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

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Law and change: Scottish legal heroes

6 Use of legal sources in the judgments

We have noted, in Section 4, that Lord Atkin was at pains to anchor his neighbour principle to legal precedent which was syllogistic, for he stated that:

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… [emphasis added].

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

To try to find out what the law was, the Lords looked at previous cases. They did not agree about whether the specific question raised by Donoghue had already been decided in these cases, or even which cases might be used as precedents to determine what the law is. They looked at lots of different cases between them, and used different issues to distinguish which cases were most relevant and why.

Figure 7 Illustration of the court proceedings in Donoghue

Whilst Lord Atkin gave the leading judgment, Lords Thankerton and Macmillan made other comments despite agreeing with Atkin’s decision and most of his reasoning. Lord Thankerton’s judgment was quite brief, adding only a couple of points to Lord Atkin’s. Lord Macmillan’s judgment is longer in that he considers some of the issues in detail.

The approaches of Lords Atkin and Buckmaster are summarised below.

Box 2 Lord Atkin’s leading judgment

Lord Atkin felt that there were no authoritative general statements in the cases of the law in relation to when one person owes a duty to another outside of contract. Instead, the courts had dealt with a number of specific situations and relationships between people in previous cases and had tackled and categorised these individually as they came along. Atkin thought that the law should not be pigeonholed into a number of special classes where a duty was owed. Rather, there must be a general principle that applied to all of the cases based on something that was common among them. He based this first on the idea of the law being required to give remedies for obvious social wrongs. He went so far as to suggest he might not apply case law that denied the pursuer a remedy in situations such as Donoghue.

Fortunately, it did not prove necessary for Atkin to disapply precedent case law because he was able to find a general principle in the previous cases upon which the duty of care in negligence is based; in particular Heaven v. Pender. This is the neighbour principle, which he also derived from the broader moral and social imperative to love your neighbour. Atkin thought the cases that had denied a duty of care involved an insufficiently close (or unforeseeable) relationship between the two parties. To reinforce this, Atkin emphasised the legal rule that only the ratio in these cases was binding. Any obiter comments that might deny a duty of care were only persuasive (as they did not form part of the ratio, they were not binding on subsequent cases) and were often drawn too widely.

By this reasoning Atkin was able to distinguish a number of cases that might have been seen as analogous. He claimed that these cases were only about the duty of care under a contract, or fraud (where the manufacturer knew of a product defect), rather than negligence. He also did not think that the law had so far only allowed exceptions to the general rule that there was no duty of care in certain, specific circumstances involving inherently dangerous objects (such as a gun) and physical proximity (where, for example, the person injured was on the property of the person who owed the duty of care). Atkin saw these alleged ‘exceptions’ as examples of a wider concept of negligence, rather than the only instances where a duty was enforced. He was able, as a result, to at least claim he was following the cases rather than introducing a new principle into the common law.

Box 3 Lord Buckmaster's dissenting judgment

Lord Buckmaster adopted an almost completely opposite interpretation of the existing cases to Lord Atkin. Elsewhere he called the reliance on Heaven v Pender a plank in a shipwreck, seized upon by others who sought to extend the law of negligence in the face of other overwhelming authority. He argued that the general rule was that there was no duty of care owed to a third party outside of a contract. The exceptions to this were for objects dangerous in themselves (such as a gun) and defects that were known to the manufacturer (fraud). He then dealt with the very few cases, mainly with obiter statements, which might be seen to support a duty of care in other cases such as that in Donoghue.

While he thought some of these could be used to impose a duty of care on Stevenson, he also considered them contrary to the clear line of decisions and felt they ‘should be buried so securely that their perturbed spirits shall no longer vex the law’ (Donoghue v Stevenson [1932] AC 562, p.577).

He saw those cases where physical proximity was involved as belonging to a clearly different category and argued that the established distinction between dangerous and non-dangerous objects in the case law would be ‘meaningless’ if the duty of care existed all along in both cases. He also said the logical consequences of imposing a duty would extend to all types of objects and to all people who lawfully used them. In this, Buckmaster implied it would not be socially or economically acceptable for manufacturing businesses to be open to claims from such a wide group of people as if a duty was imposed.

These two contradictory interpretations and applications of previous cases raise a number of questions about the process of reasoning used.

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