The end of the affair: duty of care and liability insurance

Abstract

Duty of care is in dire straits. Until recently, Lord Atkin's ‘neighbour principle’ was ‘the very foundation of the law of negligence’. It was a simple, all-purpose test for the existence of a duty of care. However, times have changed. There has been a loss of confidence in the neighbour principle. Its suitability as a general test for duty of care has been questioned, in a way that would have been unthinkable only a decade ago. In 1970, it was still possible to say that the principle ‘ought to apply unless there is some justification or valid explanation for its exclusion’. By 1984, apostasy had set in, and it was said that the principle ‘has long been recognised as not intended to afford a comprehensive definition’ In 1978, Lord Wilberforce attempted to make the principle more workable by marrying it to policy considerations in a two-state test for duty. Even this modified version of the principle has now fallen out of favour. In 1987, it was said of Lord Wilberforce's two-stage test that it ‘is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care.’