Date: Fri, 16 Jun 2006 20:00:33 +1000

From: Neil Foster

Subject: Do duties of care ever die?

Dear Adam et al;

I'll put my head up first and say I don't think duties of care "expire" in the sense you seem to be suggesting. In Australia we still (just) have the authoritative decision of the High Court in Bryan v Maloney which says that a builder owes a duty of care in building a (residential) house not to cause economic loss to a subsequent purchaser. Less controversially, the older decision of Voli v Inglewood Shire Council (1963) says that an architect owes a duty of care to those who will use his building not to so design it that it may foreseeably collapse and cause personal injury. Presumably the duty is owed when the relevant activity (building or designing) takes place. At that point it is a duty owed to an unidentified group of people (subsequent users). Indeed I guess some of them may not even be born at the time. But the negligence action is only available when harm occurs.

Presumably there must come a point in time when the initial faulty foundations or beam designs are no longer able to be blamed for any later injury. I was tempted to say the duty must expire at that time. But on reflection I suppose the better view is that there is a breach in the chain of causation when the house gets old enough that its foundations may have started to shift already, or the beams start to rot regardless of whether they were well designed. Eventually other causes become operative. This won't wipe out the fact that a duty was initially owed, and the duty was breached. It just means that as it turns out no-one comes along to sue on the breach before other intervening causes are present.

Of course all this becomes reasonably "academic" in the bad sense of that word because there are indeed limitation statutes. Which I will use as a segue to say that anyone interested in reading some interesting cases on the different glitches that can arise under such statutes might like to read the House of Lords decision in Horton v Sadler [2006] UKHL 27 or the High Court of Australia decision in Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27, both handed down on 14 June 2006, both dealing with limitations issues, and both numbered "27" (spooky!). The majority of the High Court in Batistatos holds that a plaintiff who has commenced an action within a limitation period (deemed to be extended due to his mental disability) may still find his action struck out (in circumstances where he is guilty of no delay or other fault) on the ground that it is an "abuse of process" because the events occurred so long ago.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Adam Kramer 16/06/06 6:59 >>>

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 3-83re: volenti).

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