Neighbour Principle and other tests to determine the tort

The essential elements of a tort are already discussed. In this article the landmark judgments stating various tests for determining an act to be a tort are discussed.

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Donoghue v Stevenson established the “neighbour principle” which is used to determine whether or not the defendant owes a duty of care. The application of this test is based on whether or not a particular situation may be construed as one requiring a duty of care.

Caparo v Dickman provided a clearer application of the neighbour principle.

It defined the principle as requiring three elements in establishing duty of care:

a) reasonable foresight of harm;

b) sufficient proximity of relationship; and

c) that it needs to be fair, just and reasonable to impose a duty.

Caparo test will only be applied in situations where it may not be clear whether there is an established duty of care.

In order to determine whether the breach of duty of care exists, the courts will apply a two-part test:

a) the court will consider how the defendant should have behaved in that particular situation, and,

b) whether the defendant’s behaviour fulfilled the required standard of care.

In the case of Blyth v Birmingham Waterworks [1856] 11 Exch 781 it was established that the defendant must meet the standard of “the reasonable person”. This is an objective test that questions what a reasonable person would have done in that particular situation.

Any damages suffered by the claimant need to be a direct result of the breach of duty of care. If the defendant’s breach of duty has caused the loss to the claimant, then the causation is present. The principle of causation was considered in the case of Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where it was held that although the defendant had breached a duty of care, this breach had not caused the death of the deceased.

In order to establish whether causation is present in the case, the courts will apply the “but for” test. This test asks “but for the defendant’s breach of duty, would the harm to the claimant have occurred?”:

a) If the answer is yes, then the claimant has failed to establish causation.

b) However, if the answer is no then causation is satisfied.

However, the case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 established that where there is more than one possible cause of the injury to the claimant, causation can be established if it can be shown that the defendant’s action is the likely cause of the harm. This case established that it is enough to show that the defendant’s negligence “materially contributed to the harm” to the claimant.

McGhee v National Coal Board [1973] 1 WLR 1 further modified the “but for” test by adding that the claimant only needs to establish the defendant’s negligence by proving that the defendant “materially contributed to the risk of harm” to the claimant.

The case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No. 1) [1961] AC 388 established the commonly applied test of remoteness which determines whether the damages suffered by the claimant are too remote. It considers whether the damage suffered is of such kind that the reasonable person would have foreseen it.

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