Search for other works by this author on: © The Author(s) 2019. The defendants had provided against such frosts as experience would have led men, acting prudently, to provide against; and they are not guilty of negligence, because their precautions proved insufficient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. In turn, breaching a duty may … All emanate from a single judge, James Rose Innes: essentially an autodidact, yet deeply learned in Roman, Roman-Dutch and German law as well as the English common law; second Chief Justice of the Union of South African; one of the ‘Cape Liberals’ who battled unsuccessfully to achieve universal suffrage in South Africa during the early decades of the twentieth century; and probably among the greatest judges the country has ever produced.68 These decisions seem to me to strengthen significantly the case for influence made out above. 2.12.7). The claimant was about eight months pregnant and later had miscarriage. It is justifiable to limit liability according to such considerations, either in evaluating harm-causing conduct or in attributing responsibility for consequences. In practice, they may be blurred in certain circumstances. It is important to stress, finally, that I am not here concerned with the question of the influence on Lords Atkin and Macmillan of Scottish civilians such as Stair, Erskine, and Bell. But it will now be obvious, I think, not only that Aristotle and Paul used the concept of foreseeability very differently, but also that the purpose to which Lord Atkin put it was very different to that which it served in its original Greek and Roman contexts. The contemporary English authorities concerning the liability of a landlord to third persons injured by defects in the premises are discussed by Innes CJ, ibid 212–15. The accidental deed does not show up the defective nature of man at his highest level, the level of thought.’ 149. There, the pruner’s culpa is said to lie in the fact that he failed to shout a warning so that the victim could avoid the falling branch, or shouted the warning too late. The second stage of the test involves “residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.” (Cooper, para. Negligence presupposes a duty of taking care and the duty of taking care presupposes knowledge or its equivalent [i]. duty assesses the foreseeability of injury from ‘the category of negligent conduct at issue,’ if the defendant did owe the plaintiff a duty of ordinary care the jury ‘may consider the likelihood or foreseeability of injury in determining whether, This difference reflects—at the level of specific detail—a fundamental difference in their approaches to responsibility.114, Central to Aristotle’s analysis is the distinction between voluntarily and involuntarily inflicted harm. In broad terms, a duty of care exists when there is a sort of a 'relationship' … This is perhaps a reasonable approach at first blush. But Mucius says that even if the accident occurred in a private place, an action can be brought on account of his fault [culpa]; for he thinks there is fault [culpa] when what could have been foreseen by a diligent man [a diligente provideri poterit] was not foreseen or when a warning was shouted too late for the danger to be avoided. admin May 4, 2017 August 11, 2019 No Comments on Bourhill v Young (1943): foreseeability and duty of care. Later she was at the spot where it had happened and saw lots of blood. He cited also Justinian’s Institutes 4.3.5 (for a full discussion of these Roman texts see pp. The version of culpa deployed in 29.3–4 (Ulpian Book 18 On the Edict) seems to catch any case in which the damage caused is not attributable to casus or vis maior. See eg JH Baker, Introduction to English Legal History (5th edn, Oxford University Press 2019) ch 23. cf Frier, A Casebook on the Roman Law of Delict (n 47) 29. This example is drawn from NE III.1.17 (1111a). It was not only reasonably foreseeable, but actually foreseen by the officers, that Williams was likely to resist arrest by attempting to escape … The place where the officers decided to arrest Williams was a moderately busy shopping street in a town centre. Principes de Droit Naturel. … the council ought to have realised the danger to occupants of the stand, which would result from failure to carry out its undertaking to repair and should have taken due steps to guard against it. What the court was saying that if the claimant did not see, or come in contact, and was away from the scene where the accident took place, then it was not foreseeable for the defendant to see that his action would cause her harm. See in particular Cape Town