Expectation Losses, Negligent Omissions and the Tortious Duty of Care

Cambridge Law Journal

Volumn 55, Issue 1, 1996, Pages 43-55

  Murphy, John ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84986049096     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300097725     Document Type: Article

References (30)

1. (1931) 174 N.E. 441.
2. N.E. at 444.
3. [1964] A.C. 465.
4. [1987] A.C. 241.
5. [1993] 3 All E.R. 448.
6. See further on this matter J. Murphy, “An Accident Waiting to Happen?” (1994) 2 Tori Law Review 11.
7. [1995] 2 A.C. 207.
8. [1995] 2 A.C. 145.
9. [1995] 2 AC. 296.
10. [1988] A.C. 175.
11. See e.g. Home Office v. Dorset Yacht Company [1970] A.C. 1004 and
12. Hudson v. Ridge Manufacturing [1957] 2 Q.B. 348. But cf. Topp v. London Country Bus (South West) Ltd. (note 5 above) and Smith v. Littlewoods Organisation Ltd. (note 4 above).
13. See e.g. Goldman v. Hargrove [1967] 1 A.C. 645 and
14. Haynes v. Harwood [1935] 1 K.B. 146.
15. See e.g. Stansbie v. Troman [1948] 2 K.B. 48.
16. See e.g. Mercer v. South Eastern and Chatham Railway Company's Management Committee [1922]
17. Caparo Industries v. Dickman plc. [1990] 2 A.C. 605.
18. [1977] A.C. 774.
19. A.C. at 845. Although the Albazero principle was extended in St. Martin's Property Corporation Ltd. v. Robert McAlpine Ltd. [1994] 1 AC. 85, it was still incapable of dealing with the problem in While v. Jones since the contract would still need to be enforced by the original promisee (who was, of course, dead at the time the loss occurred). As Lord Browne-Wilkinson observed in the St. Martin's case (at 115): “In such a case, it seems to me proper. to treat the parties as having entered into the contract on the footing that [the promisee] would be entitled to enforce contractual rights for the benefit of those who suffered from defective performance but who, under the terms of the contract could not acquire any right to hold [the defendant] liable for any breach”.
20. On which see K. Barker, “Are we up to Expectations? Solicitors, Beneficiaries and the Tort/Contract Divide” (1994) 14 Oxford Journal of Legal Studies 137.
21. Marc Rich & Co. A-G v. Bishop Rock Marine Co. Ltd. The Nicholas H [1995] 3 W.L.R. 227. 27 White v. Jones, note 7 above, at 271.
22. See further K. Barker. “Unreliable Assumptions in the Modern Law of Negligence” (1993) 109 L.Q.R. 461.
23. This requirement was first introduced as a pre-condition of duty in Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210 per Lord Keith at 241. It was technically only approved by three of their Lordships in Caparo: by Lord Jauncey (note 20 above, at 655); by Lord Bridge who recast it as a requirement of being “fair, just and reasonable” (at 618) and by Lord Oliver who merely transposed the word order to insist that it be “just and reasonable” to impose a duty (at 633). The test's significance cannot now be doubted following X v.
24. Bedfordshire County Council [1995] 2 A.C. 633 where it was central to the House of Lords’ decision.
25. [1932] A.C. 562. The centrality of the Atkinian notion of proximity has been recognised overseas in relation the negligent infliction of psychiatric harm.
26. In Rhodes v. Canadian National Railway (1990) 75 D.L.R. (4th) 248
27. for example, Taylor J.A. observed (at 298) that: “someone who suffers psychological injury as a result of being informed of the death of a relative, or of ruminating on the circumstances of the relative's death, or of visiting the scene same days later cannot. be said to have been closely and directly affected by the negligence”. See also Beecham v. Hughes (1988) 52 D.L.R. (4th) 625, which turned upon the fact that the plaintiff's suffering was only indirectly attributable to the defendant's negligence.
28. In Murphy v. Brentwood Dislricl Council [1991] 2 A.C. 398 Lord Keith stated (at 461) his approval of the approach advocated by Brennan J. in Council of the Shire of Sutherland v. Heyman (1985)
29. For an analogy, see Simaan Contracting Co. v. Pilkington Glass [1988] Q.B. 758.
30. As to the virtues of streamlining duty, see J. Murphy, “Negligently Inflicted Psychiatric Harm: A Re-appraisal” (1995) 15 Legal Studies 414.