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



Please access the attached hyperlink for an important electronic communications disclaimer: http://www.lse.ac.uk/collections/planningAndCorporatePolicy/legalandComplianceTeam/legal/disclaimer.htm