Lloyd's Maritime and Commercial Law Quarterly
NEGLIGENCE IN THE COMMERCIAL SPHERE
I. J Dawson
Lecturer in Law, University of Newcastle upon Tyne.
It is axiomatic that the English common law develops piecemeal. One result of this is that arguments tend to be advanced and decisions reached by reference to analogous precedents rather than by reference to one or more principles of general import. Another result has been the development of one area of the law separately from another. This is apparent in several areas of commercial law where principles evolved independently of the tort of negligence perhaps because until recently the courts have been unwilling to allow recovery for economic loss. In 1977, however, the House of Lords reformulated that tort in terms of general principle, terms which are well capable of applying to those areas of commercial law referred to above. It is the purpose of this article to consider the extent to which that reformulation has affected some of those areas.
The House of Lords’ decision referred to is, of course, Anns v. Merton London Borough Council in which Lord Wilberforce stated,1
“… the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has ben held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: …”.
What Lord Wilberforce there attempted was not merely the statement of a principle which could draw together the earlier decisions on this branch of the law: the effect of such an attempt would have been of only peripheral importance in deciding cases in the future. What, of course, he attempted was the statement of a principle by which all future cases, in which a want of care was alleged, ought to be decided. It is noteworthy that he did not in terms say that this statement was to be applied only to duty situations previously not covered by authority. Nonetheless, it is in these situations that much reliance has been placed on what his Lordship said: in
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