Why Is An AC 562 Still Important To The Law Of Negligence?

To what extent is the decision in Donoghue v Stevenson [1932] AC 562 still important to the duty of care in the law of negligence?

Introduction Donoghue is a landmark case that can be said to be the beginning of the modern tort of negligence. This was where the test on when duties of care will arise, also known as the ‘neighbour’ principle, was first established. Firstly, the essay will briefly discuss the situation prior to Donoghue, it will then explain Donoghue and how it altered the state of affairs through the introduction of the ‘neighbour’ test. It will then observe the development of the ‘neighbour’ principle into the dominant modern ‘general’ test established in Caparo. We see while the basic ‘neighbour’ test of Donoghue is no

Duties used to only exist between certain specific relationships such as an occupier and his visitors or a doctor and his patient. This was also known as the situation-by-situation approach, and was an extremely restrictive view on the tort of negligence as claims made had to fulfil very specific criteria such as those above. What Donoghue did could be described as a widening of an older existing category which unified the tort of negligence.

The growth in the law of the tort of negligence, prior to Donoghue was severely stunted. Donoghue established the ‘neighbour’ principle in which one ‘must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour’. This caused the moving away from a situation-by-situation approach into a more ‘general’ approach. The introduction of the ‘neighbour’ test in Donoghue indicated a move to a more ‘general’ approach in which a duty of care could be established by satisfying a general test instead of sharing specific relationships. This was an extremely vital point in the history of the field of duty of care and allowed it to spread into new situations releasing it from the heavy restrictions of the past. It was also extremely crucial as it gave potential claimants a degree of predictability on whether their

Incrementalism can be described as development of the law founded on analogies to similar factual situations considered in previous cases. This position was first seen in the Australian case of Sutherland. While some critics originally considered it to be a rejection to the concept of a duty of care, we see from case law today that it works together with the Caparo test to form the basis of the law of negligence today.

Though the approach seems sensible, we see from the case The Nicholas H why it should not be the sole method to answer the duty question. In The Nicholas H, the House of Lords rejected the utility of the approach as it would have meant that just because a case has no clear precedent governing it, it would be rejected without the consideration of its merits and is inherently unfair. Hence by relying solely on the ‘incremental by analogy’ approach, the tort of negligence would face the reverse problem experience during the expansionist period as new, novel cases would not be