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Tort II - Duty of Care I

Updated on August 2, 2017

The modern precept of the duty of care principle was enunciated by Lord Atkins in the landmark case of Donoghue v Stevenson (1932). In the case the plaintiff fell ill after consuming a bottle of ginger-beer purchased on her behalf, that was bottled in an opaque glass bottle and the type of bottle that was used in bottling the ginger-beer prevented the plaintiff from being able to see the contents of the bottle with any amount of clarity or certainty and therefore even if the plaintiff had taken all reasonable steps to ensure that the contents of the bottle were untainted or uncontaminated she would have been unable to do so without purchasing or acquiring the bottle.

Even if the plaintiff had purchased or acquired the bottle and had opened it, whether the contaminant would have been visible or would have been apparent was dependent on the type or nature of the contaminant and some contaminants may be plainly visible and others may not and some may be afloat at the top of the bottle while others may be submerged and found at the bottom of the bottle.

The plaintiff had consumed half the bottle of ginger-beer by pouring the contents of the bottle into a glass and once she’d consumed the first half of the bottle she continued by emptying the rest of the contents of the bottle into the glass and was shocked when she found the remains of a decomposing snail along with the rest of the contents of the bottle.

The plaintiff was struck by a bout of nausea and as result of consuming the ginger beer she suffered from shock and severe gastro-enteritis. The plaintiff sued. The plaintiff argued that the defendant by virtue of being the manufacturer of a consumable product that was made available to the public had a duty to ensure that the product that was manufactured was suitable for consumption. The plaintiff was successful.

The rule that you are to love thy neighbor becomes in law you must not injure your neighbor and in accordance with the principle, the neighbor or my neighbor is someone I can reasonably foresee to be affected by my actions or by my omissions i.e. anyone who is so closely and directly affected by my acts that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the act.

In the case of Donoghue v Stevenson (1932) the defendant’s neighbors are those who would reasonably be affected by his actions or omissions i.e. those that purchase the items that he produces or manufacturers and therefore he must take steps to ensure that that any item that he produces of manufactures does not cause any injury to the consumers that purchase them.

The next question that comes to mind is does a producer or a manufacturer owe a duty of care to all his consumers? The answer in short is yes. A producer or a manufacturer does owe a duty of care to ensure that every item that makes its way into the hands of a consumer, who has obtained it by proper and legal means, will not cause any injury to the user or the consumer. This principle in law is known as the neighborhood principle.

The principle is an extension of the minority decision in the earlier case of Heaven v Pender (1883). The defendant in the case, the owner of a dry dock, supplied the platform for an independent contractor to paint the sides of a ship. While the plaintiff, who was employed by the independent contractor, was standing on the platform that was attached to the ship by ropes on either side and was painting the sides of the ship, one the ropes gave way and the plaintiff was injured.

Upon further inspection, it came to light that the rope was frayed and as a result had given way. The plaintiff sued on the grounds that that the defendant owed a duty of care to ensure that the equipment that he supplied was sound and suitable for the purpose for which the equipment was supplied. However, because there was no contract between the plaintiff and the defendant, the plaintiff brought an action against the defendant in tort.

According to the minority decision in the case whenever a person is in a position with regards to another, where failure to use ordinary care and skill would result in an injury to the other or would cause damage to a property, a duty would arise that would impose upon him the need to use ordinary skill and care. The majority in the case however found in favor of the defendant.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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