Many duties of care - Or a duty of care? Notes from the underground

Oxford Journal of Legal Studies

Volumn 26, Issue 3, 2006, Pages 449-472

  Howarth, David ^a  

^a CLARE COLLEGE   (United Kingdom)

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EID: 33748876001     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql014     Document Type: Article

References (100)

1. The answer is allegedly 70, at least in 1991 - see B. Rudden, 'Torticles' (1991/2) 6&7 Tulane Civil Law Forum 105.
2. N. McBride, 'Duties of Care - Do they really exist?' (2004) 24 OJLS 417.
3. Oliver Wendell Holmes, Jr, 'The Path of the Law' (1897) 10 Harvard L Rev 457.
4. [1973] 1 WLR 1.
5. [2002] UKHL 22, [2003] 1 AC 32.
6. 3] 1 AC 32.
7. [2000] 1 AC 360.
8. Wesley N. Hohfeld, 'Fundamental Legal Conceptions as Applied in Judicial Reasoning II' (1917) 23 Yale LJ
9. [1990] 2 AC 605 at 616-17.
10. See David Howarth, Textbook on Tort (1995) at 157-331
11. and 'The Duty of Care' in A. Grubb (ed.), The Law of Tort (2001) at 503-88.
12. Cf. Jane Stapleton, 'Duty of Care Factors: A Selection from the Judicial Menus' in Peter Cane and Jane Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (1998) 59.
13. In contrast, Roderick Bagshaw and Nicholas McBride, Tort Law (2001) at 33-161 cover few of these points.
14. White [or Frost] v Chief Constable of South Yorkshire [1999] 2 AC 455
15. MacFarlane v Tayside Health Board [2000] 2 AC 59
16. Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530
17. [2001] 3 All ER 97.
18. Patrick Atiyah, The Damages Lottery (Hart, 1997) at 31-95.
19. [1978] AC 728.
20. [1932] AC 562.
21. J. Stapleton, 'Duty of Care and Economic Loss: A Wider Agenda' (1991) 107 LQR 249.
22. The approach of the second edition (N. McBride and R. Bagshaw, Tort Law (Longman, 2005)) is slightly different, but still includes bailees, occupiers, employers, carriers, parents and teachers.
23. See Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd [1985] AC 210 (no duty because Parliament did not intend to protect economic interests of developers in the Public Health Act 1936)
24. and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (specifically the case of plaintiff Harrison, in which there was no liability for psychiatric illness caused by witnessing injury to two of the plaintiff's brothers because there was no evidence that he had had a particularly close relationship with them).
25. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
26. See also White [or Frost] v Chief Constable of South Yorkshire [1999] 2 AC 455.
27. For an official view, see the remarks of Baroness Ashton in the House of Commons Constitutional Affairs Committee's Report on The Compensation Culture, HC 754-II (10 March 2006) at 53.
28. See ibid at 45.
29. See Lon Fuller, The Morality of Law (2nd edn, 1969).
30. White [or Frost] v Chief Constable of South Yorkshire [1999] 2 AC 455.
31. MacFarlane v Tayside Health Board [2000] 2 AC 59.
32. [1989] AC 53.
33. Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H [1994] 1 WLR 1071 ('did the [defendant's] carelessness cause direct physical loss' [emphasis added]).
34. See, e.g. The Sivand [1998] 2 Lloyd's Rep 97.
35. See also Lord Rodger of Earlsferry in the Scottish case Simmons v British Steel plc [2004] UKHL 20 at para 67.
36. As he says in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 ' The second category of cases relied upon by the plaintiffs concerns the question of whether the plaintiff's voluntary action in attempting to extricate himself from some financial predicament in which the defendant has landed him negatives the causal connection between the defendant's breach of duty and the subsequent loss. These cases are not concerned with the scope of the defendant's duty of care. They are all cases in which the reasonably foreseeable consequences of the plaintiff's predicament are plainly within the scope of the duty. The question is rather whether the loss can be said to be a consequence of the plaintiff being placed in that predicament. The principle which they apply is that a plaintiff's reasonable attempt to cope with the consequences of the defendant's breach of duty does not negative the causal connection between that breach of duty and the ultimate loss.'
37. Compare Aneco Reinsurance Underwriting Ltd (In Liquidation)v Johnson & Higgins Ltd [2001] UKHL 51,
38. [2002] 1 Lloyd's Rep 157
39. Reeves v Metropolitan Police Commissioner [2000] 1 AC 360
40. and Swinney v Chief Constable of the Northumbria Police [1997] QB 464, which express the same point of view in different language: That assumption of liability overcomes objections to liability based on 'proximity'.
