 728 at 751.

5. [1970] AC 1004 at 1027.

6. See for example the discussion of Heaven v Pender [1932] AC 562 at 581.

7. See also 584, ‘it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary …’.

8. Winfield, ‘Duty in Tortious Negligence’ (1934) 34 Col LR 41.

9. Buckland, ‘The Duty to Take Care’ (1935) 51 LQR 637.

10. (1934) 34 Col LR 41 at 66.

11. [1964] AC 465.

12. See for example his comment, (1935) 51 LQR 637 at 639, that Roman Law would not have given an action for negligent misstatements ‘because the kind of harm done did not come within the rule as to damage to physical property however analogically extended.’.

13. Pollock's Law of Torts (15th edn, 1951) p 326 (Excursus D written in 1939 but left unamended).

14. It is interesting to note that Winfield in his survey of the law of tort from 1885–1935 refers to Donoghue v Stevenson only briefly, primarily in relation to a manufacturer's liability, but also noting that the neighbour test is likely to become a classic (1935) 51 LQR 249 at 254.

15. See for example The Aliakmon [1985] 1 QB 350 at 392 per Goff LJ.

16. ‘Donoghue v Stevenson in Retrospect’ (1957) 20 MLR 1. See also Heuston, ‘Donoghue v Stevenson A Fresh Appraisal’ (1971) 24 CLP 37.

17. Fleming, ‘Remoteness and Duty’ [1953] Can BR 471 at 486.

18. J. C. Smith and P. Burns, ‘Donoghue v Stevenson The Not so Golden Anniversary’ (1983) 46 MLR 147.

19. ‘The word is apt to mislead’: McGarvie J in Seale v Perry [1982] VR 193 at 227.

20. Yeun Kun Yeu v A-G for Hong Kong [1987] 2 All ER 705.

21. However some judges came very close to this by positing the prima facie duty concept and then assigning a very limited role to policy, thus leaving foresight almost supreme. See for example Mcloughlin v O'Brain [1983] 1 AC 410per Lords Scarman and Bridge. However Lord Wilberforce at 420 is rigorously of the opinion that ‘forseeability does not of itself, and automatically, lead to a duty of care.’.

22. Scott Group v McFarlane [1978] 1 NZLR 553 at 573 per Woodhouse J.

23. See particularly Bell, Policy Arguments in Judicial Decision Making, pp 40–84, and Symmons, ‘The Duty of Care in Negligence: Recently Expressed Policy Elements’ (1971) 34 MLR 394.

24. See for example Oliver LJ in The Aliakmon [1985] 1 QB 350 at 373 and Lord Scarman in Mcloughlin v O'Brian [1983] 1 AC 410 at 430.

25. See Mcloughlin v O'Brian [1983] 1 AC 410 at 430 per Lord Scarman and at 426 per Lord Edmund Davies.

26. The Aliakmon [1986] 1 AC 785 at 815 per Lord Brandon. See also Seale v Perry [1982] VR 193 at 244 per McGarvie J. On the other hand in Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 63 Deane J thought it ‘inappropriate in cases in the less well developed areas of negligence.’.

27. [1970] AC 1004 at 1045. See Stone, Precedent and Law, p 150.

28. See for example Mcloughlin v O'Brian [1983] 1 AC 410 where the difference between the speeches of Lord Wilberforce and Lord Bridges illustrates the way in which the burden has shifted. It is suggested that Lord Wilberforce correctly applied his own principle, even if somewhat narrowly, but that Lord Bridge adopted the foresight test rather too enthusiastically.

29. The principle may also of course be used to restrict existing liabilities if reactionary policy arguments are adopted.

30. See for example Weaver, ‘Is a Theory of Adjudication Possible?’ (1983) 46 MLR 613 at 643.

31. An exception is the judgment of Deane J in Jaensch v coffey (1984) 54 ALR 487 where after discussion he expounded a narrow view of the principle.

34. Scott Group v Mcfarlane [1978] 1 NZLR 553 at 584 per Cooke J.

33. Ibid per Woodhouse J at 573. See also Junior Books v Veitchi [1983] 1 AC 520 at 546 per Lord Roskill.

34. [1982] 1 QB 481 at 488. The case was overruled by The Aliakmon [1986] AC 785.

35. See also Ross v Caunters [1980] Ch 297 at 305 where Megarry V-C declined to follow Robertson v Fleming (1861) 4 Macq 167 on the ground that it was decided 70 years before Donoghue v Stevenson. A contrary view was taken in Seale v Perry [1982] VR 193.

36. [1987] ICR 7. The case concerned an action by a person for whom an unfavourable reference has been given by the defendant to a third party.

37. [1983] 1 AC 10.

38. Dulieu v White [1901] 2 KB 669.

39. Humbrook v Stokes [1925] 1 KB 141.

40. Bourhill v Young [1943] AC 92.

41. Eg Boardman v Sunderson [1964] 1 WLR 1317; King v Phillips [1953] 1 QB 429.

42. (1968) 65 DLR 2d 651.

43. See also Bourhill v Young [1943] AC 92 esp at 117 where liability is excluded towards those who do ‘not possess the customary phlegm’ (Lord Porter).

