1. Whats it all about?
1. Whats it all about?
Raymond Wacks Understanding Jurisprudence
https://doi-org.salford.idm.oclc.org/10.1093/he/9780198864677.003.0001Published in print:26 November 2020
Published online:September 2021
1.5
p. 8
Is eating people wrong?
A popular launching pad for the comprehension of legal ideas is Lon Fullers entertaining hypothetical Case of the Speluncean Explorers.24It contains five judgments of the Supreme Court of Newgarth in the year 4300. Four members of the Speluncean Society were trapped in an underground cave. Huge efforts were made to rescue them, at a major financial and human cost (ten lives had been lost). On the twentieth day of their ordeal the ill-fated explorers decided that they could avoid death by starvation before they could be rescued only if they killed and ate one of their number. It was proposed by Roger Whetmore, one of the explorers, that they should cast dice to determine who should be eaten. After considerable vacillation, this was accepted, whereupon Whetmore declared that he withdrew from the agreement. The others nevertheless decided to proceed, and one of them cast the dice on Whetmores behalf. The throw went against him, and he was duly killed and eaten. The survivors were eventually rescued, and charged with murder.
Each of the five judges adopts a different approach and conclusion to the case. And, not unlike judges in the real world, each emerges as a distinct personality. The Chief Justice, Truepenny, is a self-important formalist. Keen J is an unyielding positivist. Tatting J is indecisive and rather tortured. Handy J is an arch-realist. Foster J adopts a purposive vision of law, a thinly disguised version of Fullers own position.25The import of each of these positions will become clearer when you have studied the various theories embodied in each of these judicial positions. It would therefore not be a bad idea to return to the Spelunceans when you have completed your study of natural law, positivism, and realism in the following chapters of this book.
The central issue confronted in the case is the extent to which conflicting legally protected values (human lives) can be reconciled. This dilemma provides a vehicle for Fullers deeper belief concerning the very nature of legal theory, for, as he points out, the case was constructed for the sole purpose of bringing into common focus certain divergent philosophies of law and government [which] presented men with live questions of choice in the days of Plato and Aristotle and which are among the permanent problems of the human race.26Hence, as Professor Twining shows, the case reveals the Fullerian perspective of jurisprudential enquiry. He boils it down to the following sorts of questions:27p. 9
1.
Is it ever morally(a)
justifiable
(b)
excusable
to kill and eat a human being?
2.
Whether or not it ismorallyjustifiable or excusable, is itlegallyjustifiable to kill and eat a human being in order to save ones life? Alternatively, is necessity a defence to the charge of murder?
3.
What is the connection, if any, between 1 and 2?
4.
What is the proper role of an appellate judge in deciding a difficult case on a question of law? How does this differ from the role of other officials?
5.
What kind of reasons are admissible, valid, and cogent in(a)
reaching
(b)
justifying
a judicial decision in a hard case? What is the relationship between (a) and (b)? In particular, should public opinion be taken into account in reaching and justifying such decisions? Do (a) citizens (b) judges owe an indefeasible duty of fidelity to the law?
Three of the judges in the case accept that Whetmores killing was, to some extent, defensible. Keen J appears to regard it as entirely justifiable. The somewhat gauche Tatting J is uncertain of the morality of the defendants actions. Truepenny CJ and Keen J conclude that the defendants were, despite the circumstances, guilty of murder. Handy and Foster JJ would overturn the conviction. Tatting J finds the case too difficult, and withdraws. As a result, the court is split and the conviction of the defendants is upheld.
