“However, do we all have standing to obtain injunctions against

anyone else to restrain them from engaging in unreasonable conduct? No, we

must rely upon threats to our own rights in order to obtain the relief.”

Sure.  But on your view can anyone ever obtain an injunction restraining another from engaging in unreasonable conduct (absent some undertaking to take care)?  No doubt, as you say, I don’t need to show that you’ve already committed a wrong (breached a duty) to get an injunction, but don’t I have to show that I have a right that you act/refrain from acting in the way I demand?  If my right is that you not carelessly injure me, then I have no right that you take care without more.

More broadly, why wouldn’t we want to say that, at least in certain circumstances, I have a duty to you, there and then, to act carefully – that I am legally required to take care and not at liberty to act carelessly – when my actions run the risk of harming you?

Charlie.

-----Original Message-----

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: Sat 1/23/2010 7:08 PM

To: Wright, Richard

Cc: Robert Stevens; obligations@uwo.ca

Subject: RE: Duty, and Breaking Eggs

 

 A complete tort or civil wrong requires not merely

> duty and breach, but also actual causation and attributable responsibility

> ('proximate' causation or lack of 'remoteness').

I think this is false (see on the definition of a civil wrong P Birks "The

Concept of a Civil Wrong" in D Owen  (ed) Philosophical Foundations of

Tort Law (1992), 29).

Consider breach of contract. If I have contract to do X, and I don't do X

the civil wrong is thereby constituted. The breach of the duty, without

more, is the wrong.

Consider trespass to land. If I walk on your land without authorisation I

breach my duty not to do so and commit trespass.

Consider libel. If I call you an axe murderer in print, I breach my duty

not to do so and commit libel. There is no further requirement.

When you say that, as a matter of definition, we require, in addition,

causation and attibutable responsibility, causation of what, attributable

responsibility for what?

> The issue in the Sikh case does not, as Rob implies, turn on the the

> debate between those, like me and the Restatement Third, who agree with

> Andrews' view of a duty owed to the world at large not to create

> unreasonable foreseeable risks to others (which, by the way, the English

> courts have adopted without acknowledging doing so by treating any

> nonfantastic risk as foreseeable in Wagon Mound 2), rather than Cardozo's

> narrow (and incoherent given the many exceptions made to it) view of a

> duty owed only to specifically foreseeable (classes of) plaintiffs (on

> both points, see my article, The Grounds and Extent of Legal

> Responsibility, in the San Diego Law Review, which is accessible through

> the hyperlink in my 'signature').

I think the result in this case will be the same regardless of the view

one adopts. I was responding to the argument that I was confusing duty,

breach and causation.

 As I stated in my original post, the

> victim in the Sikh case was within the class of foreseeable plaintiffs

> (assuming it is foreseeable that persons with allergies to eggs would or

> might reasonably rely on there being no eggs in the food served at the

> Sikh event), so a duty was owed according to Cardozo's view as well as

> Andrews' view.  Cardozo himself separated the issue of duty from the

> subsequent distinct issues of causation, both actual and 'proximate'.

>

Absolutely

> Rather, what divides Rob from me (and, I believe, many others) is whether

> one has the duty concept swallow up the entire tort, by including within

> the duty analysis the issues of causation and attributable responsibility.

>  Rob believes that a duty is owed to others only not to injure them (in

> foreseeable, nonremote ways) through conduct that creates an unreasonable

> foreseeable risk of such injury.  No matter how unreasonable one's conduct

> is and no matter how foreseeable and significant the risks to others, one

> has no duty not to engage in such conduct unless it subsequently turns out

> to have actually injured others (in a foreseeable and nonremote way).

> For Rob, duty is equivalent to wrong

No. Breach of a duty owed to anothr is a civil wrong. Duty itself does not

mean wrong.

 and requires ex post actual causation

> and attributable responsibility analysis as well as ex ante foreseeable

> risk analysis.

So, on my view the causal enquiry doesn't disappear, rather whether there

has been a breach will, in part, turn upon whether the defendant's conduct

has caused injury to P. Th conduct is not the wrong in itelf.

  He, I assume, defines negligence or 'potentially liability

> creating conduct' not as a breach of duty but rather as creating an

> unreasonable foreseeable risk to others.  But what makes it unreasonable?

> It would seem that, according to Rob, it is not unreasonable if not

> wrongful in a strict sense, that is, if it does not end up actually

> causing injury to another.

Getting drunk and driving round a roundabout is very unreasonable. It just

isn't, without more, a civil wrong. Lots of negligent conduct is not

wrongful. Negligence in the air is still negligence, just not a tort.

  It is not even enough in the Sikh case for the

> unsuspecting guest to have eaten the egg (as Rob states); it must also be

> the case that eating the egg caused an allergic reaction, and that the

> allergic reaction caused physical harm.

>

You need injury (ie a right violation).

> Perhaps Rob has some other name for what everyone else calls

> duty/breach/negligence.  It may just be semantics, but I don't find his

> semantics helpful.  Moreover, I don't think his approach to duty, which

> has also been espoused by Ripstein and Zipursky, is merely idiosyncratic

> semantics, I think it also is bad conceptually.  On his view, it seems one

> should not be able to enjoin risky conduct unless it is certain that the

> risky conduct will injure (in a foreseeable, nonremote way) a foreseeable

> victim, and perhaps not even then.  After all, on his view there has been

> no breach of duty until a cognizable legal injury has been suffered by the

> plaintiff.

>

That does not follow. It is unnecessary in order to obtain an injunction

to show that you are the victim of a wrong (injunctions in contract law,

for example, obviously don't require the breach actually to have

occurred). It is also unnecessary to show that the defendant will

certainly commit a wrong. The injunction may be awarded to prevent a

potential wrong from being committed, not just to stop a wrong which is

ongoing. However, do we all have standing to obtain injunctions against

anyone else to restrain them from engaging in unreasonable conduct? No, we

must rely upon threats to our own rights in order to obtain the relief.

I don't think this is just semantics. So, for example, my view is that if

you don't separate out correctly the two causal questions (i) has D's

negligent conduct injured P and (ii) what consequences has the wrong P has

suffered had, that you soon get into difficulties. You may even argue that

X can cause Y, even where Y would have happened regardless of X.

best

Rob

--

Robert Stevens

Professor of Commercial Law

University College London

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