Resiling from the Anns Principle: The Variable Nature of Proximity in Negligence
![handle is hein.journals/legstd7 and id is 327 raw text is: Resiling from the Anns principle: 319
Resiling from the Anns principle: the
variable nature of proximity in
negligence
Richard Kidner
Reader in Law, University College of Wales, Aberystwyth
For a number of years there has been considerable criticism of both
Donoghue v Stevenson' and Anns v London Borough of Merton2 on the grounds
that the prima facie duty doctrine which some believe those cases estab-
lished is so wide as to be meaningless and obscures more than it reveals.
This article seeks to show how the courts have come to accept this
criticism and to indicate how the concept of duty should now be viewed.
In particular the point is that there are now different levels of proximity
required to establish a duty in different situations and that while this
means that the various categories of duty must be distinguished from
each other, this does not involve ossification of the law, but rather
development of the law may be made easier by a pragmatic rather than a
conceptual approach. The principle that 'the categories of negligence are
never closed' means both that existing duties may be refined and
extended, and also that new duties may be created. How that can be
done depends on our understanding of the nature of the concept of duty
and how each step should be taken.
In recent years the dominant principle in relation to the creation of
new duties of care has been the Anns principle which was adopted
enthusiastically by the courts as representing a great step forward. It
freed the courts from many of the shackles of the past, and both simpli-
fied the applicable principles and allowed the courts to apply a broader
method of reasoning. While this principle overtly imported policy
elements into the determination of the duty issue, in fact it obscured
more than it revealed, and recently the courts, especially the House of
Lords and the High Court of Australia, have resiled from the Anns
principle, fearing both that the concept is too wide and that too sudden a
change has been made.
The development of the Arms principle
By the Anns principle is meant the statement by Lord Wilberforce4 that,
'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
1. [1932] AC 563.
2. [1978] AC 728.
3. [1932] AC 562 at 619 per Lord MacMillan.
4. [1978] AC 728 at 751.](ViewImageLocal?handle=hein.journals/legstd7&div=29&collection=&method=preview&ext=.png&size=3)
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Resiling from the Anns Principle: The Variable Nature of Proximity in Negligence
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