Truepenny CJ and Keen J justify their decisions by focusing on what they conceive to be the clear language of the legislature. Tatting J prefers to rely on precedent and analogy. Foster J naturally appeals to the purpose of the law, which he regards as at variance with the statute. Handy rests his decision on common sense supported by articulated public opinion. The most significant and instructive contrast is, I think, between the standpoints of Handy and Foster JJ. The former is a realist who conceives of the law as a matter of practical politics. He enjoys belittling Foster Js efforts to defend a middle ground between politics and formalism.28The contest between Handy and Foster exposes the nerve of Fullers own equivocation about realism (see Chapter6). It reveals his conviction that law cannot be considered as either is or ought: normative or descriptive. Hence Handy J holds that government is a human affair and bemoans the propensity to analyse a situation until all the life and juice have gone out of it and we have left a handful of dust. He
p. 10
urges an awareness of substance, popular will, and practical politics. Nevertheless, he acknowledges that substance is inadequate; there is frequently a need for form.
You will almost certainly be expected to read the Speluncean Explorers in full. It provides, for many teachers of legal theory, an entertaining and valuable means of introducing their students to a number of the fundamental concerns of the subject, including the relationship between law and morality; legal positivism and natural law; the nature of the judicial function; the interpretation of statutes; the relationship between adjudication and legislation; the connection between law, democracy, and public opinion; whether law has a purpose; the concepts of justice and injustice; the process of legal reasoning, and many more. The case has retained its piquancy and relevance for more than half a century, and will, I believe, continue to do so for many more generations of students.
SPELUNCEAN EXPLORERS
Summary of judicial opinions
Judge Key points Decision
Chief Justice Truepenny
positivist Statute must be applied by judiciary as it stands and personal opinion is irrelevant
A Pardon or (Clemency) is for theexecutive to decide upon not the judiciary
The court should petition to Chief Executive for clemency Affirms convictions but recommends clemency
Justice Foster
Natural law Defendants were in a "state of nature" and thus Newgarth's laws did not apply. The laws of nature would supersede legislation permitting the cave explorers to agree to sacrifice one life to save the other four
However, if the laws of Newgarth apply, then a purposive approach must be taken to the statute (what was intended by the legislators when they made the law). Judges would be able to find an exception to the law, Courts withself-defence.
Other main objectives of the criminal law deterrence and rehabilitation could not be achieved by convicting the defendants. Sets aside convictions
Justice Tatting
positivist Critical of Justice Foster's approach
The natural law under the "state of nature" prioritises freedom of contract above the right to life, which according to Tatting is absurd
Unable to reach a decision in this case because of competing legal reasoning and emotions. The explorers acted wilfully. Considers that both perspectives (acquittal and conviction) have equally strong arguments and he cannot decide.
Recuses himself
Justice Keen
positivist Critical of Chief Justice's proposed appeal to Executive for clemency due to separation of powers; The exception in favour of self-defence applies to cases of resisting an aggressive threat to the partys own life. This case does not fall within the exception, as Whetmore made no such threat.
Moral considerations are irrelevant when applying the statute Affirms convictions
Justice Handy
realist Conscious of public opinion: the legitimacy of the judiciary derives from reflecting the will of the people.
Court should take account of public opinion and take a "common sense" approach
90% of the public want the men to face a lesser punishment or be acquitted.
. Sets aside convictions
RvBlaue[1975] 1 WLR 1411, Court of Appeal
Jonathan Herring Essential Cases: Criminal Law
https://doi-org.salford.idm.oclc.org/10.1093/he/9780191995774.003.0008Published in print:01 September 2021
Published online:September 2021
Abstract
Essential Cases: Criminal Lawprovides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision inR v Blaue[1975] 1 WLR 1411, Court of Appeal. The document also included supporting commentary from author Jonathan Herring.
Keywords
actus reushomicideJehovahs Witnessmanslaughterthin skullFull case judgment:The reported judgment, cited as [1975]1WLR1411, is available from the ICLR. Alternatively, you can view the full judgment for this case, cited as [1975] EWCA Crim 3, on the open-access BAILII website,http://www.bailii.org/ew/cases/EWCA/Crim/1975/3.htmlOther perspectives:Use the Law Trove search tools to read other author
Facts
RonaldBlauewas convicted of the manslaughter of Jacolyn Woodhead on the grounds of diminished responsibility, wounding with intent to do grievous bodily harm, and indecent assault. He appealed against the conviction for manslaughter.