44. See also Jaensch v Coffey (1984) 54 ALR 417, an equivalent case in the High Court of Australia.

45. [1980] Ch 297.

46. [1970] 2 QB 223.

47. But see Seale v Perry [1982] VR 193 where on similar facts the Supreme Court of Victoria came to a different conclusion after an exhaustive discussion of the authorities.

48. [1980] Ch 297.

49. [1985] AC 210 at 240. See also the clear statement by Lord Keith in Yeun Keun Yeu v A-G for Hong Kong [1987] 2 All ER 705 where he said that ‘in view of the direction in which the law has since been developing, their Lordships consider that for the future it should be recognised that the two stage test in Anns is not to be regarded in all the circumstances as a suitable guide to the existence of a duty of care.’.

50. See for example The Aliakmon [1985] QB 350 at 373 per Oliver LJ (CA) and at [1986] AC 785 at 815 per Lord Brandon; Investors in Industry Ltd v South Bedfordshire DC [1986] 1 All ER 787 at 801 per Slade LJ; Curran v Northern Ireland Co-Ownership Housing Association [1987] 2 All ER 13; Yeun Kun Yeu v A-G for Hong Kong [1987] 2 All ER 705; Candlewood Navigation Corp v Mitsui OSK Lines (The Mineral Transporter) [1986] AC 1 at 21; Business Computers International v Registrar of Companies (1987) Times, 1 July; Banque Kayser v Skandia Insurance [1987] 2 WLR 1300.

51. [1983] 2 AC 509. This is also a case which resiles from Junior Books v Veitchi.

52. [1982] VR 193.

53. Junior Books v Veitchi [1983] AC 520 sidestepped this problem, but see now The Aliakmon [1985] 1 QB 350 per Lord Donaldson MR; Tai Hing Ltd v Liu Chong Hing Bank [1986] AC 80; Southern Water v Carey [1985] 2 All ER 1077.

54. (1985) 60 ALR 1. This case also declined to follow the narrow ratio of Anns.

55. [1983] 1 AC 410 at 443.

56. [1985] 1 QB 350 at 374. See also for example the analytical/policy approach of Lord Diplock in Dorset Yucht Co v Home Office [1970] AC 1004 at 1058.

57. [1981] QB 599 per Stephenson LJ at 616.

58. Grant v Australian Knitting Mills [1936] AC 85 at 104; Jaensch v Coffey (1984) 54 ALR 417 at 443.

59. An example is the statement by Lord Wilberforce in Anns itself: see also The Aliakmon [1985] 1 QB 350 at 374 per Oliver LJ where he uses proximity in the sense of forseeability in fact.

60. Mcloughlin v O'Brian [1983] 1 AC 410 at 420 per Lord Wilberforce.

61. Thomas v Quartermaine (1887) 18 QBD 685 at 688 (‘the duty is that you are bound not to do anything negligently so as to hurt a person near you …’; le Lievre v Gould [1893] 1 QB 491 at 504; Donoghue v Stevenson [1932] AC 562 at 581.

62. (1883) 11 QBD 503.

63. [1978] 1 NZLR 553 at 575.

64. [1983] 1 AC 410 at 433. This view is also espoused by Stone, Precedent and Law (1985) at p 264.

65. (1984) 54 LR 417 at 444. See also his judgment in Huckshaw v Shaw (1984) 56 ALR 417 at 454.

66. Stone, Precedent and Law (1985) pp 263–268. See also Scott Group v McFarlane [1978] 1 NZLR 553 at 574 where Woodhouse J deprecates the use of varying formulae to confine the area of liability.

67. [1964] AC 465.

68. [1973] QB 27 at 45 per Edmund Davies LJ.

69. (1977) 136 CLR 129.

70. The Aliakmon [1986] AC 785; The Mineral Transporter [1986] AC 1.

71. Dulieu v White [1901] 2 KB 669.

72. Mcloughlin v O'Brian [1983] 1 AC 410; however it is suggested that the better test is not foresight alone, but rather the more limited test proposed by Lord Wilberforce. See for example an extension on these lines in Attia v British Gas (1987) Times, 27 June.

73. Eg by Peabody Trust v Sir Lindsay Parkinson [1985] AC 210 and subsequent cases.

74. [1987] 2 All ER 705. The Privy Council supported the views of Gibbs CJ in Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 14.

75. See for example the judgment of Oliver LJ in The Aliakmon [1985] 1 QB 350 at 374 which proceeded on these lines.

76. [1983] 2 NWLR 268 and 302. Glass JA relied on Shaddock v Parramatta (1981) 36 ALR 385 for these views.

77. [1980] Ch 297.

78. This at least was the view of Glass JA in Minister for Environmental Planning v San Sebastian [1983] 2 NSWLR 268 and of Wootten J in BT Australia v Raine and Horne [1983] 3 NSWLR 221 at 227.

79. Caltex Oil has not been accepted in this country; the Mineral Transporter [1987] AC 1 and The Aliakmon [1987] AC 785.

80. [1983] 3 NSWLR 221 at 227.

81. See for example Lord Pearce in Hedley Byrne v Heller [1964] AC 465 at 534, ‘words are more volatile than deeds. They travel fast and far afield.’.