Date: Fri, 16 Jun 2006 11:39:12 +0100

From: Andrew Tettenborn

Subject: Do duties of care ever die?

Neil Foster wrote:

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.

Adam's question seems a very abstract one. At the risk of being pedantic and English, I'd be interested to know the context in which the question whether a duty of care can "expire" arises, and what is alleged to turn on the answer to it.

Andrew

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Andrew Tettenborn MA LLB
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University of Exeter, England

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