All content is free to use and download as I believe in an open internet that supports sharing knowledge. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. The foregoing, it may be added, is comparable to the way John Bell speaks of the “political” aspects of the judicial role as involving the function of “giving direction to society” (John Bell, Policy Arguments in Judicial Decisions (Clarendon Press, 1983) at 6-7). This new test searched for a duty of care based on proximity of the two parties, rather than basing it upon previous cases. Moreover, Lord Wilberforce famously outlined his two-stage test for a duty of care: (1) proximity, and (2) policy. 74. 7. See, e.g., Dworkin, Law’s Empire, supra note 1 at 228-39. That is, overwhelming magnitude relative to the resources available to the judicial system. 60. This privacy policy is subject to change without notice and was last updated on 6th August 2018. 47. Lord Wilberforce's two stage test: 1. It is essential to distinguish in this regard between moderate and extreme views associated (correctly or not) with the label “legal realism”. The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. 42. See Mitchell v Glasgow City Council [2009] 3 All ER 205. For a recent account of legal reasoning with a focus on coherence, see Amaya, Amalia, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (Hart, 2015). In Ann v Merton London Borough, Lord Wilberforce proposed an extension of the situations where a duty of care would exist, arguing there was no longer necessary to find a precedent with similar facts. The test set out by Donoghue v Stevenson was simplified with the case of Anns v Merton. 40. 29. 70. Elsewhere Dworkin adverts to a concern about “the ‘flood’ of litigation” and “[c]ongestion in the courts” (Dworkin, Law’s Empire, supra note 1 at 28). See, e.g., somewhat different senses of “principle” and “policy” referred to in Christian Witting, “Tort Law, Policy and the High Court of Australia” (2007) 31:2 Melb U L Rev 569 at 571-73. See related comment by Lord Roskill in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539. 1. 77. Anns v Merton London Borough Council [1978] AC 728 House of Lords The claimants were tenants in a block of flats. See Greenawalt, supra note 21 at 1004-05 (noting the legislature’s lack of time or political interest to engage itself in establishing rights for every area of the common law). Anns v Merton showed a test for determining the duty of care in the tort of negligence by the two stage test and shows the English courts willingness to provide for claims in negligence for pure economic loss. Ibid at 955. 64. 8. a fear of floodgates opening]—certainly not sufficiently to deprive this plaintiff of just compensation for the reasonably foreseeable damage done to her” (Lord Russell in McLoughlin v O’Brian, supra note 55 at 429); “It would surely be wrong to exclude from probation a claim which is so strongly based, merely because of anxiety about the possible effect of the decision upon other cases where the proximity may be less strong” (Lord Fraser in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 533); “I see no reason why, if it be just that the law should henceforth accord that remedy, that remedy should be denied simply because it will, in consequence of this particular development, become available to many rather than to few” (Lord Roskill, Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539). Ibid at 88, 113. Email your librarian or administrator to recommend adding this journal to your organisation's collection. 85. 30. Levy comes to this conclusion on doctrinal grounds through an analysis of American case law, whereas here it is founded on theoretical grounds and is not jurisdiction-specific. Previously, the courts had used the neighbour test to justify new areas of liability, where there were policy reasons for creating them. There should, therefore, be a (rebuttable) presumption against judicial resort to it. See, for example, at 240-44, Dworkin’s illustration of how Hercules would go about the facts of McLoughlin v O’Brian, where Dworkin discards some candidate interpretations of the law as ineligible on the above ground. I thank the participants and audiences in these fora—and particularly Maks Del Mar, Luís Duarte d’Almeida, Kenneth Ehrenberg, Steve Hedley, Briain Jansen, Tsachi Keren-Paz, Dimitrios Kyritsis, Dorota Leczykiewicz, Haris Psarras, Nick Sage, Lawrence Sager, Fábio Shecaira, and Richard Walters—for helpful comments and questions. See also the High Court of Australia’s comments in Sullivan v Moody (2001) 207 CLR 562 at para 49. In 1990, in Murphy v Brentwood District Council, the House of Lords invoked the 1966 Practice Statement to overrule Anns and retreated from the widening of the potential for liability. for the two-stage test of Anns v Merton London Borough Council [1978] AC * Lecturer in Law, The University of Durham. A similar point finds expression in Neil MacCormick’s rhetorical question: “Is it not relevant to ask what will be the outcome if it be ruled that all who engage in activities which may cause nonphysical damage to other persons owe to those at risk a duty to take reasonable care, and an obligation of reparation if they cause such economic loss by failure to take reasonable care?” (DN MacCormick, “Dworkin as Pre-Benthamite” (1978) 87:4 Philosophical Rev 585 at 595). 