The History of Foreseeability as a Legal Concept. See n 16 above. A Pernice, Zur Lehre von den Sachbeschädigungen nach römischen Rechte (H Böhlau 1867). Two drivers meeting have no contract with each other, but under certain circumstances, they have a reciprocal duty towards each other. Anyone likely to be affected by the actions or omissions of the defendant will be regarded as a reasonably foreseeable plaintiff. As in D 9.2.28 and 31 as well as Justinian’s Institutes 4.3.5. D 13.6.5.2, 3 (Ulpian Book 28 On the Edict) seems to show Quintus Mucius Scaevola working with the concept of diligentia in the context of the contract of commodatum. Duty of Care and Third-Party Actors. The deed in error is felt to be the real problem of man as man, as a thinking being; error—where thing proceeds not unexpectedly, not paralogos, not praeter rationem, but on the contrary as intended, everything goes according to plan, in the language of Aristotle you are the author of the train of events—and yet it is all flawed by ignorance, misapprehension, misjudgement, when the desired result is finally achieved, when you have killed the solider you aimed at, it turns out to be a calamity. Thus the history of foreseeability yields the material for a further critique of the duty concept, adding an historical dimension to contemporary calls to abandon the factual component of the duty of care entirely.150. On the one hand, it appears to have played a critical role in the emergence of an autonomous law of tort.24 The duty concept, derived from eighteenth-century natural-law sources,25 served as the organising device for nineteenth-century negligence.26 On the other hand, the existence of jury trials in negligence cases tended to promote the duty concept, which was ‘more-or-less firmly within the judicial domain’,27 as judges sought to limit the power of the jury: in particular, ‘the more precisely delineated [duty situations] became, the more firmly did the incidence of liability fall under the control of the judges.’28 But the progressive disappearance of the jury from negligence trials in England during the latter part of the nineteenth century and early decades of the twentieth removed this incentive to particularise.29 Thus while Heaven v Pender and the later decision of Brett MR as Lord Esher in Le Lievre v Gould 30 are significant for cementing the duty of care in the tort of negligence, equally they can be seen to represent the beginning of a decline in its importance: the generalisation of the concept implied its obsolescence. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care.Therefore it is necessary for the claimant to establish that the defendant owed them a duty of care. Ibbetson, ‘How the Romans Did for Us’ (n 47) 505. Note that in the latter version of the text the outcome is made to turn on whether the victim had had a right to walk where he did. Save my name, email, and website in this browser for the next time I comment. Here it is useful to consider the only other text in Digest 9.2 in which the idea of foreseeability figures, namely Digest 9.2.28, also excerpted from Book 10 of Paul’s commentary on the works of Sabinus:100. In particular he contrasts the treatment of the pruner case in the context of the lex Aquilia in D 9.2.31 with that in D 48.8.7 (Paul Criminal Proceedings), where the context is the lex Cornelia: here, it is said, the statute will apply only if dolus is present. The outcome of some negligence cases depends on whether the defendant owed a duty to the plaintiff. See eg Lobban, ‘The Law of Obligations: The Anglo-American Perspective’ (n 17) 1040–45. What mattered was that the harm was unforeseeable (atychema) or not unforeseeable (hamartema). ‘If either side could have shifted the balance of the argument in their favour by citing some passage from a Scottish institutional writer or from a Scottish case, then they would certainly have done so. See eg D Nolan, ‘Deconstructing the Duty of Care’ (2013) 129 LQR 559, 573; Plunkett, Duty of Care (n 11) ch 4. The approach taken in the Fleming case was confirmed in Transvaal and Rhodesian Estates Ltd v Golding 1917 AD 18. ibid 114. 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. Foreseeability is a recurring feature of the modern tort of negligence.135 It has since at least Vaughan v Menlove136 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.137 It is beyond the scope of this lecture to offer a comprehensive account of the historical processes by which foreseeability came to infuse these common-law concepts; as argued above,138 it seems likely that a test for remoteness based on reasonable foreseeability was derived from the writings of eighteenth-century Natural lawyers139 concerned with the imputability of harm, and that it passed from there into the test for breach.140 We should now note, if only in passing, that Natural lawyers such as Samuel Pufendorf were themselves looking to Aristotle,141 or at least to the Aristotelian tradition, in thinking about imputability in this way.142, The prominence of foreseeability in the modern law of negligence is a function of the conceptual orientation of the tort, which is itself a product of its historical origins in the action on the case.143 As we have seen, because they dealt almost exclusively with