Reasonableness and the Common Law
![handle is hein.journals/nilq55 and id is 252 raw text is: 242. Northern Ireland Legal Quarterly [Vol. 55, No. 3]
REASONABLENESS AND THE COMMON LAW
The Right Honourable Lord Hutton
The MacDermott Lecture 2004
It is a great honour for me to give the MacDermott lecture this evening.
When I was called to the Bar of Northern Ireland in 1954 Lord MacDermott
was the Lord Chief Justice and it was an invaluable experience for me and
other young banisters to appear before a judge of such great distinction who
was always exacting but always fair. Listening to Lord MacDermott hearing
a case, whether at first instance or in the Court of Appeal, and to his
questions to counsel, I used to think that his' mind was like the needle of a
compass, as the opposing arguments were advanced and he listened to and
considered the submissions. At first, his mind would swing a little from side
to side but in due course his mind would settle steadily and inexorably on
north, on the correct and just answer in law.
Lord MacDermott was a master of every branch of the law, but some of his
finest judgments related to the law of negligence and it is on that subject that
I would like to speak this evening and in particular on the subject of
reasonableness.
Every law student knows the famous judgment of Lord Atkin in Donaghue v
Stevenson in 1932, in which he stated the fundamental principle of the law of
negligence:
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 into question.
This ,principle has subsequently been applied in thousands of cases
determined by the courts, but one of the fundamental questions relating to the
principle, which has arisen in different forms, is whether a claimant is always
entitled to recover damages if he can prove that the defendant should have
reasonably foreseen that his acts or omissions would be likely to injure him.
Donaghue v Stevenson related to a case where, a manufacturer of a product
sold the product, a bottle of ginger beer, to a consumer who claimed she was
injured by it, because there was a decomposed snail in the bottle, or so it was
pleaded; and in Donaghue v Stevenson it was held that the manufacturer
owed a duty of care to the consumer and at the end of his judgment Lord
Atkin stated that that was a proposition which no ordinary citizen would
doubt because if was in accordance with sound common sense.
But the statement of principle by Lord Atkin was relied on by plaintiffs in
cases far removed from the sale of a product to a consumer, and therefore the
question arose whether Lord Atkin's statement was one of general
application or was subject to qualifications. This question was addressed by
Lord MacDermott in Gallagher v McDowell Ltd [1961] NI 26 which was a](ViewImageLocal?handle=hein.journals/nilq55&div=23&collection=&method=preview&ext=.png&size=3)
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Reasonableness and the Common Law
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