Municipality v Paine (n 83) 219–220, where the issues of duty and breach are considered separately. Swinney v Chief Constable of Northumbria Police (1999), Murphy v Brentwood District Council (1991): pure economic loss, Phipps v Rochester Corporation: Occupiers liability and young children. If it is lost or damaged. The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. See eg Lobban, ‘The Law of Obligations: The Anglo-American Perspective’ (n 17) 1040–45. D 9.2.8 (Gaius Book 7 On the Provincial Edict) appears to recognise a test of imperitia. “ [I]n those instances where foreseeability is an element of duty, this necessarily means the court must determine the question of foreseeability as a matter of law. Critical to this view is the claim (in NE V.8.7) that hamartema occurs when ‘the cause of one’s ignorance’ (Rackham, relying on an amendment to the original Greek text) or ‘origin of the train of events’ (Daube, Aspects (n 114) 142) or ‘origin of the cause’ (Sorabji, Necessity, Cause and Blame (n 121) 279) lies in oneself, whereas it is atychema when the cause lies outside. The effect of such contributory negligence on the part of the claimant was to extinguish liability entirely: cf D 50.17.203 (Pomponius Book 8 Quintus Mucius). Save my name, email, and website in this browser for the next time I comment. As such, these decisions may be a kind of juridical Rosetta stone, revealing the otherwise hidden relationship between Lord Atkin’s neighbour principle and our text. German private-law scholarship of the mid- and late nineteenth century was characterised, in contrast to much of the civilian tradition of the seventeenth and eighteenth centuries, by the emphasis which it placed on the original Roman texts: W Ernst, ‘Negligence in 19th Century Germany’ in E Schrage (ed), Negligence: The Comparative Legal History of the Law of Torts (Duncker & Humblot 2001) 341. As for Pollock, from its first edition in 1887 and throughout, several pages of the first chapter of his Textbook were devoted to a discussion of dolus and culpa in Roman law. This is the explanation offered by eg Grueber: see his Damage To Property (n 53) 229–30. All rights reserved. 137 It is beyond the scope of this lecture to offer a comprehensive account of the historical processes by which foreseeability came to … Turning to the wider context of Lord Atkin's speech, Roman law is prominent in the Anglo-American tort textbooks of the late nineteenth- and early twentieth centuries: examples are Pollock’s textbook, Francis Wharton’s Treatise on the Law of Negligence48 and Thomas Beven’s Principles of the Law of Negligence.49 Chapter 3 of Beven’s work contains a detailed discussion of numerous individual texts drawn from Digest 9.2, while Wharton opens his Book 3, ‘Negligence in Discharge of Duties not Based on Contract’, with a paragraph in praise of the general culpa principle ‘recognised by the Aquilian law’. As the mid-twentieth century decision of the House of Lords in Bolton v Stone147 illustrates, conduct is considered culpable by virtue of the generation of unreasonable risks; it involves, centrally, the weighing up of the gravity of the threatened harm against the likelihood of that harm’s occurring. Again, I have used Watson’s translation with some adjustments. It seemed that the plaintiff had wandered off the road in the dark without realising it. T Mommsen, Beiträge zum Obligationenrecht (CA Schwetschke und Sohn 1853–55). So the owner or occupier of house or land who permits a person or persons to come to his house or land has no contract with such person or persons, but has a duty towards him or them.’. English Courts would probably hesitate to infer that duty from circumstances involving no element of proximity and no contractual relationship between the parties … [But] upon a careful consideration of all the facts I am satisfied that such a duty did arise. The first of these is Fleming v Rietfontein Deep Gold Mining Company, handed down in 1905 when Innes was Chief Justice of the Supreme Court of the Transvaal.69 The plaintiff, a miner, making his way home from a local hotel one night, fell into a disused mining shaft excavated upon one of its claims by the defendant company at a distance of about 80 feet from the road and left unfenced. Foreseeability is relevant to both duty and proximate cause. The possibility of a general, foreseeability-based test for duty was already prominent in the Anglo-American case law of the late nineteenth and early twentieth centuries. Two of the men were sturdily built police officers; the third was a suspected drug dealer whom they were attempting to arrest. On the nature of Pollock’s ‘quest for a general principle to explain negligence’ see the recent account of M Lobban, ‘The Law of Obligations: The Anglo-American Perspective’ in H Pihlajamäki, M Dubber, and M Godfrey (eds), The Oxford Handbook of European Legal History (Oxford University Press 2018) 1037–40. cf the criticisms of the so-called ‘Caparo test’ offered by Lord Reed in the Robinson case (n 1) [21]–[30]. