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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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4 The House of Lords’ decision

The judges in the House of Lords who sat in Donoghue were split three to two in their decision. As noted in Week 4, the majority (the ones that allowed Mrs Donoghue’s appeal) were all, or considered themselves to be, Celtic (two Scottish and one Welsh). Lord Buckmaster, who had served as Lord Chancellor and who was resolutely English, delivered the leading dissenting judgment. It was read to the House by the other dissenting judge, Lord Tomlin, who was also English and delivered a short judgment largely fully concurring with Lord Buckmaster.

For the majority, Lord Atkin expounded the neighbour principle. In laying down this principle he said this:

‘The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which 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 this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s 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 be – persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

(Donoghue v Stevenson [1932] AC 562, p. 44)

You can see how syllogistic reasoning is used here.

  • First (major) premise – you must take reasonable care to avoid acts or omission which may injure your neighbour.
  • Second (minor) premise – your neighbour is a person whom you can reasonably foresee is one closely and directly affected by your acts.
  • Conclusion – a manufacturer should reasonably foresee that a consumer might be harmed if it does not take care in production to do or omit anything which might harm a consumer.

This conclusion creates a legal principle in which a duty is owed by a broad range of persons, to a wide-ranging class of persons in numerous situations.

Whilst it is uncontroversial that the case firmly established that under the delict of negligence a duty of care can be owed in the absence of a contractual relationship, more controversial is the scope of the persons to whom that duty of care is owed. Some of this difficulty is compounded by the different approaches to that principle in each of the judgments.