Date: Fri, 16 Jun 2006 08:54:17 -0400

From: David Cheifetz

Subject: Do duties of care ever die?

David,

Not really, if we still adhere to the traditional common law explanation for the meaning of changes in the law - there they are Platonic forms in the sense I think you mean. Under that explanation (discarded as fairy tale - even by the House of Lord: the SCC hasn't yet decided the point) the duty never existed if the decision asserting its existence is subsequently overruled. We can be cute and say what "died" was the mistaken belief in the duty; but it's still a dodge.

As you know, in constitutional matters, we have decisions affirming the validity of certain acts done in the past even though, subsequently, the legislation which is the foundation for their validity is declared unconstitutional and to have always been unconstitutional.

Anyway, the issue we're almost discussing in part underlies the prospective overruling debate.

Best,

David

(PS - nice car - dare I ask how many kilometres per litre? Or, is this a form of a "if you need to know, you don't want to know" question?)

-----Original Message-----
From: David Wingfield
Sent: June 16, 2006 8:41 AM
Subject: Re: ODG: 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.

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