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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

Jurisdictions that follow this view must then figure out how to define proximity.

Another interpretation is that proximity is defined by reasonable foreseeability.

This is the official view in Canadian common law.

The reasonable foreseeability test doesn’t require that individual victims be identified, but the general class of victims must be identifiable.

Donoghue v. Stevenson was a case about extending duty of care. It just so happened that it contained the “neighbour principle” as well.

Afterward, courts interpreting it had to decide whether it was just meant to establish a duty of care for manufacturers toward consumers, or whether it established a general principle that could be used in new situations.

The same pattern has been repeated in other cases like Dorset Yacht.

The pattern continues in cases of pure economic loss and psychiatric injury.  

Home Office v. Dorset Yacht Co. Ltd, [1978] A.C. 1004 (H.L.). (CB2p31)




A group of young offenders (“Borstal trainees”) were being held on an island under the supervision of three Borstal officers. The young offenders were not physically enclosed. At night, contrary to orders, the three officers went to sleep. Seven of the young offenders escaped by stealing a yacht, which collided with a yacht belonging to Dorset Yacht Co. It was admitted that the officers were negligent in falling asleep and therefore letting the young offenders escape. (This implies that the officers could have prevented the young offenders from escaping if they had stayed awake, and that it was reasonably foreseeable that the young offenders would cause damage if they escaped.)


Did the Home Office owe any duty of care to prevent the escape of the young offenders toward people whose property would be at risk if they escaped?




Lord Diplock held that one must look to precedent in order to determine whether there is a duty of care. If there is no precedent (as in this case), the judge must choose whether to extend Donoghue v. Stevenson, considering:

1. reasonable foreseeabilty

2. policy (this is new)

Lord Diplock limited the liability of the Home Office to harm caused in the course of the escape, at roughly the same time, in the vicinity of the escape. (This is because the risk is greater in the vicinity of the escape than the risk to the public at large.)

Policy issue—who should bear the loss: Home Office or innocent respondents? I honestly can’t find any strong, radical statements in Diplock’s judgment—I actually think Lord Reid’s judgment might make a clearer statement in favour of policy.


This case shows how the courts have extended Donoghue v. Stevenson to new situations.

cf. Rylands v. Fletcher!

Before the main issue could be decided, there was a preliminary administrative law question. Public authorities can almost never be held liable for acts in their area of discretion (intra vires). In this case, the judges made it clear that they were not assessing any administrative decisions (e.g., the decision to have the young offenders on an island)—they only found negligence in the officers’ decision to go to sleep.


In the 1978 case of Anns v. London Borough of Merton, Lord Wilberorce reframed the neighbour principle in terms of policy. Wilberforce established a two-step analysis:

1. proximity (understood to be equivalent to reasonable foreseeability, and leading to a prima facie duty of care)

This meant that there was a general duty of care, except where it conflicted with…

2. policy (any considerations which ought to reduce or limit duty of care)

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