Negligence, Duty of care The role played by duty of care > ' ... a 'control device' for determining when defendants will (or will not) be placed under a generalised duty to exercise reasonable care in respect of their conduct, and held liable in damages for failing to do so ... ' (Lunney and Oliphant) - Control device: when we have these criteria we are sometimes in the law trying to limit the amount of claims coming through (Close the flood gates(Fear of an open flood gate, this may lead to many people claiming and suing, it's hard for the courts to hear all these small claims which are pointless or trivial)) - By making sure we have this test, between the C and D it means that only things where you have a legal relationship with someone will only go to court > 'The duty of care concept is a device used by courts to keep the scope of the tort of negligence under control for a wide variety of reasons, of 'policy' or 'law'. - Trying to keep the law of negligence under control DOC is the relationship between 2 parties - Usually with a legal relationship - No contract needed, only a DOC test to show there was a legal connection between 2 parties - E.g. a doctor will have a DOC towards their patients, employer may have a DOC to the employees etc Historical Developments, DOC 1) pre-Donoghue: One of the landmark cases in Tort law - Isolated instances where duties existed - The independence of negligence from contract was in doubt - No 'unified' tort of negligence There weren't any rules on how negligence worked, we had elements of it but we didn't have any systematic ways of dealing with it. There were no clear tests 2) Donoghue v Stevenson: Mrs D drank a bottle of ginger beer, poured in a glass and drank it, realised that there was a decomposing snail in the drink which made her ill, she claimed to have suffer shock and gastroenteritis - No contract between the shop and her as she did not buy the bottle, no relationship recognised between both parties, ttrd parties - Lord Atkins judgment: 'Neighbour test'- Those so closely and directly affected that I ought to have them in contemplation - Only applies where there is Proximity: That you ought to have thought about them, that you had some sort of close relationship, does not mean a physical closeness, so she had a relationship with the manufacturer - This case made sure that there was clarity with negligence - However, there was some dissenting (Judges not agreeing with other judges) in the case, He was concerned to prevent privity of contract from being undermined by a developing law of negligence- Those with a relationship in the contract are those who can claim, others cannot The Significance of Donoghue v Stevenson - Independence of tort from contract; tort allowed to operate beyond the limits of contract