Date: Fri, 16 Jun 2006 07:10:13 -0400

From: David Cheifetz

Subject: Do duties of care ever die?

Adam,

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.

An immediate answer which, oddly, amounts to both a valid answer and an 'avoidance' of the substance of your question, is: of course it can, when the existing law that established the existence of the duty changes after the time of the commission/omission but prior to the occurrence of the damage, and declares that the duty does not exist. However, under the now discarded traditional rationale for the "declaratory" theory of the common law - the true law always existed, we just misunderstood it, - that means that the duty never existed if the law changed. That's the conceptual / philosophical argument underlying the 'prospective overruling' dispute. As you know, in National Westminster Bank plc v. Spectrum Plus Limited & Ors, [2005] UKHL 41, [2005] 3 W.L.R. 58 (H.L.), all seven members of the House of Lords panel said ‘never say never’ to prospective overruling.

Kidding aside, I'm not certain that the duty can, logically, expire in a substantive sense beyond the way I've stated it, given the manner in which duty is defined. That, though, is a question I need to think about some more. I see Neil has just posted a substantive answer doubting that the duty can expire, that is be "wiped out" in the sense that Adam has suggested. I'm inclined to agree with Neil.

It seems to me that, given how we define duty of care, the duty either existed or it didn't, at the time of the event/omission. If it did, subsequent events can't change the past in the sense that they wipe out the existence of the duty. In that sense, legal time is "fixed". They may change the consequences of the existence of the duty; however, that's a different question.

On the other, a duty which didn't exist at the time of the act/omission can subsequently arise. I believe the relevant case involves an apocryphal mundane version of an escargot in a glass container.

Like Andrew Tettenborn, I'm wondering about the content of the question. Canadians are pedantic, too. (In my case, I'll blame that on Canada's British heritage and, in my case, one grandparent born in Wales and another who lived in London for a good part of his youth.). I see that Adam has just posted an explanation but I'm going to post this before looking at that.

Best,

David Cheifetz

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