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged. Apparently preoccupied with cases in which the relationship between conduct and consequence was immediate, we hear very little from the Roman jurists about issues of what we would call remoteness.133 And it is for this reason that the Roman law of accidents appears to have been able to get by with the rather unsophisticated concept of culpa which I have described: because it was largely confined to instances of killing, wounding, burning, breaking etc, the law faced only rather few questions under the rubric of fault.134. Duty. But it does not seem that subjective foreseeability was relevant in itself; rather, it served to demonstrate the avoidability of the harm, an objective, essentially causal inquiry. The property was intersected by a cutting, which was fenced off. As such, it redefined the boundaries of liability for inadvertently inflicted harm. See also D 9.2.51 (Julian Book 86 Digest). In addition to the authorities set out above see also those cited by Ibbetson, Historical Introduction 189 n 11, Plunkett, Duty of Care (n 11) 19ff. There is, however, a more fundamental similarity between the Greek and Roman accounts. ibid 215. A person cannot be held responsible on the theory of negligence for an injury unless there is a breach of a duty[ii]. What we do find is the word ‘avoid’—in Latin, evitare—which occurs also in our primary text. Relatively to her it was not negligence at all. Culpa is exactly what we mean by “negligence,” the falling short of that care and circumspection which is due from one man to another … The Roman conception of such rules, as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest “ad legem Aquiliam,” a storehouse of good sense and good law (for the principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has ever received. Ibbetson, Historical Introduction (n 24) 176–77; also ‘Negligence in the Common Law’ (n 24) 247–48, 263. The reasons for the rise of the duty of care in the context of the nineteenth-century tort of negligence are difficult to pin down. The case also shows that to make a claim as a secondary victim in psychiatric harm, the defendant also has to prove that there was a close relationship of love and affection. Who, then, in law is my neighbour? At a very general level, foreseeability, with its triple role and its accordion-like cf Evans-Jones, ‘One Law for Britain’ (n 67). Such a state of circumstances constitutes a contingency against which no reasonable man can provide. That relationship is informed by the foreseeability of an adverse consequence of one's actions, subject to policy reasons that a duty of care should not be recognized. Therefore, when asking whether an employer owed its employee a duty of care, we can’t rely on the benefit of hindsight. With apologies to Alan Rodger: cf A Rodger, ‘Mrs Donoghue and Alfenus Varus’ (1988) 41 CLP 1. This definition is found in D 9.2.31…’ This translation is that given in Evans-Jones & Scott, ‘Lord Atkin, Donoghue v Stevenson and the Lex Aquilia’ (n 43) 271. See also R Evans-Jones, ‘Roman Law in Scotland and England and the Development of One Law for Britain’ (1999) 115 LQR 605, 618-28. F Pollock, ’Oxford Law Studies’ (1886) 2 LQR 452, 456. It is undoubted, however, that there may be the obligation of such a duty from one person to another although there is no contract between them with regard to such duty. In 1920 the council leased the grounds to the YMCA for a period of three years: the lease provided that the council should repair the exterior of the stand.84 In October 1921 a meeting was held at the grounds under the auspices of the South African Athletic and Cycling Association, a body to whom the lessees were bound to grant the use of the ground under the terms of the lease.85 The plaintiff, who had paid for admission, while stepping from one seat to another on the grandstand put his foot through the woodwork of the flooring, sustaining serious injury. But in the case of a tort typically concerned with indirectly inflicted harm, the position is of course very different: here, foreseeability becomes an important tool not only for moderating the scope of liability for consequences but also for evaluating the blameworthiness