23. Published online by Cambridge University Press: URL: /core/journals/canadian-journal-of-law-and-jurisprudence. If you have any questions feel free to contact me directly here: [email protected]. 19. For example, Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539; R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1 at paras 127-28. The jurisprudential thesis is Dworkin’s rights thesis. Ibid at 31. But the intended scope of my analysis remains civil law. Though rights of this kind may, of course, feature in an argument of principle—for example an argument of principle which advocates anti-discrimination legislation through an appeal to the right to equality (see, e.g., ibid at 82). Control of Exemption Clauses (Common Law), Passing of Title under Void and Voidable Contracts, Unit 5: Negligence and occupier’s liability, Unit 6: Private nuisance and Rylands v. Fletcher. Cf George Christie’s remark that the desire to limit discretion (in the manner he specifies and associates with the rule of law) “is certainly one of the major attractions of the resort to principle” (Christie, supra note 26 at 540). Whether its decision is conceived of as demarcating the scope of the duty or, following Goldberg and Zipursky, as determining whether to grant an exemption from the duty—see John Goldberg & Benjamin Zipursky, “The Restatement (Third) and the Place of Duty in Negligence Law” (2001) 54 Vand L Rev 657. Two clarifications: (1) The qualifier “characteristically” in the above formulation of the thesis refers to how cases are decided, not to how they should be decided. 13. It should be established that there is sufficient proximity between D & C for damage to be a foreseeable possibility of any act or omission. Anns v Merton London Borough Council [1978] AC 728 Case summary . (2) The thesis, as stated above, refers to civil cases. Donoghue v Stevenson We are not responsible for republished content from this blog on other blogs or websites without our permission. 43. The House of Lords agreed that manufacturers owed a duty of care to the end consumer of their products. 5. A similar solution has been advocated by Marin Levy regarding what she calls “court-centred floodgates arguments” in a methodical work on the floodgates argument in US adjudication (Marin K Levy, “Judging the Flood of Litigation” (2013) 80 U Chi L Rev 1007, esp at 1072). Abstract views reflect the number of visits to the article landing page. By “moderate”, on the other hand, I mean a range of positions denying that legal doctrine, rules, and principles determine alone judicial decisions, but acknowledging that they contribute to those decisions along with other factors, such as the judge’s political orientation, ideological outlook, and social background. 46. See also at 541. Was there a relationship of proximity between claimant and defendant? Negligence is essentially concerned with compensating people who have suffered damage as a result of the carelessness of others, but the law does not provide a remedy for everyone who suffers in this way. This is unless there is any reasons for the defendant to not be liable, such as policy reasons including floodgates or taxpayer money. 58. Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 at 532 (Lord Fraser citing in connection with the floodgates argument Cardozo CJ’s famous warning against introducing “liability in an indeterminate amount for an indeterminate time to an indeterminate class” in Ultramares Corporation v Touche (1931) 174 NE 441 at 444); Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785 at 816 (Lord Brandon referring to a policy concern “to avoid the opening of the floodgates so as to expose a person guilty of want of care to unlimited liability to an indefinite number of other persons whose contractual rights have been adversely affected by such want of care”); White, supra note 8 at 33 (Lord Steyn referring to “a burden of liability on defendants which may be disproportionate to tortious conduct involving perhaps momentary lapses of concentration, e.g. See also Rachael Mulheron, “Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012) 32 Oxford J Legal Stud 77 at 107-11 (where, in arguing against the recognized-psychiatric-illness requirement for mental injury redress, Mulheron highlights legal tools by which the number of potential claims could effectively be ‘ring-fenced’ if her proposal is adopted).