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

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Law and change: Scottish legal heroes

6.1 The place of the neighbour principle in the ratio

Lord Atkin’s ‘neighbour principle’ is a wide-ranging principle that goes beyond the specific facts of the case. So, arguably, it was not part of its legal reasoning. This means it was not necessary to reach the decision that Stevenson owed a duty of care to Donoghue.

We might alternatively argue that even though it is not a strictly legal principle, it was necessary for his decision – we have noted in Section 4 that Lord Atkin deduced it partly from a higher, moral principle. However, the concept of the ratio of a case maintains the fiction that only legal reasoning has been applied.

Although commentators have focused attention on the neighbour principle, it is striking that neither Lord Macmillan nor Lord Thankerton made any reference to the neighbour principle or to anything much like it. Lord Thankerton did state that he entirely agreed with the speech of Lord Atkin and that he could not usefully add anything to it, but was careful to make it clear that this was because of Lord Atkin’s treatment of the English case law (rather than because he had been won over by use of the neighbour principle).

(Donoghue v Stevenson [1932] AC 562, p. 604).

Lord Thankerton’s reasoning was couched in more limited terms. Lord Macmillan came a little closer to the neighbour principle in the closing passages of his speech:

In the present case the respondent, when he manufactured his ginger beer, had directly in contemplation that it would be consumed by members of the public. Can it be said that he could not be expected as a reasonable man to foresee that if he conducted his process of manufacture carelessly he might injure those whom he expected and desired to consume his ginger-beer?

(Donoghue v Stevenson [1932] AC 562, p. 620)

However, this is not the neighbour principle in the form advocated by Lord Atkin and applied in later cases. What is significant is that Lord Macmillan opened the doors to a general duty of care.

The principle that a duty of care exists where a person reasonably foresees that his acts or omissions will be likely to result in damage to another is a more restricted answer to the lawyer’s question than that found in the Gospels.

Activity 5 asks you to think about how you may develop your own legal argument.

Activity 5 Write your own legal argument

Timing: (Allow about 20 minutes)

Using the facts set out below, write your own legal argument as to why the pursuer should succeed in the case against the surveyor (the defender). You should try and keep you argument to 100 words.

Alex Campian (defender) was asked to survey and value a house that Shelia Stewart was wanting to purchase. Shelia Stewart told Alex Campian that she needed to raise a mortgage in the region of £150,000 and that the bank was insisting that the house have a value of more than £180,000. The survey took place and the report valued the house at £250,000. As the survey was for the mortgage valuation, the contract of survey was between Alex Campian and the mortgage company. The mortgage company paid the surveyor’s fee; not Sheila Stewart. Relying on this report Sheila Stewart decided to go ahead with the purchase at that price, but later discovered that at the time of the valuation it was only really worth £200,000 as substantial repairs were necessary to make the building safe to live in. She incurred, therefore, a financial loss of £50,000.

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Comment

There is no one precise correct answer.

One way of putting it might be: a valuer should foresee that a person relying on its accuracy might be harmed if reasonable care is not taken in compiling the report and is liable to that person for any losses they incur.

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