Ibbetson Historical Introduction (n 24) 174–76, especially 175 fn 41: ‘The test of foreseeability was already found as a rule of remoteness of damage, and its translation from there marks the first step of its recategorization.’ See also ‘Negligence in the Common Law’ (n 24) 246–47. The case referenced the existing legal duty of the bar owner at the outset of the opinion based on precedent which had previously established the duty. Although the point has been strenuously argued,108 there is no good reason to reject as interpolated its attribution to Quintus Mucius Scaevola, a jurist active around 100BCE.109 On the other hand, it may be that it was Paul who imported it from contract to delict and applied it to the problem of culpa in the context of the lex Aquilia.110 Reaching further back, it may be that the foreseeability principle was derived by Quintus Mucius—either immediately or via some Stoic intermediary—from the writings of Aristotle, specifically from the account of wrongdoing given in his Rhetoric111 and Nicomachean Ethics,112 in which the concept of foreseeability—or more precisely, the occurring of an event ‘contrary to expectation’, paralogos—features prominently.113 Yet it seems that the foreseeability principle played a very different role in the context of Aristotle’s analysis than it did in Paul’s. Foreseeability is a legal theory which attempts to place some kind of duty of care on someone’s actions. Ibbetson Historical Introduction (n 24) 167–68. Who, then, in law is my neighbour? The full citation is D 9.2.31 (Paul Book 10 On Sabinus). As in D 9.2.28 and 31 as well as Justinian’s Institutes 4.3.5. Again, in this the Chief Justice seems to have been directly influenced by Grueber’s paraphrase of the last sentence of our text. See the 1817 English translation of the 1748 edition by Thomas Nugent (The Principles of Natural and Politic Law) 241–42. I have used the 5th edition of 1788: see 25–26. Fusi 1934) 79, 88–89—that the Roman dolus/culpa/casus typology was Aristotelian in origin: see Roman Law: Linguistic, Social, and Philosophical Aspects (Edinburgh University Press 1969) 131–56. F Pollock, Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law (Stevens and Sons 1887) 353. Of course this argument is pure heresy from the point of view of Professor Buckland: see ‘The Duty to Take Care’ (n 23) 639–40. All emanate from a single judge, James Rose Innes: essentially an autodidact, yet deeply learned in Roman, Roman-Dutch and German law as well as the English common law; second Chief Justice of the Union of South African; one of the ‘Cape Liberals’ who battled unsuccessfully to achieve universal suffrage in South Africa during the early decades of the twentieth century; and probably among the greatest judges the country has ever produced.68 These decisions seem to me to strengthen significantly the case for influence made out above. The foreseeability test is used to determine whether the person causing the injury should have reasonably foreseen the consequences of the actions leading to the loss or injury. We use cookies and by using this website you are agreeing to the use of cookies. I am grateful to the members of the Oxford Legal History Forum for their comments on an early version of this paper; to Leo Boonzaier, Eric Descheemaeker, Robin Evans-Jones, Anton Fagan, and Douglas Scott for feedback on the evolving draft; and to the audience at the lecture delivered on 10 January 2019 at University College London for their thought-provoking questions. A person cannot be held responsible on the theory of negligence for an injury unless there is a breach of a duty[ii]. It is important to stress, finally, that I am not here concerned with the question of the influence on Lords Atkin and Macmillan of Scottish civilians such as Stair, Erskine, and Bell. Anyone likely to be affected by the actions or omissions of the defendant will be regarded as a reasonably foreseeable plaintiff. cf Ibbetson ‘Wrongs and Responsibility’ (n 97) 99. Apparently preoccupied with cases in which the relationship between conduct and consequence was immediate, we hear very little from the Roman jurists about issues of what we would call remoteness.133 And it is for this reason that the Roman law of accidents appears to have been able to get by with the rather unsophisticated concept of culpa which I have described: because it was largely confined to instances of killing, wounding, burning, breaking etc, the law faced only rather few questions under the rubric of fault.134. Jones, Skelton & Hochuli, P.L.C. This is perhaps a reasonable approach at first blush. Foreseeability and Proximate Cause was about eight months pregnant and later had miscarriage. Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. 137 It is beyond the scope of this lecture to offer a comprehensive account of the historical processes by which foreseeability came to … Duty of Care meaning in law. There is, however, a more fundamental similarity between the Greek and Roman accounts. It is the first element that must be established to proceed with an action in negligence. ‘If either side could have shifted the balance of the argument in their favour by citing some passage from a Scottish institutional writer or from a Scottish case, then they would certainly have done so. But as a principle which generates liability, it does not seem that human foresight, even the foresight of a reasonable person, can bear the normative weight assigned to it by Lord Atkin. English tort scholars had been pushing hard for the generalisation of the tort of negligence for several decades by the time that Donoghue v Stevenson was handed down in 1932.31 But those scholars tended to be hostile to the duty of care, preferring to emphasise negligent conduct itself. July 3, 2018 | Philip A. Carson, Steve Rehak In Canadian tort law, a duty of care requires a relationship of sufficient proximity. “Foreseeability” refers to the concept where the defendant should have been able to reasonably predict that it’s actions or inaction would lead to a particular consequence. Ibbetson, Historical Introduction (n 24) 175–77; ‘Negligence in the Common Law’ (n 24) 246–47, 265. A defendant will only owe a duty of care to plaintiffs who are reasonably foreseeable. For negligence to be a proximate cause, it is necessary to Search for other works by this author on: © The Author(s) 2019. D 13.6.5.2, 3 (Ulpian Book 28 On the Edict) seems to show Quintus Mucius Scaevola working with the concept of diligentia in the context of the contract of commodatum. Of the Anglo-American textbook writers mentioned above, Wharton (n 48) too makes frequent reference to Hasse. Donoghue v Stevenson makes its appearance in a footnote, presumably added at a late stage in the preparation of the manuscript: see RG McKerron Law of Delict (Juta 1933) 28–30 and in particular 29, fn 109. While it seems plausible to assign these fact complexes to the categories hamartema and atychema (in the first case the actor intends the consequence of his action, the death of the old man; in the second he does not), I cannot find explicit support for this view in Aristotle’s account. But see R Sorabji, Necessity, Cause and Blame (Duckworth 1980) ch 17, especially 278–81 (discussed further in the next note). Grueber, Damage to Property (n 53) 225. See also J Crook, ‘A Roman Candle’ (1970) 20 Classical Review (NS) 361, 363. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. Foreseeability › Duty of Care + Follow. Discussions of culpa in the context of wounding: D 9.2.5.3, D 9.2.30.4 (negligentia) and D 9.2.52.1 and 4 (citations above). cf BW Frier, A Casebook on the Roman Law of Delict (Scholars Press 1989) 29–32; D Ibbetson, ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26 UNSWLJ 475, 509. This is to be contrasted with the ‘clear subjectivism, with a strongly Aristotelian slant … found elsewhere in Roman law’: see the examples from Roman criminal law given by Ibbetson, ibid 117–19. I have suggested that in formulating a general duty of care in this way Lord Atkin may have been influenced by the account of culpa given by the classical jurist Paul in Digest 9.2.31, which may itself have been influenced by Aristotle’s account of wrongdoing. ibid 215. As we have seen,93 at least since Donellus there has been a tendency to treat the foreseeability principle in Digest 9.2.31 as a general definition of culpa, a definition assumed to have determined the outcome in other key texts in Digest 9.2 even while it remained unacknowledged. Again, I have used Watson’s translation with some adjustments. Pernice, Lehre (n 59) 66; Mommsen, Beiträge (n 60) 361; Hasse Culpa (n 61) 68–70. A duty of care is the legal responsibility of a person or organization to avoid any behaviors or omissions that could reasonably be foreseen to cause harm to others. Foreseeability of a risk See: breach of duty Presumably he had in mind the following passage from the judgment: ‘If a person contracts with another to use ordinary care or skill towards him or his property the obligation need not be considered in the light of a duty; it is an obligation of contract. Fellow and Tutor in Law at Lady Margaret Hall; Professor of Private Law in the Oxford Law Faculty; Honorary Research Associate in the Department of Private Law at the University of Cape Town. (1883) 11 QBD 503, 509: ‘… whenever one person is by circumstances placed in such a position with regard to another that anyone of ordinary sense who did think would at once recognise that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.’ For the wider context of this decision, and in particular the decisions of Brett MR/Lord Esher which preceded and followed it, see J Plunkett, The Duty of Care in Negligence (Hart 2018) 22–25. What mattered was that the harm was unforeseeable (atychema) or not unforeseeable (hamartema). She suffered injuries as a result.1 The principal question which had to be decided by the Supreme Court was whether the officers owed a duty of care to Mrs Robinson.2 Lord Reed, with whom Baroness Hale and Lord Hodge agreed, said,3. The next stage of my argument involves triangulating the neighbour principle, on the one hand, and Digest 9.2.31, on the other, with a series of South African decisions dating from the early decades of the twentieth century. As such, Canadian law continues to follow the principles established by the UK House of Lords in its 1977 decision Anns v. In the construction industry, the definition of foreseeability extends to other legal concepts as well, including duty of care, breach of contract, factual causation, and proximate causation. But in the case of a tort typically concerned with indirectly inflicted harm, the position is of course very different: here, foreseeability becomes an important tool not only for moderating the scope of liability for consequences but also for evaluating the blameworthiness of conduct.144 Thus in Blyth v Birmingham Waterworks, in which an exceptionally hard frost froze pipes laid by the defendant, causing water to escape from the pipes and damage the plaintiff’s house, it was held that:145. As Lord Atkin himself observed in the lines immediately preceding and following the ones I have quoted, a generalisation of the duty of care in terms of reasonable foresight had already been attempted by Sir William Brett, Master of the Rolls, in Heaven v Pender at least as far back as 1883.11 Following his judgment in MacPherson v Buick Motor Company12 in 1915, in which Heaven v Pender was quoted with approval13 and a duty to inspect held to be owed by a manufacturer to the ultimate purchaser of a defective motor car,14 Cardozo CJ famously held in Palsgraf v Long Island Railroad Company in 1928 that there had been no breach of any duty owed to the plaintiff, to whom injury as a result of the defendant’s employee’s negligent conduct was unforeseeable.15 Referencing Heaven v Pender, Frederick Pollock had since the first edition of his Textbook in 1887 been advocating a general duty of care in acts.16 But the duty concept itself was in truth relatively peripheral to Pollock’s account.17 His general duty of care was formulated in the following terms: One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk … Thus we arrive at the general rule that everyone is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default.18, The emphasis thus fell not so much on the determination of duty as on negligence itself, famously defined by Baron Alderson in 1856 in Blyth v Birmingham Waterworks Company.19 Pollock was of course careful to circumscribe the operation of his general duty—several pages later, he specified that liability in negligence would arise only ‘provided, of course, that the party whose conduct is in question is already in a situation that brings him under the duty of taking care’20—but it is clear that it was fault rather than duty that constituted the focus of his analysis. I propose to discuss three in particular. Required fields are marked *. If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists; If such a standard, relationship, or status is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm. See Daube, Aspects (n 114) 140–42. For a duty of care to be established, the risk posed to the plaintiff or a class of people to which the plaintiff belongs must have been reasonably foreseeable. See eg W Kunkel, ‘Diligentia’ (1925) 45 ZSS 266, 298–99; ‘Exegetische Studien zur aquilischen Haftung’ (1929) 