cases of killing, wounding, burning, and breaking rather than providing a cause of death or causing to be wounded, burnt, or broken, the Roman jurists could do without any concept of remoteness in their account of liability under the lex Aquilia; dealing with a limited range of proscribed acts, typically intentional, meant that their concept of culpa could remain relatively unsophisticated too. J Cairns, ‘English Torts and Roman Delicts: The Correspondence of James Muirhead and Frederick Pollock’ (2013) 87 Tulane L Rev 867. But as I have tried to show, Paul’s analysis was in fact a causal one, in the context of which foreseeability served merely as the subjective counterpart of avoidability. I have used the 5th edition of 1788: see 25–26. The foreseeability test basically asks whether the person causing the injury should have reasonably foreseen the general consequences that would result because of his or her conduct. What I do suggest is that these cases clearly show that the admixture of Digest 9.2.31 with the Anglo-American authorities of the time was likely to produce a general principle of precisely the kind articulated by Lord Atkin. A rope connected the carriage with the engine room from where it was controlled. But if there is no path, the defendant should be liable only for intentional wrongdoing [dolus], so he should not throw anything at someone he sees passing by; for he is not to be held to account for culpa [culpa ab eo exigenda non est] when he could not divine whether someone was about to pass through that place. In sum, the picture briefly sketched out here is a puzzling one. 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. The facts of this case will help most people understand why foreseeability is an important concept in personal injury law. See also D 9.2.51 (Julian Book 86 Digest). Negligence in its legal sense means a failure in law to do what a reasonable person would have done in the circumstances. T Mommsen, Beiträge zum Obligationenrecht (CA Schwetschke und Sohn 1853–55). At the same time, the splitting off of the duty of care inquiry from Roman culpa is striking. Two of the men were sturdily built police officers; the third was a suspected drug dealer whom they were attempting to arrest. With apologies to Alan Rodger: cf A Rodger, ‘Mrs Donoghue and Alfenus Varus’ (1988) 41 CLP 1. If we broaden our focus and consider the subset of cases discussed in Digest 9.2 which involve accidents in the narrow sense, here too it seems that culpa is essentially causal. Duty. cf also NE III.1.13 ff (1110b–1111a), where Aristotle appears to treat both kinds of cases as instances of agnoia, ignorance. See also A Fagan, ‘The German Origins of a South Africa Dogma about Delict’ in Undoing Delict: The South African Law of Delict Under the Constitution (Juta 2018) 134, 135-39. This question is which of the parties has behaved in accordance with an established social practice such as walking on a road or path,103 or throwing a javelin on a military parade ground or javelin range,104 or playing a ballgame in an appropriate place,105 or digging a bear pit where it is customary to do so.106 Where one of the parties was behaving in accordance with such a social practice, it was the other who could have avoided it and on whom the culpa rested. When doing so, the court is tasked with engaging in a general analysis of the broad type of plaintiff and harm involved without regard to the facts of the actual occurrence. See the judgment of Lord Bridge, ibid 617–18. This reading of Digest 9.2.31 was, he continued, supported by the passage from Grueber’s Roman Law of Damage to Property quoted above.79 In the Chief Justice’s words, ‘The suggested reason for exemption from liability is therefore based upon the same considerations on which liability itself would rest, —namely, the conduct of the owner tested by the standard of the reasonable man.’80, What we notice in the Farmer case, first, is the generalisation of Digest 9.2.31 beyond its original context of the dangers posed to road-users by activities over, on or near roads. According to Innes CJ, in a case such as this one the English decisions on the point86 ‘attach decisive importance to two factors, – absence of contractual privity between the landlord and the person injured and absence of control on the part of the landlord. (adsbygoogle = window.adsbygoogle || []).push({}); Foreseeability of a risk See: breach of duty In particular, he makes the following observation:50. That completes the case for the direct influence of Digest 9.2.31 on Lord Atkin’s neighbour principle. "Duty" is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. If your client is sued for negligence, determining whether it owed a duty of care to the plaintiff can make a world of difference in the outcome of the case. Ibbetson, Historical Introduction (n 24) 175–77; ‘Negligence in the Common Law’ (n 24) 246–47, 265. Donoghue v Stevenson makes its appearance in a footnote, presumably added at a late stage in the preparation of the manuscript: see RG McKerron Law of Delict (Juta 1933) 28–30 and in particular 29, fn 109. 