Date: Wed, 10 May 2006 07:17:43 +0100

From: Robert Stevens

Subject: Childs v Desomeaux

Who exactly would you include in the "creation of risk" role? I assume most would exclude G. You would all of course include A. Would you include B, C, D, and E? It all depends on your definition of "risk creation". (To recap: B did the inviting and paying, it was C's wine, D was the designated driver, and E served the dinner and uncorked and poured the wine, for a fee.)

All conduct, of any kind, creates some sort of risk for other people. This morning I got out of bed, cycled into work, kissed my children and sat down and wrote this. All of these are actions which create risks for other people. (The last creating the risk that the reader will be so furious with my response that he'll keel over dead.)

Now, because these are examples of conduct all of which create risks for other people, are they cases where I should have refrained from acting? If my kiss passed on a disease, my cycling caused an accident or my getting out of bed injured my wife am I liable? Not unless I have been careless. The law draws a line between everyone's else's interest in not being harmed and my liberty of action.

Nonfeasance is literally not acting. (I ignore cases like Sutradhar where a careless action has failed to confer a benefit).

So returning to the hypothetical, the only party whose liability can absolutely be rules out on the ground is G. Is serving dinner and uncorking a bottle of wine action which you must take care in carrying out? Yes of course. Is providing wine? Yes? And so on.

Now does this mean that all of these people are liable to F? Of course not. Can the law require people not to open bottles of wine? No. What we need to ask is whether this sort of conduct is careless. If I open a bottle of wine and pour you a glass am I expected every time to say "make sure you don't drink too much?" Of course not, that would be unreasonable nannying. We need to know whether it is an unreasonable risk. We cannot duck these questions by trying to re-characterise action as if it wasn't. We have to identify the relevant conduct and see if it was unreasonable in relation to the relevant injured claimant.

The problem with Childs is it tries to duck the difficult question by creating a bright line rule. Perhaps they don't trust the courts at first instance to provide the answers.

Robert Stevens
Barrister
University of Oxford

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