WHS for Health and Safety Committees – NSW Edition
Lesson 1 – Topic 3: Duty of Care
All persons have a Duty of Care to do what is reasonable and practicable to avoid harm to themselves and others. This is clearly stated under the duties of workers in the previous topic.
It is important to understand that WHS duties under the WHS Act can NOT be delegated. For example:
A Director may hire a Safety Manager who will be given certain corporate functions and responsibilities. The Director, however, will still have the same WHS duties and accountabilities as before hiring the Safety Manager.
So where does this Duty of Care come from? Let’s go back to a town called Paisley in Scotland. A dead snail was found in a bottle of ginger beer and caused food poisoning to a consumer.
The Snail in the Bottle
Donoghue v. Stevenson 1932
This is a famous court case which has influenced our notion of Duty of Care and established a test for when someone owes someone else a duty to take care not to harm them – the Neighbour Principle.
What happened?
Miss May Donoghue went to the Wellmeadow Cafe in Paisley Scotland, where she bought an ice cream and ginger beer.
She poured some ginger beer onto the ice cream and then she consumed some. Then she poured some more ginger beer from the bottle and decomposed snail floated out. May Donoghue became ill and was hospitalized.
She wanted to sue, but who was responsible?
The storekeeper was not at fault as the bottle was sealed and opaque, so it was impossible to detect the snail before it floated out.
The snail most likely entered the bottle at the manufacturer’s premises and was sealed in.
While a right to sue in these circumstances seems obvious today, it was not so in May Donoghue’s time.
For her to win, she had to establish that Mr Stevenson owed her a legal duty, even though there was no contract between them. Initially, the case was dismissed as the common law did not recognize such duty. Then, May Donoghue escalated the case to the House of Lords where the case was decided in her favour.
Lord Atkin, a different judge who presided over this case, commenced by noting that, although the incident was relatively trivial, the legal principle at stake was not. He then articulated the general common law principle for a duty of care.
The rule that you are to love your neighbour becomes in law: You must not injure your neighbour.
So who then in law, is my neighbour? The answer seems to be:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
In this judgement, Lord Atkin formulates what is commonly known as the “neighbour principle”. It is seen as one of the most influential common law decisions of the 20th century and has affected how safety laws are designed and enforced.
The case of Donoghue v. Stevenson 1932 established the modern law of negligence, laying the foundations of the Duty of Care principle.