41. [1991] 1 AC 398.
42. [1951] AC 850.
43. [1953] AC 643.
44. Hill v Chief Constable of West Yorkshire Police [1989] AC 53
45. Murphy v Brentwood District Council [1991] 1 AC 398.
46. E.g. in Jolley v London Borough of Sutton [1998] 1 WLR 1546 ('other factors have to be considered in deciding whether a given probability of injury generates a duty to take steps to eliminate the risk').
47. This view is encouraged by Clerk & Lindsell (19th edn, 2006) para 2-88,
48. (but see the necessary corrective in para 2-89)-see, e.g. Clarke v Crew (1999) 149 NLJ 899
49. The Times 14 June, 1999
50. Roberts v Bettany [2001] EWCA Civ 109
51. Barings plc v Coopers & Lybrand [2003] EWHC 1319.
52. For a previous round of the same process, see, e.g. Knightley v Johns [1982] 1 All ER 851.
53. See, e.g. Lord Oliver in Caparo Industries plc v Dickman [1990] 2 AC 605 at 633.
54. [1969] 1 QB 428.
55. Torts (Interference with Goods) Act 1977.
56. [2004] UKHL 41
57. aff'g [2002] EWCA Civ 724
58. [2003] QB 356.
59. Some take the view that Afshar is not about factual causation at all because, they claim, the but-for test was satisfied. This cannot be right. As Lord Bingham says in the opening paragraph of his speech, 'My Lords, the central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor's negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?' In other words it was not clear what amounted to satisfying the but-for test-never having the operation or having it at a later date. The underlying problem is that many analysts forget what the 'but-for' in the but-for test refers to. The question is what would have happened but-for the breach of duty, not what would have happened but-for some other event, and the only way to apply the test is to ask what would have happened if the defendant had acted properly, not what would have happened if any other event had taken place. But-for causation is intimately connected to fault. Even 'factual causation' in law has a normative element.
60. See, e.g. S. Shavell, 'Causation and Tort Liability' in P. Newman (ed.), The New Palgrave Dictionary of Economics and the Law (2002).
61. See, e.g. the 'no reflective loss' principle of Johnson v Gore-Wood & Co [2002] 2 AC 1.
62. In French law, for example, the right to recover personal property that has been lost or stolen lasts three years, after which recovery is possible only against people who have acquired the property in bad faith. Civ. 1re, 7 févr. 1989:
63. Bull. civ. I no. 57
64. RTD Civ. 1990. 109, obs. Zenati
65. See also Paris, 22 mars 1983: Gaz. Pal. 1983. 1. Somm 207 (both concerning Code Civil art. 2279).
66. Cf. Guido Calabresi and Alvin K. Klevorick, 'Four Tests for Liability in Torts' (1985) 14 Journal of Legal Studies 585.
67. Most notably in Donoghue v Stevenson [1932] AC 562 and
68. Palsgraf v Long Island Railroad Co 284 NY 339
69. 162 NE 99 (1928).
70. See, e.g. Kapfunde v Abbey National Plc [1999] ICR 1 per Millett LJ.
71. See also White v Jones [1995] 2 AC 207 per Lord Browne-Wilkinson
72. and Attia v British Gas plc [1988] 1 QB 304 per Lord Bingham.
73. Phillips v Britannia Hygenic Laundry Co [1923] 2 KB 832.
74. That is not to say that prior relationships are never relevant in negligence. Like assumptions of responsibility they can overcome an otherwise decisive argument against allowing the claimant the benefit of the duty of care. But they operate as explanations for exceptions to rules, not as rules themselves.
75. Donoghue v Stevenson [1932] AC 562.
76. In passing one might remark that even McBride seems reluctant to defend the relational view outright. His reluctance takes the form of excising all mention of it in the quotations he provides from the writings of alleged 'cynics', so making them sound as if they are making points quite different from the ones they are making, (and, moreover, points that are quite obviously wrong, such as the belief that we cannot have duties to people we have not met). For example in the following quotation from an alleged cynic, (Howarth above n 9 at 158). McBride (at p. 433) leaves out the words in italics: 'The artificiality arises largely because the language of duty, at least in relation to duties that are said to be owed to other people rather than impersonal duties merely to behave in a particular way, sounds unnatural in the absence of a pre-existing relationship between the people involved in the dispute. One might say that to make a promise creates a duty to carry out what was promised and that to fail to do so involves a breach