Woodhead was aged 18 and a devout Jehovahs Witness. The defendant came into her house and asked for sex, which she refused. He attacked her with a knife, inflicting four serious wounds, including one that pierced her lung. She was taken to hospital, and the doctor determined that she needed surgery and that she needed a blood transfusion, without which she would die. Woodhead refused to have one, explaining that it was contrary to her beliefs as a Jehovahs Witness. She died. The prosecution accepted that, had the victim had a blood transfusion, she would have survived.
The trial judge urged the jury to apply their common sense to the issue and told them that they would be entitled to reach the conclusion that the defendants stab wound was an operating cause of death. They convicted the defendant and he appealed.
Decision
Counsel for the appellant relied on two primary arguments to criticize the direction of the judge: the first was that the unreasonable conduct of the victim should break the chain of causation; the second was that the judge should have left the question of causation completely to the jury.
On the first question, the proposal of the appellants counsel, that the jury should consider whether or not the victims response was reasonable, was flawed for two reasons. The first related to how the jury was to decide whether the victim was being unreasonable. As Lawton LJ put it: At once the question arisesreasonable by whose standards? Those of Jehovahs Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? As he explained, the danger would be that two cases with the same facts could be viewed differently depending on the observers attitudes towards religion.
Second, the Court of Appeal confirmed a key principle: [T]hose who use violence on other people must take their victims as they find them. This means not only the victim in their physical state, but also the whole person. As a result, [i]t does not lie in the mouth of the assailant to say that his victims religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable.
The jury were consequently perfectly entitled to conclude as they did and there was no valid objection to the trial judges direction.
Comment
This case is typically used as the leading authority on the thin skull rule, as it is commonly knownthat is, that the defendants must take victims as they find them and cannot complain about the victims unusual physical, or religious, or psychological states nor about the failure of the victim to receive treatment. This case develops this principle in two ways: first, it is clear that the principle is not limited to physical vulnerabilities of the victim, but extends to the whole person, including their religious beliefs; and second, there is no room to claim that the victim making decisions in accordance with their religion or personality is acting unreasonably or unforeseeably. The defendant must take the victim as they are, however unusual or unreasonable other people may find the victim to be.
Opponents of the case argue that it is unfair that a defendant is held to have caused a result that they could not have foreseen. In the vast majority of cases, if a defendant had stabbed a victim in the way that the defendant had, the victim would have received a blood transfusion and survived. Should the defendant suffer a manslaughter conviction because, by chance, his victim had a particular religious belief? Supporters will reply that if you stab someone, you can never know what the outcome will be. It was no thanks to the defendant that the victim reached hospital and treatment became an option.
Wider Questions
A major issue left unresolved by this case is whether it is limited to cases in which the victim fails to act and lets the defendants wound develop or whether it can be used in cases in which the defendant performs an act that introduces a new cause. For example, what would happen if the defendant were to rape a victim whose religion teaches her that she must commit suicide because she has been raped and she does so? Lawton LJs emphasis on the fact that the death was medically caused by the stab wound, rather than by anything the victim had done, may suggest that it does not apply in such a case.
A second issue is whether the case can be used where the victim is acting out of a clearly disreputable motive. For example, if the victim refuses treatment out of spite or to make a political point, does the principle still apply? It seems that it does, because the Court of Appeal made it clear that it saw the unreasonableness approach as unacceptable. It would become very difficult for the courts to distinguish cases in which a victim refused treatment on religious grounds and those in which they relied on non-religious reasons. It is hard to see the courts being tempted to go down that road.
A third question is what the theoretical basis for the law on causation is. Complex academic opinions have been mooted. These include an approach asking whether the result was the reasonably foreseeable consequences of the defendants act; or whether the result was a natural consequence of the defendants acts. However, the courts seem to take the view that causation questions involve a mixture of moral, public policy, and jurisprudence questions. The law cannot be reduced to a single theory, but involves a balance of different factors.
