From: Robert Stevens <>
To: Jason Neyers <>
CC: ''
Date: 09/12/2009 19:26:38 UTC
Subject: Re: ODG: Novel Duties of Care

Isn't that what Toulson LJ says at the end? The result is right, even if

most of the reasoning is just noise. I don't think he is to blame for the

feebleness of the reasoning in some of the case he is obliged to follow.


>            If I don't have a general duty to perform even an easy rescue,

> how could I have a general duty maintain insurance on your

> behalf?  Where do these arguments come from?

>  Jason Neyers Associate Professor of Law Faculty of Law University of

> Western Ontario N6A 3K7 (519) 661-2111 x. 88435


>  James Lee wrote:                              Dear Colleagues,       The

> English Court of Appeal has today handed down its decision in Glaister

> &amp; Ors v Appelby-In-Westmorland Town Council [2009] EWCA Civ 1325

>, a negligence

> claim. The Court considers the criteria for finding a duty of care in a

> manner which may or may not be of assistance to law students (and

> others). The restrictive approach to &#8220;special relationship&#8221;

> cases is followed, justifiably in this case. But there are some

> observations of interest.       The claim was brought by Mr Glaister (and

> his wife and daughter) following an accident at a fair, in which Mr

> Glaister tried to catch the lead of a runaway horse. He was kicked in the

> head by the horse, and he suffered serious injuries, being left

> permanently disabled and therefore losing earning power. It was not known

> who owned the horse. At [3], Toulson LJ (with whom Jacob LJ and the

> Master of the Rolls agreed) explains the claim       &#8220;It was

> originally alleged on his behalf that the accident was caused by

> negligence on the part of the Town Council, in particular, in allowing

> horses to be tethered in close vicinity to other horses racing along the

> highway and failing to ensure that the tethered horses were properly

> supervised, but that part of the claim was abandoned. The action

> proceeded on an alternative claim that the Town Council negligently

> failed to take proper care to see that public liability insurance was

> arranged which would have covered the circumstances of the

> accident.&#8221;   The broader duty argued for, that the Council owed a

> duty of supervision, was considered, but no such duty was found:        A

> defendant, D, is not ordinarily liable to a claimant, C, for personal

> injury or physical damage caused by the negligence of a third person, T,

> merely because D could have foreseen and prevented it. Something more is

> required to place on D a duty to protect C from the consequences of

> foreseeable negligence on the part of T. The reasons for requiring more

> are partly to do with the nature of our system of tort and the concept of

> blame which underlies it, i.e. matters of legal policy, and partly

> pragmatic.                  The general policy of the law does not extend

> to holding D legally to blame for injury to C caused by the negligence of

> T on the ground that D could have prevented it. The moral tenet that you

> shall love your neighbour as yourself, and thus protect him from harm

> which you can foresee he may suffer from a third person's fault, has not

> been converted into a legal principle. As a matter of generality, to hold

> a person liable to a victim for injury for which the defendant was not

> directly to blame, but was caused by the negligence of a third person

> which the defendant could have foreseen and prevented, would shift the

> basis of tort liability towards a system for the transfer of losses

> resulting from injuries not merely caused by the default of the defendant

> but which a defendant might have been able to prevent. The practical

> consequences of such a policy shift would be potentially very far

> reaching.            I emphasise that this is no more than a starting

> point, albeit an important one. There are many cases where D may be

> liable to C for injury caused by the negligence of T, but these are

> usually cases where either a particular relationship between the claimant

> and defendant is such as to place the defendant under a duty of care for

> the safety of the claimant or a particular relationship between the

> defendant and the third person is such that the defendant should carry a

> responsibility to protect others against the conduct of the third person.

