Date: Fri, 16 Jun 2006 8:41 AM

From: David Wingfield

Subject: Do duties of care ever die?

Duties of care are matters of law. They are not Platonic forms. Whether a duty was owed and whether it was breached is determined at the time the claim is being resolved by applying the law as it then is interpreted to the historical facts. The law can change. Frequently law suits revolve around contestable points of law (eg Childs). One side or another wins the debate. That disposes of things. I therefore don't see the problem with or the reason for debating "dying" duties of care.

Cheers
David Wingfield
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-----Original Message-----
Sent: Fri Jun 16 07:23:20 2006
Subject: RE: ODG: Do duties of care ever die?

Adam,

I'm inclined to agree with Neil. The way we define the concepts means that the fact of the existence of the duty, assuming that it existed at the time of the act or omission, can't be erased from history by subsequent events except in the "legal" sense I've described - that the law changes after the events and declares that no duty existed.

Your question couldn't have been posed under the traditional declaratory model - Blackstone, Commentaries on the Laws of England, Book 1, para. 70: “For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law” - because the metaphysical conceit was that a subsequent change in the law meant that the duty never existed.

Now? It's a consequences question, I think. Time, for law, has one direction. (No HG Wells time machines, etc.)

I still want to let my subconscious play with the question, though, before I saw the limb off completely.

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