The Neighbourhood Principle

Has The Neighbourhood Principle failed? My neighbour asked me if he could use my rightfulnessnmower and I told him of course he could, so long as he didnt pass it out of my garden. 1 This is the archetype which most wad tend to associate the word neighbour with. However, in the court room, the word makes a decisive transform away from this traditional meaning and endeavours to establish to whom a common police force craft of c atomic number 18 is owed. The virtue has expanded considerably by the onset of the concept of prognosticateable plaintiffs which is almost 80 years in existence in the UK.It is evasive in determine whether propinquity should forthwith be deferenceed as a discrete analytical concept around which arguments whitethorn be constructed, or merely as a slippery expression reflective of the fairness, justice and intellect of imposing a transaction of sustainment upon the suspect in the light of the nature of his relationship with the claimant. 2 This e ssay sets out to establish whether the neighbour tenet was successful or if it has fallen short and where, it ordain present court decisions, statutes and constitutional provisions assumption(p) to this area of law.In articulating what was meant by the neighbour formula, headmaster Atkin famously stated the following proposition The regularisation that you must love your neighbour becomes in law you must not injure your neighbour and attorneys question, who is my neighbour? receives a restricted reply. You must take tenable cautiousness to avoid acts or omissions 1 2 Eric Morecombe (English comedian, 1926-84) Hartst angiotensin converting enzyme, J. , Confusion, contradiction and chaos indoors the House of Lords post Caparo v. Dickman, (2008) 16 civil wrong L Rev 8 which you arouse pretty foresee would be liable to injure your neighbour?The state seems to be persons who are so closely and instantaneously affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 3 His definition was to become the foundation stone of ulterior themes involving negligence and was, in collectable course, accepted as the first definitive test of when a debt instrument of care was owed. 4 Atkins statement has given rise to frequently discussion. At first, some displayed fidget at the very wide and flexible harm in which it was propounded 56.It is important to remark that this neighbour doctrine formed part of the ratio decidendi of Atkins shrewdness but that it cannot be said that it is the ratio decidendi of his decision. For although twain Lord Thankerton and Lord Macmillan contemplated the addition of new duties to the law of negligence, neither of them attempted to formulate the principle or principles upon which this might be done. Nor is the generalising approach of the neighbour principle appropriate to the criminal law, where p recision and certainty are all-important. 7 As a consequence of the Donaghue v.Stevenson 1932 sequel in the UK, the people were given a potentiality remedy to take against the providers of consumer products even where no privity take in charge had been in existence between the 3 4 Ibid at 580 Connolly, U. , Tort Law, (Second Audition, Thomson Reuters (Professional) Ireland Limited, Dublin, 2009) at 16 5 Smith v. Howdens Ltd 1953 N. I. 137 per Lord MacDermott C. J. 6 capital of the United Kingdom Graving Dock Co. Ltd. v. Horton 1951 A. C. 736 7 Heuston, R. F. V. , Salmond on the Law of Torts, seventeenth edition, (Sweet & Maxwell, London, 1977) at 198 complainant and the individual or attach to tortfeasors.If the proviso for ascertaining that a duty of care was met, hence such individuals could bring negligence claims in every situation. The dictum was accepted into Irish law in Kirby v. burke 1944. 8 The decision in this result stands on the boundaries of actionable negligence ,9 and does not fence nor purport to give guidance on the obligations arising from already distinguished duties, or in occurrence, recognisable relationships e. g. that of resident and visitor. 10 Sometimes the extra duty can subsist contemporaneously with the Atkinian duty,11 but sometimes it dis ships it. 2 Duties may be divided into those owed to someone else i. e. if it was oblige for the clear of that someone else13 and duties owed to no one in particular i. e. if it was not oblige for the benefit of a particular individual but was imposed for the benefit of the community as a wholly or for the benefit of some section of the community. 