Date: Thu, 4 May 2006 15:23:35 +0100

From: Robert Stevens

Subject: Childs v. Desormeaux

Professor Zipursky wrote:

[T]he social host case involves whether there is a duty to see to it that an adult guest does not act irresponsibly and dangerously as a result of being a guest and consuming alcohol that one has supplied; that is a very different question from whether there is a duty to refrain from supplying to an incompetent person a means for negligently doing great injury to others.

OK. Why does that make a difference?

That we do not have general rights good against everyone else that they confer benefits upon us (including the prevention of harm they do not by their action cause) was reaffirmed in England by the House of Lords as part of the ratio of Stovin v Wise [1996] AC 923. The Court of Appeal decision in Sutradhar I sent round is a nice application of it, but nothing more. It is perhaps indicative of English law's loss of confidence that the House of Lords felt it necessary to re-assert the point.

Of course there may be a number of ways in which a positive obligation to confer a benefit upon someone else may arise: contract, bailment, assumption of responsibility generally, statutory duties on public bodies, as a quid pro quo for the ownership of land etc, etc. However, there is no general right any of us have against others they will confer benefits upon us.

For myself, I think serving several drinks at a party to someone who you know is going to drive home is a form positive conduct which entails a risk to third parties. Someone killed by the drunk has been made worse off by your conduct. This liability is independent of any duty owed to the guest. The guest has the choice, the third party does not.

I suppose our reluctance to impose liability may spring from the fact that the host is not the party primarily responsible for the death: the drunken guest is. That liability should be restricted to the party primarily responsible is (I suppose) behind the legislation in the US cutting back joint and several liability.

These restrictions enacted on joint and several liability appear to me to be shameful. If both X and Y have infringed my right by killing me, I cannot see why X should be able to restrict his liability by saying Y was the person primarily responsible. Why should X's liability be reduced because there is another (worse) wrongdoer?

Robert Stevens
Barrister
University of Oxford

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