Oxford University Press 2023
Carlill v Carbolic Smoke Ball Co.[1893] 1 QB 256
Nicola Jackson Essential Cases: Contract Law
https://doi-org.salford.idm.oclc.org/10.1093/he/9780191995682.003.0003Published in print:01 September 2023
Published online:August 2023
Abstract
Essential Cases: Contract Lawprovides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision inCarlill v Carbolic Smoke Ball Co.[1893] 1 QB 256. The document also includes supporting commentary from author Nicola Jackson.
Keywords
offer and acceptanceunilateral contractsCarbolic Smoke Ballnotification of acceptancecontractual intentconsiderationFull case judgment:The reported judgment, cited as [1893] 1 QB 256, is available from the ICLR. Alternatively, you can view the full judgment for this case, cited as [1892] EWCA Civ 1, on the open access BAILII website,http://www.bailii.org/ew/cases/EWCA/Civ/1892/1.htmlOther perspectives:Use the Law Trove search tools to read other authors accounts and commentaries on this case.
Facts
The defendant company placed an advertisement promoting their product, the carbolic smoke ball. The company declared that it would pay 100 to anyone who caught influenza after buying and using the smoke ball three times a day for two weeks, in accordance with directions. In the advert the company declared that it had deposited 1,000 with its bank, just to show that it was being sincere. The claimant, Mrs Carlill, purchased a carbolic smoke ball, used it in accordance with the instructions, and caught influenza. She claimed the 100. The company refused to make the payment, arguing that it was not under a contractual obligation to do so.
Decision
The Court of Appeal held that the advertisement constituted an offer. This had been accepted by Mrs Carlill, as she had performed the conditions stated in the offer. The contract was supported by consideration. Accordingly, the company was bound to make the payment. The company argued that the advert lacked the certainty required to constitute a binding offer. It was a mere advertising puff. The Court of Appeal unanimously rejected this argument. The advert contained a clear express promise to pay 100 to anyone who bought a smoke ball and used it in accordance with instructions, and who then caught influenza within a reasonable time (or whilst using it (Bowen LJ)). The advert also demonstrated a serious contractual intent by the depositing of 1,000:perLindley LJ relying onWilliams v Carwardine(1833) 5 C & P 566, 172 ER 1101.
The company also argued that Mrs Carlill had not sufficiently notified them of her acceptance. As you will see from other cases (Entores Ltd v Miles Far East Corp[1955] 2 QB 327;Adams v Lindsell(1818) 1 B & Ald 681, 106 ER 250 (KB);Holwell Securities Ltd v Hughes[1974] 1 WLR 155), it is a fundamental principle of Contract Law that acceptance must be notified to the offeror. The Court of Appeal held that Mrs Carlill had sufficiently notified her acceptance by fulfilling the conditions set out in the advert. In the circumstances it was not necessary for her to communicate her acceptance by any further action than this:perLindley LJ, relying onBrogden v Metropolitan Railway Co.(1877) LR 2 App Cas 666 (HL), at p.691. It might also be said that the company had waived its right to be notified. The company could not have expected everyone who would potentially claim the reward to notify them of the fact:perBowen LJ.
Another argument that the company raised was that the advert purported to be a contract with the whole world, and as such, was void on the grounds that you cannot contract with everybody:perBowen LJ. This was rejected. The offer might have been made to the whole world, but the contract was made only with the individual who came forward and fulfilled the conditions of the offer: Bowen LJ.
Comment
A remarkable feature ofCarlillis how deeply it embodies the fundamental principles of contract formation: Lord Neuberger of Abbotsbury, Reflections on the ICLR top fifteen cases (2016)Construction Law Journal149.