49 ZSS 158, 163, 180–81, as well as the other sources cited by MacCormack ‘Aquilian Culpa’ 202 fn 7 and 203 fn 10. eg MacCormack ‘Aquilian Culpa’ (n 94); G MacCormack, ’Aquilian Studies’ (1975) 41 Studia et Documenta Historiae et Iuris 46; as well as R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta 1990) 1007–1009. T Mommsen, Beiträge zum Obligationenrecht (CA Schwetschke und Sohn 1853–55). The next step in my argument requires considering more carefully the role of the foreseeability principle in its original Roman context. It is the first element that must be established to proceed with an action in negligence. With the possible exception of D 9.2.30.3 (Paul Book 22 On the Edict). Swinney v Chief Constable of Northumbria Police (1999), Murphy v Brentwood District Council (1991): pure economic loss, Phipps v Rochester Corporation: Occupiers liability and young children. Two recent Indiana Supreme Court opinions have clarified how Indiana courts should analyze foreseeability to determine whether a duty of care is owed to the plaintiff. This account of the facts is drawn from the judgment of Innes CJ, ibid 516. Note that in the latter version of the text the outcome is made to turn on whether the victim had had a right to walk where he did. As such, it redefined the boundaries of liability for inadvertently inflicted harm. See text to n 57; Grueber, Roman Law of Damage to Property (n 53) 225, quoted by Innes CJ, Farmer v Robinson (n 74) 522. Then it would have been his duty either to guard against the danger, or not to do the work.’ 117. Whilst a prima facie duty of care is imposed for physical harm where the criteria of proximity, foreseeability, and policy are fulfilled, liability for psychiatric harm rests upon an individual's connection to a traumatising event; those not physically endangered may not be owed a duty of care unless they can fulfil several relational criteria. See eg JH Baker, Introduction to English Legal History (5th edn, Oxford University Press 2019) ch 23. cf Frier, A Casebook on the Roman Law of Delict (n 47) 29. That relationship is informed by the foreseeability of an adverse consequence of one's actions, subject to policy reasons that a duty of care should not be recognized. Miss Bourhill was about 50 yards away from the spot where the accident had taken place, and she did not see the collision herself but only heard a big loud bang which was due to the collision. The test for duty of care is now that set down by Caparo v Dickman. Ibbetson, Historical Introduction (n 24) 176. Negligence in its legal sense means a failure in law to do what a reasonable person would have done in the circumstances. The second stage of the test involves “residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.” (Cooper, para. He cited also the remark in Street, Foundations of Legal Liability (n 80) 93 to the effect the statement of Brett MR / Lord Esher in that case amounted to, ‘the most powerful, judicial effort which has ever been put forth to generalise the theory of negligence.’ See also his reference to the third edition of Beven’s work on negligence, Negligence in Law Vol 1 (3rd edn, Stephen & Haynes 1908) 63. The duty of care is a legal obligation requiring that a person observe a standard of reasonable care when acting or engaging in conduct that could potentially harm others. In this way rules of law arise which limit the range of complainants and the extent of their remedy. In other words, we must live and act in society in such a way that we do not cause harm to others. See in particular Cape Town Municipality v Paine (n 83) 219–220, where the issues of duty and breach are considered separately. This historical insight serves to illuminate the limits of foreseeability in the context of the modern test for duty of care. P Winfield, ’The History of Negligence in the Law of Torts’ (1926) 42 LQR 184, 196. 304–06 below). The three-stage test for duty … What the court was saying that if the claimant did not see, or come in contact, and was away from the scene where the accident took place, then it was not foreseeable for the defendant to see that his action would cause her harm. Ne III.1.13 ff ( 1110b–1111a ), where Aristotle appears to have acted with to! Penguin 2012 ) CH 12 ) 140–42 that way römischen Rechts: eine civilistische Abhandlung course not free of.... It tells us very little about the moral case for the recovery of damages according such! 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