Date: Wed, 10 May 2006 20:23:12 +0100

From: Robert Stevens

Subject: Childs v Desomeaux

I do think that it is important, however, to recognize (as Robert seems to imply), that this will leave the issue of what should the parties in my example have done (B, C, D, E) to ensure that A got home safely to the fact finder (be it judge or jury).

Absolutely. It is important that we recognise A's interest in being treated like a grown up and, indeed, the interest we all have in having a good time at parties without being pestered as to whether we really want that third glass. Given this, in most cases the answer to the question "was the social host's conduct reasonable in throwing the party and allowing drinks to be served?" will be "Yes."

It seems to me very likely that if the parties' response to their obligation to ensure that A got home safely is that "we did not to anything at all because after all we were only slightly responsible for her drunkenness" or "we did not do anything at all because we did not think it was necessary" will unlikely meet with a favourable response from most judges and juries. They will come to the conclusion that since the law imposed a duty on them to do something (since they created the risk), they should have darned well done something. Doing nothing will probably not seem reasonable.

So yes ... the question of who creates the risk, which is the threshold duty question, is an important one and perhaps the Supreme Court did draw a "bright line" rule in defining this, since it feared the consequences if it did not.

Here we come to the crunch. Any conduct at all is capable of being careless. The question is whether we take this question out of the hands of the finder of fact and create a bright line exclusionary rules in certain contexts.

One story which is often told goes something like this. In the nineteenth century when juries were commonly used in civil actions in order to decide factual questions such as whether the defendant had been careless, it made a certain sense for the judges to exercise control over when personal injuries could and could not be actionable by limiting the categories where a duty of care was recognised. In England, the jury system in civil actions was essentially ended by World War One. German machine guns killed the jurors. Once the question of whether there was carelessness was left to the judges, it was possible to recognise a general duty of care not to kill or injure other people, a conclusion that the Natural Lawyers had reached centuries before.

Can it really be the case that where the question of whether there is actual carelessness is determined by a judge, that he is not to be trusted with answering this question? I know that some judges get the decision as to what counts as negligence wrong sometimes (for a spectacular example, see Sedley LJ's decision in Tomlinson v Congleton, fortunately overturned by the House of Lords) but this can be controlled on appeal.

Bright line exclusionary rules such as in Childs lead to more litigation and like cases being treated differently.

Robert Stevens
Barrister
University of Oxford

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