|
Date: Fri, 16 Jun 2006 09:59:20 +0100 From: Adam Kramer Subject: Do duties of care ever die?
Dear all, I’m pondering something at the moment that is obliquely related to a case I’m doing. The question, which is pretty simple, is whether (ignoring limitation) a duty of care which has been owed and breached can, subsequent to the breach but prior to the harm and the arising of the cause of action, cease. (By way of example, let’s keep it simple and say a manufacturer or construction professional owes a duty to take care not to cause physical harm or personal injury to any of those coming into contact with the article/building he is working on, and carelessly introduces/fails to prevent a dangerous defect, and the manufacturer or construction professional’s responsibilities for the article/building then end, and so the article/building then endangers people.) Of course, there are things that can prevent the duty arising in the first place (the usual foreseeability, proximity, policy, anticipation of intermediate inspection etc); and there are also defences that can arise on the occurrence of subsequent events (particularly intervening act legal causation, also remoteness, volenti, ex turpi causa etc), but on my understanding these defences do not actually terminate the extant duty of care so much as prevent recovery for the breach (see the Canadian Supreme Court in Hall v Hebert [1993] 2 SCR 159 re: ex turpi causa, Ingles v Tutkaluk Construction Ltd [2000] 1 SCR 298 re: egregious negligence of the claimant and comments in Clerk and Lindsell 19th edition para 3-83 re: volenti).
Any thoughts? Adam Kramer Barrister,
3 Verulam Buildings
<<<< Previous Message ~ Index ~ Next Message >>>>>
|
»
»
»
»