of conduct.144 Thus in Blyth v Birmingham Waterworks, in which an exceptionally hard frost froze pipes laid by the defendant, causing water to escape from the pipes and damage the plaintiff’s house, it was held that:145. See text to n 57; Grueber, Roman Law of Damage to Property (n 53) 225, quoted by Innes CJ, Farmer v Robinson (n 74) 522. A duty of care is the legal responsibility of a person or organization to avoid any behaviors or omissions that could reasonably be foreseen to cause harm to others. If not, what was its role? Blyth v Birmingham Waterworks Company (1856) 11 Ex 781, 784, quoted by Pollock, Torts (n 16) 355. As we now know, following four decades of research by Amos Tversky and Daniel Kahneman (recently popularised in Kahneman’s book, Thinking, Fast and Slow), human beings are subject to a wide range of biases, for example the ‘availability heuristic’: roughly, the rule of thumb that the ease with which instances of an event come to mind accurately predicts the likelihood of its occurring.149 An attack by a shark on a swimmer in False Bay in Cape Town is in fact extremely unlikely; yet because of the operation of the availability heuristic—shark attacks feature prominently in popular culture and are widely reported in the media when they occur—it is eminently foreseeable. e In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It was argued by counsel for the defendant on the basis of certain English cases that because the plaintiff was a trespasser on the defendant’s claim, the latter owed him no duty in negligence.70 On the other hand, there was English and American authority for the proposition that liability could arise from the dangerous condition in which the excavation had been left, even if situated some distance from a public road.71 Chief Justice Innes held that the matter could be settled by direct reference to the Roman law, and in particular to the accounts of culpa given in Digest 9.2.28 and Digest 9.2.31, both of which deal with hazards on or near public thoroughfares.72 In the circumstances of the case it seemed that the defendant ought indeed to have foreseen that the excavation might pose a real danger to persons such as the plaintiff who might stray off the road for a short distance.73 Thus he founded his decision directly on the Roman texts. The original paper on which the popular account is based is A Tversky and D Kahneman, ‘Availability: A Heuristic for Judging Frequency and Probability’ (1973) 5 Cognitive Psychology 207. 135 It has since at least Vaughan v Menlove 136 in 1837 been central to determining the breach of a duty of care, and since 1961 it has been firmly established as part of the test for remoteness. On a Tuesday afternoon in July 2008 Elizabeth Robinson, aged 76, was walking along a shopping street in the centre of Huddersfield when she was knocked over by a group of men who were struggling with one another. See also Plunkett, Duty of Care (n 11) 32. Helen Scott, The History of Foreseeability, Current Legal Problems, Volume 72, Issue 1, 2019, Pages 287–314, https://doi.org/10.1093/clp/cuz009. A defendant can only be found responsible for an unreasonable or foreseeable act if that defendant owed what is called a duty of care to the claimant. Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of as the responsibility of an individual to not harm others through carelessness. The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This will usually be applied to cases involving physical injury or damage to property. Two recent Indiana Supreme Court opinions have clarified how Indiana courts should analyze foreseeability to determine whether a duty of care is owed to the plaintiff. Similarly, for Daube the fact that accidentally inflicted harm is subsumed under a wider concept of error within Aristotle’s scheme shows its relative unimportance: Daube, Aspects (n 114) 150. While there is detailed discussion of the borderline between the statutory actions and the Praetorian ones,132 there is very little in Digest 9.2 about the scope of the latter; that is, about the outer boundaries of liability in cases where harm was indirectly inflicted. In particular, he makes the following observation:50. The translation given here is taken from Watson’s Digest, with some adjustments: Alan Watson (ed), The Digest of Justinian Vol 1 (University of Pennsylvania Press 1998). Foreseeability of harm The foreseeability of damage and the degree of proximity or neighbourhood between the parties are of course closely related issues: a duty of care is owed only where the defendant can foresee injury to a person who is his or her neighbour in the sense