Date: Fri, 16 Jun 2006 11:55:05 +0100

From: Adam Kramer

Subject: Do duties of care ever die?

The question is abstract for two reasons. One is that I want to be able to make the general (and so abstract) observation that duties of care do not terminate once they’re up and running to argue in a particular case that this does not happen. The other, more important, reason is that it all relates to a live case and one never knows who receives these emails. (It will have to) suffice to say that the case does relate to manufacturer or construction professional liability for physical harm or personal injury, and the particular argument I’m trying to face relates to intermediate examinations (actual examination/discovery, opportunities to examine/discover, anticipated examination/discovery) of the product or building terminating an extant duty in a situation where the chain of causation remains unbroken. (Of course one issue, touched upon by Neil, is whether the duty is owed from day one to users who have not yet encountered the product/building or are not even born, or whether it arises on contact with/use of the product or building. Is it an existing duty to each and every, or a general duty that crystallizes to each and every, and could these various types of examination prevent the duty to some arising?)

So, is it right (as I thought and Neil seems to agree) that the general proposition (extant duties never die) stands? And can it be challenged in particular in the specific context identified above?

As to Neil’s point about what happens when the beams start to rot etc, I agree that the chain of causation may be broken, but in addition it is often a matter of simple factual causation: once enough time has passed that a well-designed beam would also be rotten, it can’t be said that but for the carelessly caused defect the damage would not have arisen.

Best,

Adam

-----Original Message-----
From: Andrew Tettenborn
Sent: 16 June 2006 11:39
To: Neil Foster
Subject: Re: ODG: Do duties of care ever die?

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.

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