Well, I’m with Atkin here.  But I’m surprised you are.  I read Atkin as saying that there is a duty of care but that no damages claim will lie unless the breach of this duty of care causes injury.  That’s my position, not yours.  He’s not saying, again as I read it, that there is no duty of care per say but only a duty not to cause harm carelessly.

As I wrote in my previous email, the fact that an uninjured party has no claim does not necessitate the conclusion that he/she was not wronged.  To expand, I see no incoherence in the law saying that I owe you a duty of care (to drive carefully say) but that, should I breach this duty, I come under a duty to pay you damages only if my breach causes a relevant harm to you.  Nor do I have a problem with saying that “relevant harms” may be defined by reference to our “rights” (in the sense of "interests" as opposed to the sense which is correlative to duties).  So, I don’t see why my position (and Atkin’s) need lead us to reject any of the points you go on to make about when damages are and are not recoverable, though it may affect how we express them.

Charlie.

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

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

Sent: Sun 1/24/2010 11:57 AM

To: Webb,CE

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

Subject: RE: Duty, and Breaking Eggs

 

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

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