of a pre-existing obligation. In that case the duty forms part of a relationship between the people concerned. But to say that I breached an obligation to the complete stranger that I ran over in the street seems to presuppose a degree of intimacy with the stranger that simply did not exist. The only natural sense of duty in these circumstances is a strictly impersonal one in which there is a duty to behave properly with regard to the whole world, not to any particular person. But, as we shall see, negligence law allegedly does not deal in impersonal duties, but in "duties" to specific people. The consequence is that the "duties" that negligence law alleges that defendants owe to specific plaintiffs are fictional duties, duties invented after the fact to justify a certain legal result rather than obligations that would be recognized as such by tort defendants at the time of their alleged tortious conduct.' It will be observed that the original passage is defending the view that the duty of care is impersonal, a view more compatible with ultra-idealism than with cynicism, and it is defending that view against the relational view, not against the view that the duty of care is not a 'real' duty. The 'fictional' duties are the specific paucital person-to-person duties, not the duty to take reasonable care itself.
77. See the discussion in G. Viney and P. Jourdain, Traité de droit civil: Les Conditions de la Responsabilité (2nd edn, 1998) at 318-20.
78. [1995] 2 AC 296.
79. [2001] 2 AC 619.
80. See also Sir Thomas Bingham MR's dissent in the Court of Appeal in M (a minor) v Newham London Borough Council and X (Minors) v Bedfordshire County Council [1994] 4 All ER 602.
81. See, e.g. Lord Hoffmann in Jolley v London Borough of Sutton [1998] 1 WLR 1546 where he refers to 'other factors have to be considered in deciding whether a given probability of injury generates a duty to take steps to eliminate the risk.' The idea of foreseeability 'generating' a 'duty' is a familiar one, but it is inherently confusing. The duty is to act reasonably given both the risk and the costs.
82. See McBride, above n 2 at 435, n 61.
83. Guido Calabresi and A. Douglas Melamed, 'Property Rules, Liability Rules, and Inalienability: One View of the Cathedral' (1972) 85 Harvard L Rev 1089.
84. They are options even in the technical sense used in the financial world. See the extraordinary article by Madeline Morris, 'The Structure of Entitlements' (1993) 78 Cornell L Rev 822
85. and Ian Ayres, 'Protecting Entitlements with Puts' (1998) 32 Valparaiso University L Rev 793.
86. E.g. Ian Ayres and Eric Talley, 'Solomonic Bargaining: Dividing A Legal Entitlement To Facilitate Coasean Trade' (1995) 104 Yale L J 1027
87. Ian Ayres and Eric Talley, 'Distinguishing Between Consensual and Nonconsensual Advantages of Liability Rules' (1995) 105 Yale L J 235.
88. See, e.g Ian Ayres and Jack Balkin, 'Legal Entitlements as Auctions: Property Rules, Liability Rules, and Beyond' (1997) 106 Yale L J 703.
89. See especially Richard Epstein, 'A Clear View of the Cathedral: The Dominance of Property Rules' (1997) 106 Yale L J 2091.
90. See also, e.g. James Krier and Stewart Schwab, 'Property Rules and Liability Rules: The Cathedral in Another Light' (1995) 70 New York University L Rev 440
91. and Louis Kaplow and Steven Shavell, 'Property Rules Versus Liability Rules: An Economic Analysis' (1996) 109 Harvard L Rev 713 (although Kaplow and Shavell are utilitarians with libertarian leanings rather than straightforward libertarians).
92. For a rough calculation see 'Towards a Guilt-Free Society' Times Literary Supplement 5 June 1998, pp. 11-12.
93. The unexpectedly powerful deterrent effect of tort law is confirmed by J. David Cummins, Richard Phillips and Mary Weiss, 'The Incentive Effects of No-Fault Automobile Insurance' (2001) 44 Journal of Law and Economics 427. Tort law's incentives, it seems, are transmitted by the insurance system, not, as previously believed, extinguished by it.
94. Viz. Simon Deakin and Bob Hepple.
95. See Richard Epstein, 'A Farewell to Pragmatism' (2004) 71 University of Chicago L Rev 675.
96. See e.g. Richard Epstein, 'A Theory of Strict Liability' (1973) 2 Journal of Legal Studies 151.
97. See Arthur Ripstein, 'The Division of Responsibility and the Law of Tort' (2004) 72 Fordham L Rev 1811.
98. See e.g. Equality, Responsibility and the Law (1999).
99. George Fletcher, 'Fairness and Utility in Tort Theory' (1972) 85 Harvard L Rev 537.
100. Gregory Keating 'Rawlsian Fairness and Regime Choice in the Law of Accidents' (2004) 72 Fordham L Rev. 1857.