explained by Lord Atkin. See the 1817 English translation of the 1748 edition by Thomas Nugent (The Principles of Natural and Politic Law) 241–42. Both indigenous and comparative (specifically South African) evidence suggests that Lord Atkin’s formulation of the duty of care test was influenced by a particular fragment contained in Title 9.2 of Justinian’s Digest, ‘On the lex Aquilia’. Nichomachean Ethics V.8.6 (1135b). JC Hasse, Die culpa des römischen Rechts: eine civilistische Abhandlung. The foreseeability of harm is a prerequisite for the recovery of damages. Received into the remoteness inquiry from the writings of eighteenth-century Natural lawyers35 such as Burlamaqui36 via Francis Buller’s Introduction to Trials at Nisi Prius,37 it was applied by Chief Baron Pollock in Rigby v Hewitt38 and Greenland v Chaplin39 in 1850. UK naturalisation: Who can act as referees. cf Scott, ‘Pits and Pruners’ (n 98) 263–64. Foreseeability. Negligence presupposes a duty of taking care and the duty of taking care presupposes knowledge or its equivalent[i]. Negligence and Duty of Care Negligence. For full access to this pdf, sign in to an existing account, or purchase an annual subscription. Cairns ‘English Torts and Roman Delicts’ (n 51) 874. From there it migrated to breach40 (as in the Blythe case41) and thence to duty of care, as in Heaven v Pender and ultimately Donoghue itself.42, However, I want to suggest an alternative—or at least additional—explanation.43 Title 9.2 of Justinian’s Digest contains the following famous text:44. Duty of Care meaning in law. In support of this general principle Pollock referred to Heaven v Pender at 507 rather than to the general principle at 509. Was its nature and function there similar to that assigned to it by Lord Atkin? If foreseeability and proximity are established, a “prima facie” duty of care is said to arise. The factual component of the duty of care inquiry—that harm to the claimant as a result of the defendant’s conduct was reasonably foreseeable by the defendant—has been entrenched in English law since Donoghue v Stevenson. The test for duty of care is now that set down by Caparo v Dickman. When determining if the Defendant owed a duty of care to the Plaintiff, the court will examine whether it was reasonably foreseeable that there would be an injury to the particular plaintiff. But as Paul shows in these two texts, they will not invariably coincide. On the other hand, the circumstances of a case may be of such kind as to require only a very low degree of care and effort; it even may be that culpa levis cannot come into existence, because no diligence, the omission of which would imply culpa levis, can be required according to the facts of the case … a diligens pater familias, although he would look round in order to avoid injury to people passing by, if he were lopping trees in places where people are accustomed to walk, certainly would not take such care in a place where there is absolutely no way, and therefore a passer-by cannot be expected. For starters, there has to be a “duty of care” owed by someone to you (e.g., a driver’s duty act as a reasonable driver), and … 2009] FORESEEABILITY IN NEGLIGENCE 1249 foreseeability in breach, duty, and proximate cause; that is the topic of this Article. When determining if the Defendant owed a duty of care to the Plaintiff, the court will examine whether it was reasonably foreseeable that there would be an injury to the particular plaintiff. Fusi 1934) 79, 88–89—that the Roman dolus/culpa/casus typology was Aristotelian in origin: see Roman Law: Linguistic, Social, and Philosophical Aspects (Edinburgh University Press 1969) 131–56. In some circumstances the likelihood of harm may be viewed to be that low that it otherwise would not be considered, but the seriousness of harm is so severe that this supersedes the low likelihood and therefore it has to be viewed as if it was reasonably foreseeable. ‘We know he wrote a book of definitions, and there is nothing suspicious in a lawyer of known Stoic inclinations adopting an analysis in terms of the actor’s foresight.’ Ibbetson ‘Wrongs and Responsibility’ (n 97) 117. But see R Sorabji, Necessity, Cause and Blame (Duckworth 1980) ch 17, especially 278–81 (discussed further in the next note). Instead, it constituted only a technique for demonstrating the avoidability of the accident, at the instance of either party, by virtue of its predictability. First, the use of the positive (Paul) and negative (Aristotle) formulations is telling. With the possible exception of D 9.2.30.3 (Paul Book 22 On the Edict). 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