Firstly, whether an advert is construed as an offer or an invitation to treat very much depends on the context of the advert and its construction against surrounding circumstances. In this case, Bowen LJ showed that an advertisement promising to pay money in return for providing particular information could be construed as an offer. On the other hand, adverts which offered goods for sale or houses to let areprima facieinvitations to treat, e.g.Partridge v Crittenden[1968] 1 WLR 1204. With advertisements for goods, there is a limited supply of goods. It would not make commercial sense for the advertiser to become contractually bound by a high number of possible acceptances over which he had no control. InCarlill, the Court of Appeal were unimpressed by the suggestion that the companys advert would, if construed as an offer, lead to an unworkably high level of acceptances. Perhaps this could be seen as an early form of consumer protection: if a person chooses to make extravagant promises of this kind he probably does so because it pays him to make them:perBowen LJ.
Secondly, it had been argued that even if there was an offer and an acceptance, it was unsupported by consideration. However, the Court of Appeal found that Mrs Carlill had provided consideration for the 100 reward. To critically evaluate the case, it is necessary to ask:Was this consistent with fundamental principles of Contract Law or was the Court of Appeal simply avoiding an injustice to Mrs Carlill?The idea of requiring consideration before a contract can be enforced reflects the idea that a contract is a bargain: P.S. Atiyah,An Introduction to the Law of Contract(5th edition, Oxford University Press, 2000), at p.118. Atiyah here observes that a promise should only become binding if there is some benefit promised or given in return, or the promisee acts to their detriment in reliance on the promise. Note the element of reciprocity. What is given in return for the 100 must have been requested by the company as the price of their promise to pay that reward. The Court of Appeal identified a benefit in the fact that Mrs Carlill used the smoke ball and in the fact that the conditions laid down in the advert would promote sales of the ball. By complying with the conditions in the advert as to the use of the smoke ball, Mrs Carlill suffered inconvenience over and above its purchase. Thus, although this would have no direct economic value, it would certainly confer a benefit. This is consistent with cases on consideration such asChappell & Co. Ltd v Nestle Co. Ltd[1960] AC 87 (HL). Both this benefit and detriment had been requested by the company, as conditions of the 100 reward, and had sufficient transactional certainty.
Wider questions
How accurate do you think it would be to state that this situation would arise today, given the modern regulation of such extravagant claims?
Carlillis remarkable in that it is an enduring example of the fundamental principles of contract formation: Lord Neuberger of Abbotsbury, Reflections on the ICLR top fifteen cases (2016)Construction Law Journal149. However, do you think it could be said that the notions of offer, acceptance, and consideration were stretched in order to protect Mrs Carlills reliance on the promises made by the companys advertisement? Throughout its history, there are many examples of the way in which the law protects one persons reliance on the promise of another. To further develop this idea, see P.S. Atiyah,The Rise and Fall of Freedom of Contract(Oxford University Press, 1979, 2000).
Pharmaceutical Society of Great Britain vBootsCashChemists(Southern) Ltd[1953] 1 QB 401
Nicola Jackson Essential Cases: Contract Law
https://doi-org.salford.idm.oclc.org/10.1093/he/9780191995682.003.0011Published in print:01 September 2023
Published online:August 2023
Abstract
Essential Cases: Contract Lawprovides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision inPharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd[1953] 1 QB 401. The document also includes supporting commentary from author Nicola Jackson.
Keywords
offer and acceptanceinvitation to treatdisplayshopregistered pharmacistFull case judgment:The reported judgment, cited as [1953] 1 QB 401, is available from the ICLR. Alternately, you can view the full judgment for this case, cited as [1953] EWCA Civ 6, on the open access BAILII website,http://www.bailii.org/ew/cases/EWCA/Civ/1953/6.htmlThis case has also been reported under the following citation, [1953] 1 All ER 482.
Other perspectives:Use the Law Trove search tools to read other authors accounts and commentaries on this case.
Facts
The appellants had a duty at this time to enforce the provisions of Parts I and II of the Pharmacy and Poisons Act 1933. Part of this included the regulation of registered pharmacists on premises such as the respondents. It was a requirement of the Act that when certain drugs were sold, i.e. ones containing a small amount of poison, that sale had to be under the supervision of a registered pharmacist. The legal question in this case was therefore when a sale of these products could be said to have taken place on the respondents premises. The branch shop was an open-plan room in which goods and packages were displayed. It was self-service so that customers could walk around the various departments and select the articles they wished to purchase. They were given a basket at the point of entry into the shop and, when they finished selecting, they would take the items to one of the tills at the exit. In this case, two women customers selected packages that happened to contain a small amount of poison. These were regulated items. The registered pharmacists supervision was only exercised at the till, when the money was handed over. If the contract with the customer was formed when they were walking around the shop taking items off the shelves, then the supervision would come too late.
