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Discuss The Extent To Which Public Servants Owe A Duty Of Care Under The Tort Of Negligence

2565 words - 10 pages

IntroductionThe tort of negligence was established by the House of Lords in Donoghue v Stevenson [1932]. In this case the claimant’s friend ordered a bottle of ginger beer for the claimant. The ginger beer was contained in an opaque bottle. Having drunk some of the ginger beer, the claimant poured the remainder into her glass. As she did so, the remains of a decomposed snail fell out. The claimant became ill and sued the manufacturer of the ginger beer. The House of Lords held that manufacturers owe a duty of care to the consumers of their products and that a consumer can sue a manufacturer if he or she is harmed or injured due to the manufacturer’s negligence. In order to make a successful claim under the tort of negligence the claimant must therefore establish three things. Firstly, that the defendant owed the claimant a duty of care. Secondly, that the defendant breached the duty i.e. he or she was negligent Finally, the claimant must establish that he or she suffered loss or harm as a result of the negligence.An individual that has suffered harm as a consequence of the negligence of a public servant e.g. the police, the fire service, the ambulance service etc. will not succeed under the tort of negligence unless the public servant owed the claimant a duty of care. The purpose of this essay is to discuss the extent to which public servants owe a duty of care to members of the public.The Duty of CareIn Donoghue v Stevenson [1932] Lord Atkin explained that ‘you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour’ (Macintyre 2005 pg. 347). He defined the term ‘neighbour’ as persons closely and directly affected by your acts and omissions. Under the neighbourhood test a defendant owed a duty of care if the claimant would be ‘closely and directly’ affected by the defendant’s actions and if the defendant ought to reasonably foresee that his failure to take care might cause the claimant harm (Macintyre 2005 pg 347). In Anns v Merton LBC [1978] Lord Wilberforce developed the test created by Lord Atkin in Donoghue v Stevenson [1932]. Lord Wilberforce’s formulation became known as the ‘Two Stage Test’ (Giliker and Beckwith 2004 pg 31). A duty of care would be owed if there is a sufficient relationship of ‘proximity or neighbourhood’ between the claimant and defendant so that the defendant can reasonably foresee that negligence on his part would be likely to harm the claimant and if there are no policy considerations that would justify denying a duty of care in such circumstances. In subsequent cases the courts sought to limit the imposition of a duty of care. For example, in Murphy v Brentwood DC [1990] the House of Lords expressed concern about the ‘potentially extensive liability permitted’ under the two stage test (Giliker and Beckwith 2004 pg 33). Their Lordships overruled the decision in Anns v...

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