Date: Fri, 16 Jun 2006 14:11:32 +0100

From: Adam Kramer

Subject: Do duties of care ever die?

Dear all,

Perhaps I should rephrase the ‘death of duties of care’ question, although I fear plain English is about to go out of the window:

Is it good law (i.e. does the law allow a court to determine that) the class of persons to whom a duty is owed is delimited by factors that are contingent on the occurrence of subsequent events. I.e. could a court find that a manufacturer owed a duty to all who come into contact with a particular dangerous product unless and until a particular event (a type of inspection, foolish act of the claimant or a third party etc) occurs in the future; and that the manufacturer owes no duty to those who come into contact with the dangerous article after that particular event (if the event occurs, which it may never do). I would say that such matters are best left to causation etc., and that duties cannot be limited in this way.

Adam

-----Original Message-----
From: David Cheifetz
Sent: 16 June 2006 13:54
Subject: [Spam?] RE: ODG: Do duties of care ever die?

David,

Not really, if we still adhere to the traditional common law explanation for the meaning of changes in the law - there they are Platonic forms in the sense I think you mean. Under that explanation (discarded as fairy tale - even by the House of Lord: the SCC hasn't yet decided the point) the duty never existed if the decision asserting its existence is subsequently overruled. We can be cute and say what "died" was the mistaken belief in the duty; but it's still a dodge.

As you know, in constitutional matters, we have decisions affirming the validity of certain acts done in the past even though, subsequently, the legislation which is the foundation for their validity is declared unconstitutional and to have always been unconstitutional.

Anyway, the issue we're almost discussing in part underlies the prospective overruling debate.

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