14 In an ever conscious society, there was much need for the modernisation of the law with regard to the wider duties and specially the neighbourhood principle. The Anns v.Merton15 case brought about the two-stage test in order to ascertain 8 9 Kirby v. Burke 1944 I. R. 207 Smith v. Howdens Ltd. 1953 N. I. 131, 137, per Lord MacDermott C . J. 10 Smith v. Scott 1973 Ch. 314 11 Commissioners for Railways v. McDermott 1967 A. C. 1054 12 Commissioners for Railways v. Quinlan 1964 A. C. 1054 13 Bagshaw, R. and McBride, N. , Tort Law, (Pearson culture Limited, Essex, 2001) at 3 14 Ibid at 3 15 Anns. v. Merton London Borough Council 1978 A. C. 728 the existence of a duty of care in negligence.Lord Wilberforce initiated the requirement of I. II. A ample relationship of propinquity based upon foreseeability16 And secondly, the rescue of reasons as to why a duty of care should not exist. In 1990, concerns arose with regard to the duty of care. 17 Lord link and Oliver in Caparo sought to destroy any temptation on the part of the practitioners to glance law of proximity as a discrete intelligent concept capable of precise application to the dissolver of legitimate disputes. Instead, encouragement was given to view proximity in descriptive terms rather than as a definitive concept. 18 This time a three-stage test was i ntroduced to establish a duty of care I. II. III. Foreseeability of damage was required, A relationship characterised by neighbourhood19 And that it would be fair, just and honest to impose a duty which would benefit the other party. The Caparo tripartite approach do no reference to the concept of insurance. Instead, Lord Bridge spoke only in terms of a duty of care being imposed where the 16 17 18 Ibid at 741 Caparo Industries Plc v. Dickman 1990 2 A. C. 605 Op cit 2 as per judgment of Lord Atkin Caparo v.Dickman (2008) 16 Tort L Rev Caparo v. Dickman (2008) 16 Tort L Rev 8Lawbook Co. at 13 8Lawbook Co. at 13 19 court considered that it would be fair, just and reasonable to do so. 20 It is also interesting to score that a two-part test is now in place in certain jurisdictions, e. g. New Zealand, for novel fact circumstances where the finding of a duty now has to be balanced against applicable policy matters. 21 The two-step test established in Donaghue22 and subsequent develope d in Anns23 was that accepted by the Irish courts until 2002 until the decision of Glencar Exploration Plc v.Mayo County Council 2002. 24 This case pronounced the adaptation of a two-step test which gave precession to the incrementalist approach25 that was being applied in the English courts at the time. Implications of the decision in this case make by the Supreme Court became clamant in the case of Fletcher v. Commissioners of Public Works. 26 A plaintiff who suffered reasonably foreseeable psychiatric injury, which had resulted from the suspects negligence towards him as his employer, was denied the damages awarded to him by the Supreme Court on policy grounds. 27 This new approach is much more sympathetic. Since 2005, proximity has once again come to the fore with regards to decisions made by the House, some of their Lordships have adopted it as a central analytical tool for disposing of appeals. 28 Thus, the notion that this principle of 20 21 22 23 24 25 26 27 28 Ibid at 13 Scott Group Ltd. v. McFarlane 1978 1 N. Z. L. R. 553 Op cit. 4 Op Cit 19 Glencar Exploration Plc v. Mayo County Council 2002 1 I. R. 84 Class notes on Negligence authored by Connolly, U. , distributed by Hackett. C. Fletcher v.Commissioners of Public Works in Ireland 2003 2 I. R. 465 Byrne & Binchy, Annual Review of Tort Law, (2003) at 526 Op cit 26 at 13 proximity could have been designate to the dignity of being a concept in its own right29 originated. It is subsequently ill-defined now as to whether it should be regarded as a discrete analytical concept around which arguments may be constructed, or merely as a slippery expression reflective of the fairness, justice and sense of imposing a duty of care upon the defendant in the light of the nature of his relationship with the claimant. 30 To bring to a close, the term neighbour and proximity clearly have a much wider recitation physical proximity, causal proximity or then the denotation of a healthy relationship. Furthermo re, if this test is satisfied, it is then up to the court to decide whether any policy reasons (or otherwise) exist so as not to intromit a duty of care in that particular case. The elusiveness of how this dictum is interpreted may never be resolved. It is the application of policy to novel situations of what is fair, just and reasonable that has instigated the advancement of the neighbour principle.In other fields of law, the broader legal concepts of reasonableness and unconscionability are applied every day. The courts are in a state of uncertainty with regard to the dictum. It is evident that the law has had to expand considerably. So perhaps, in the future, the test of fair, just and reasonable as displayed in the Glencar31 case will be triumphant due to its conversion of the practical, everyday test for negligence into the legal test. Despite having its flaws, it still makes the law comprehensible to all. 29 30 31 Ibid at 13 Ibid at 13 Op cit 34