Delict (Scots Law) - The Duty of Care

The Duty of Care

Donoghue v Stevenson (1932), also known as "The Paisley Snail case", is considered to have defined the concept of duty of care. Mrs Donoghue was in a cafe in Paisley where she consumed a bottle of ginger beer which contained a decomposing snail in an opaque bottle.The snail was invisible to the naked eye until the contents of the bottle had been almost completely consumed. Consequently, she suffered serious gastric problems. To whom do we owe a duty of care? Donoghue says that we owe this duty to our neighbours:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and 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 —persons who are so closely and directly 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.” per Lord Atkin at 44 of SC

Since Donoghue v Stevenson, duty of care has been expanded by various cases. One of the most noted cases would be Caparo Industries v Dickman AC 605. It was held in this case that any extension of the circumstances in which a duty of care should be owed should be developed cautiously. This developed a further criterion: is it fair just and reasonable to impose a duty? This new tripartite test was introduced to personal injury cases in Scotland in the case of Gibson v Orr.