I am sure I could if I looked find quotes supporting your position in the

caselaw, but here is one I think adopts mine

"The law of [England and Scotland] appears to be that in order to support

an action for damages for negligence the complainant has to show that he

has been injured by the breach of a duty owed to him in the circumstances

by the defendant to take reasonable care to avoid such injury."

Lord Atkin, Donoghue v Stevenson [1932] A.C. 562, 579.

Of course to prove that as a matter of positive law that Lord Atkin is

right I need more than a quote. So one proof, in my view, is the way that

consequential loss is actionable if you are the person injured, but not if

you are not. Only the person wronged gets the claim. Another proof is the

result in Palsgraf and Bourhill v Young. Another is the way damages work.

So if I negligently destroy your car I must pay you the full value of the

car even if you are not, as things turn out, factually worse off. The

violation of the right imports damage, and the right is the right to not

have the car negligently damaged, not a right that others take care not to

expose the car to the risk of damage. If I bail my goods to you under a

contract there are now, I think, demonstrably two duties you owe me, one

the general duty not to negligently damage my goods and another

contractual duty to take positive steps to take care of them, regardless

of damage.

As to the view that my position doesn't tell us all that we need to know

about how to behave, I think two responses are possible. The first of

which is, I think, the same as John Goldberg and Ben Zipursky's. If you

ask my advice on how to use the law as a guide to conduct in order to

ensure that you don't breach any duties to others, my advice would be to

be careful, as that is the best way of ensuring that you don't negligently

injure other people. To say that that means there are really two duties to

take care is, in my view, misleading and potentially leads into error.

However, I also take the view, and this is more controversial I accept,

that the law of torts is not about giving people guidance norms for the

regulation of conduct. So, if it could be empirically proven beyond per

adventure that the law of torts had no impact whatsoever on behaviour (and

in many areas I am pretty sure it has no or virtually no impact) would

this be a good reason for its abolition? I don't think so. It is a wrong

to negligently injure other people, and it is a requirment of justice that

the wrongdoer does the best he can to achieve the position that would have

existed absent the wrong. It is also a jolly good thing that we promote

justice by compelling wrongdoers to do what justice requires. Of course it

is part of the rule of law that we define with precision what is a civil

wrong and what is not, and one of th central points of law is to lay down

determinate rules where our moral rights one against another are

indeterminate, but that doesn't mean that we should understand the law of

torts as there in order to give guidance norms for conduct.

Rob

> "There is a duty to take care not to injure other people, and that alone

> tells us all we need to know about how to behave."

>

> I think this way of putting it obscures the distinctiveness of your

> position.  On your view, there is no duty to take care but rather a duty

> not to injure carelessly.  So, if I am a ginger beer manufacturer or if I

> am about to go for a drive and I want to know whether the law requires me

> to take care when doing these things, your answer would have to be “no” –

> or perhaps “no, unless it later turns out that by acting carelessly

> someone ended up injured”.  And I don’t think either answer tells us all

> we need to know about how to behave.

>

> I take your example about the car crash, but the fact that the uninjured

> parties have no claims does not necessitate the conclusion that they were

> not wronged.

>

> Charlie.

>

>

> -----Original Message-----

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

> Sent: Sun 1/24/2010 8:37 AM

> To: Webb,CE

> Cc: robert.stevens@ucl.ac.uk; rwright@kentlaw.edu; obligations@uwo.ca

> Subject: RE: Duty, and Breaking Eggs

>

>

> Chrlie asks:

>

>> 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.

>

> Courts will grant injunctions to restrain conduct which if committed will

> not, alone, constitute a wrong. They will do so for prophylactic reasons,

> to prevent the possibility of a wrong. So, if I am an obsessed fan of Kate

> Winslet the ourt, in order to stop my harrassing her, may order that I am

> not to go within 500 meters of her house. That doesn't mean that, absent

> the order, I would have been violating any right of Ms Winslet by going

> near her house.

>

>

>>

>> 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?

>>

>

> I don't think it would be coherent for the law to say that each of us has

> a right not to be injured and in addition that we have a right not to be

> exposed to the risk of injury.

>

> Say I am driving in my car with my wife and children. You, driving

> negligently, crash into the car. I am injured but my wife and children

> luckily escape. I can no longer work. All members of my family are worse

> off, but who can sue? If we say, as I am quite certain is correct, that a

> wrong is a breach of a duty owed to someone else,  only I can sue, because

> only I have been injured. (I'll give some other examples in response to

> Richard).

>

> So, I am with John Goldberg in thinking there is a duty not to injure, but

> think it is misleading to say that there is an additional duty to be

> careful towards others simpliciter. Such a duty has no legal significance

> within his account, I think. There is a duty to take care not to injure

> other people, and that alone tells us all we need to know about how to

> behave.

> Rob

> --

> Robert Stevens

> Professor of Commercial Law

> University College London

>

>

>

> Please access the attached hyperlink for an important electronic

> communications disclaimer:

> http://www.lse.ac.uk/collections/planningAndCorporatePolicy/legalandComplianceTeam/legal/disclaimer.htm

>

--

Robert Stevens

Professor of Commercial Law

University College London