Decision
A contract is formed when there is an unambiguous offer, which is accepted by the person to whom it is addressed. The Court of Appeal unanimously held that the correct construction of the situation was that the display of the articles in the shop was only an invitation for customers to walk around and choose the articles they want. It was not a binding offer. The customers, in presenting their selected items to the cashier at the till, were making an offer to buy the items. The cashier then accepted this offer and concluded the transaction. The supervision of the registered pharmacist therefore came at the right time, because he was supervising at the till. He was in a position to prevent the sale if he thought it to be unsuitable.
Comment
This was clearly the most common sense construction of the situation. The alternative construction, the one put forward by the Society, would mean that the customer could insist on purchasing a product merely by picking it up:perRomer LJ. This is clearly not the way self-service shops are intended to work. Also, once the customer had taken the item off the shelf then this would technically conclude the contract and they would be obligated to purchase. They would be unable to change their mind and choose something that they liked better:perSomervell LJ.
This case is consistent with other cases on offer and acceptance. For example, when an advert is placed in a periodical, it is presumptively construed in the same way; not as an offer but as an invitation to the prospective customer to make an offer. A binding contract would come into being when the person placing the advert accepts the offer: See, for example,Partridge v Crittenden[1968] 1 WLR 1204. Otherwise, the person who placed the advert could be bound potentially by an unlimited number of contracts.
Wider questions
Whilst it is important to consider the practicalities and common sense of the legal questions and rules, it is also important to consider whether the rules are being applied internally consistently. This provides a good ground for critically evaluating a case. An offer is generally a communication that a person intends to be bound, without more, should the offer be accepted by the person to whom it is addressed. Consequently, the terms of the communication must be sufficiently certain. An acceptance is an unqualified agreement to the terms of the offer:Carlill v Carbolic Smoke Ball Co.[1893] 1 QB 256. The intention to be bound is assessed objectively, in accordance with what impression the external appearances would give to an objective reasonable bystander:Centrovincial Estates plc v Merchant Investors Assurance Company Ltd[1983] Com LR 158. Imagine that you were deciding the case ofPharmaceutical Society of Great Britain. How would you construe the behaviour of the customers at that branch shop, i.e. do you think that the display of items satisfied the earlier definition of an offer, and the customers removal of the items (putting them in their basket) an acceptance? In accordance with the usual practice in self-service shops, it is highly arguable that, to the bystander, average customers would not consider themselves bound to pay until they reached the till. If they chose an item and then two seconds later they put it back, handed back the basket and walked out of the shop, no reasonable person would think that the parties would intend for the customer to be sued for breach of contract. The reasonable bystander, knowing that it is accepted that a customer can change their mind and put the item back, would consider that the items were put in the basket in this speculative sense only. They would not consider this action to be an unambiguous acceptance of terms. It is perhaps less clear whether the reasonable bystander would think that the display of items on the shelves demonstrated a willingness to be bound, without more. However, given that the only possible action of acceptance would then be the customers, it could not reasonably be thought that the shop would consider itself bound to sell as soon as the customer had presented the money. For various reasons, shops need to retain the power to refuse a sale.
Donoghue v Stevenson[1932] AC 562
InEssential Cases: Tort Law (6th edn) Craig Purshousehttps://doi-org.salford.idm.oclc.org/10.1093/he/9780191995736.003.0001Published in Print
01 September 2023
Published Online:
August 2023
Full case judgment:The reported judgment, cited as [1932] AC 562, is available from the ICLR. Alternatively, you can view the full judgment for this case, cited as [1932] UKHL 100, on the open-access BAILII website,http://www.bailii.org/uk/cases/UKHL/1932/100.htmlOther perspectives:Use the Law Trove search tools to read other authors accounts and commentaries on this case.