> Examples of the first category are cases where the defendant is an

> occupier of land and the claimant is a lawful visitor, and cases whether

> the defendant is the employer of the claimant. An occupier of land owes a

> general duty of care for the safety of lawful visitors, and this will

> include responsibility to see that visitors are reasonably safe from

> activities by a third person which the occupier permits to be carried out

> on his land. Similarly an employer owes a general duty for the safety of

> his employees, including safety from the foreseeable behaviour of other

> employees. Cases where the relationship between the defendant and third

> person is such as to give rise to liability to a claimant for damage

> caused by a third person include cases where the third person is an

> employee or agent of the defendant, who is held responsible for his

> conduct, and cases where the defendant has a quasi-parental

> responsibility for the acts of the third person, such as Home Office v

> Dorset Yacht Co Limited [1970] AC 1004 (where prison officers took young

> offenders on an outing and allegedly failed properly to supervise them).

>      The key issue was therefore: &#8220;Was D under a duty of care to

> ensure that appropriate public liability insurance in respect of

> negligent acts or omissions by participants in the Fair was in place?".

> Toulson LJ describes this as &#8220;novel claim&#8221; (at [50]). Noting

> difficulties with the decision in Gwilliam [2002] EWCA Civ 1041, Toulson

> LJ concluded:        These words needs to be emphasised because there is

> sometimes a tendency (as the present case shows) to pluck out the words

> "fair, just and reasonable" as if they provide some comprehensive

> touchstone. In itself, the expression means little more than that the

> court should only impose a duty of care if it considers it right to do

> so. The various speeches in Customs &amp; Excise Commissioners v Barclays

> Bank plc [2006] UKHL 28, [2007] 1 AC 181 underline the point that the

> "threefold test" provides no straightforward answer to the question

> whether in a novel situation a party owes a duty of care (Lord Bingham at

> 6, Lord Hoffmann at 35-36, Lord Rodger at 53, Lord Walker at 71 and Lord

> Mance at 93). In considering whether there is sufficient "proximity" to

> make it just and reasonable to impose a duty of care, the courts examine

> carefully the nature of the relationship between the parties and begin by

> considering whether it is reasonably analogous to other cases in which

> such a duty has been recognised. The court is looking to see whether

> there is "that special relationship of proximity which is required to

> give rise to the duty of care" to protect the claimant from economic loss

> (using the language of Lord Oliver in Caparo at 650F) &#8211; which is

> another way of framing the question posed by Lord Devlin in Hedley Byrne

> "Is the relationship between the parties in this case such that it can be

> brought within a category giving rise to a special duty?".            The

> present case does not resemble any other category of case in which

> liability has been established, so as to found an argument by analogy.

> None of the factors exist which have lead to the imposition of a duty of

> care not to cause economic loss in other cases, such as an assumption of

> responsibility by the defendant (Hedley Byrne) or the provision of a

> professional service to the claimant (Henderson v Merrett) or the

> provision of advice about a transaction involving the claimant in the

> knowledge that the claimant would be likely to rely on it (Smith v Bush

> [1990] 1 AC 831).            For a duty of care to arise, there needs to

> be something particular about the relationship between the defendant and

> the claimant, in relation to some particular transaction or activity

> likely to have economic consequences for the claimant, such that the

> claimant can properly expect to be entitled to rely on the defendant to

> safeguard him from economic harm likely to result from want of care on

> the part of the defendant. This need is reflected by the usage of the

> words "special duty" or "special relationship".            There was no

> such relationship in the present case between the Town Council and the

> many tens of thousands of members of the general public, including the

> claimants, who visited the fair.       &#8230;        Looking at the

> matter as one of general principle, if D had no duty to protect C against

> the physical consequences of an accident caused by the negligence of T, I

> would not regard it as just and reasonable to impose on D the more remote

> duty to protect C against the economic consequences of C being unable to

> enforce a judgment against T.       Best wishes,       James

> --

>  James Lee

>  Lecturer

>  Director of the LLB Programme

>    Birmingham Law   School

>    University of Birmingham

>  Edgbaston

>    Birmingham

>  B15 2TT, United Kingdom


>  Tel: +44 (0)121 414 3629

>  E-mail:


Robert Stevens

Professor of Commercial Law

University College London