Facts
MrsDonoghuevisited a caf in Paisley with a friend. Her friend ordered a bottle of ginger beer for her. The drink was in an opaque glass bottle and was manufactured by the defendant, Stevenson. After MrsDonoghuehad drank some of the ginger beer, her friend poured what was left into a tumbler. The remains of a decomposed snail floated out with the ginger beer. MrsDonoghuesuffered shock and gastroenteritis because of this.
As it was her friend who had bought the drink, MrsDonoghuecould not bring a contractual claim against the retailer. Instead, she sued the manufacturer in tort. A preliminary point of law was referred to the House of Lords on whether these facts could give rise to a claim.
Decision
The House of Lords, by a bare majority, found in MrsDonoghuesfavour and sent the case back for trial. Decided on the basis that Scots and English law was the same, the majority (Lord Atkin, Lord Thankerton, and Lord Macmillan) held that a manufacturer of goods owes a duty to the consumer of the product to take reasonable care that it does not contain defects likely to cause damage to the person or property. It had previously been thought, in the words of Lord Atkin, that English law only recognized liability for careless behaviour in a number of separate situations where the case can be referred to some particular species [of negligence] which has been examined and classified: seeWinterbottom v Wright(1842) 10 M & W 109. This view was reflected in the dissenting speech of Lord Buckmaster (with whom Lord Tomlin agreed) when he stated that although the common law is capable of application to meet new conditions not contemplated when the law was laid down, these principles cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit. He believed that the only duty attaching to a manufacturer of food was that implied by contract or imposed by statute and, as such, the authorities were against MrsDonoghue.
Lord Atkins judgment was broader than that of other judges in the majority. He believed that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. Although liability in negligence is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay, this would be too broad: acts or omissions that any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In developing the relevant legal principle, Lord Akin stated:
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to bepersons 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.
Comment
Donoghuev Stevensonis one of the most important cases in negligence. The House of Lords rejected the idea that the defendants liability is entirely governed by his or her contractual arrangements (sometimes called the privity fallacy) and recognized a new duty of care in negligence: that between a manufacturer and the ultimate consumer of goods. As well as recognizing that [t]he categories of negligence are never closed (per Lord Macmillan), the case is significant for the protection it provides to consumers of goods.
While the contrary approach of Lord Buckmaster in his dissenting judgment would have the advantage of certainty, it would result in unfairness to those who are injured but cannot demonstrate that their case falls within a category of duty that has previously been recognized by the courts. It would mean that the law could not adapt itself to the changing circumstances of life (per Lord Macmillan) and the common law would become ossified.
But it is Lord Atkins neighbour principle that, whatever his intention, has become the most notorious aspect of the decision. If the neighbour principle is simply interpreted as a rhetorical flourish then the case would still be of historical significance. However, Lord Atkins judgment could be interpreted as laying down a universal test to determine when a duty of care is owed inallcases. The neighbour principle is broad enough to be interpreted as imposing a duty of care whenever someone foreseeably causes damage through their carelessness. As such, it is very expansive.
Wider questions
Do you think Lord Atkin intended to create a universal test for determining whether a defendant owes a duty of care in all negligence cases? When the tort of negligence went through an expansionary period in the 1970s and 1980s, Lord Atkins dicta was interpreted in this way. InAnns v Merton BC[1978] AC 728, Lord Wilberforce created a two-stage test for determining whether a duty of care was owed. First, one asks whether there is a sufficient relationship of proximity or neighbourhood such that carelessness on the defendants part may be likely to cause damage to the latter. If so, aprima facieduty of care arises and the burden is then on the defendant to show that policy reasons exist which should negate the duty. This approach led to an expansion of liability in tort and the courts have since retreated from this viewsee Morgan (2006) 22 PN 206.
Oxford University Press 2023