2.12.7). Admittedly foreseeability seems to operate in this way in the context of Digest 9.2.31. Was the foreseeability principle Paul’s own invention? foreseeability , to gain clear understanding on Essentials of negligence of torts. In Canadian tort law, a duty of care requires a relationship of sufficient proximity. UK naturalisation: Who can act as referees. It is the first element that must be established to proceed with an action in negligence. Ibbetson, Historical Introduction (n 24) 167; ‘Negligence in the Common Law’ (n 24) 246. The cases cited to the court were Hardcastle v South Yorkshire Railway Co 28 LJ Ex 139 (decided in 1859) and Binks v South Yorkshire Railway Co 32 LJ QB 26 (decided in 1862). If it is lost or damaged. Because these biases are endemic—they are part of what it means to be human—they must be factored into any credible concept of foreseeability. In those circumstances, it was reasonably foreseeable that if the arrest was attempted at a time when pedestrians—especially physically vulnerable pedestrians, such as a frail and elderly woman—were close to Williams, they might be knocked into and injured in the course of his attempting to escape. The foreseeability test is used to determine whether the person causing the injury should have reasonably foreseen the consequences of the actions leading to the loss or injury. This may also be an alternative explanation for the non-liability of the soldier practising in a designated area in Institutes 4.3.4; cf also D 9.2.29 pr (Ulpian Book 18 On the Edict) See further Scott, ‘Pits and Pruners’ (n 98) 257–59, 261. Duty of care—foreseeability The test for whether the defendant was careless is whether they failed to take reasonable care to avoid acts potentially harmful to those whom a reasonable To view the latest version of this document and thousands of others like … Cardozo J referred not to the general principle at 509, quoted in n 11 above, but to a passage at 510 of the judgment in which Brett MR discussed defective products in particular: see MacPherson, ibid 388. Defendants Should Preserve “No Duty” Arguments in Negligence Cases with Pre-trial and Post-trial Motions. This point is most clearly articulated by Daube, Aspects (n 114) 134. P Winfield, ‘Duty in Tortious Negligence’ (1934) Columbia L Rev 41. A recently-published letter written to Pollock by James Muirhead, Professor of Civil Law at Edinburgh, in 1886 includes a discussion of our text;51 it is clear that Muirhead is responding to a specific question from Pollock.52 Furthermore, Erwin Grueber’s The Roman Law of Damage To Property,53 published in 1886 for the use of undergraduate students of Roman law at Oxford,54 was warmly praised by Pollock in one of the very early volumes of the Law Quarterly Review55 and favourably reviewed by Muirhead in the same volume, a review of course commissioned by Pollock himself.56 It is significant that Grueber’s account of Digest 9.2.31 appears to encourage the interpretation I have proposed here, a reading of the text in terms of which it anticipates a general foreseeability-based test for duty of care:57. But because duty is the sole element of negligence not left in the first instance to the jury, duty—and hence, foreseeability—has become the primary source of judicial power to weed out cases deemed by a judge 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. Foreseeability is a personal injury law concept that is often used to determine proximate cause after an accident. I am not suggesting any direct influence of the South African decisions on Lord Atkin, although we cannot discount the possibility that he may have read them. 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 … This view of 9.2.31 is tied to an understanding of Roman culpa as the failure to exercise the care of a bonus paterfamilias, a conception which implies a degree of moral blameworthiness.94 Such an account of Aquilian culpa is, however, open to doubt, at least insofar as it purports to describe classical Roman law. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? As in D 9.2.28. 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 account of the facts is drawn from the judgment of Innes CJ, ibid 516. As Lord Atkin himself observed in the lines immediately preceding and following the ones I have quoted, a generalisation of the duty of care in terms of reasonable foresight had already been attempted by Sir William Brett, Master of the Rolls, in Heaven v Pender at least as far back as 1883.11 Following his judgment in MacPherson v Buick Motor Company12 in 1915, in which Heaven v Pender was quoted with approval13 and a duty to inspect held to be owed by a manufacturer to the ultimate purchaser of a defective motor car,14 Cardozo CJ famously held in Palsgraf v Long Island Railroad Company in 1928 that there had been no breach of any duty owed to the plaintiff, to whom injury as a result of the defendant’s employee’s negligent conduct was unforeseeable.15 Referencing Heaven v Pender, Frederick Pollock had since the first edition of his Textbook in 1887 been advocating a general duty of care in acts.16 But the duty concept itself was in truth relatively peripheral to Pollock’s account.17 His general duty of care was formulated in the following terms: One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk … Thus we arrive at the general rule that everyone is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default.18, The emphasis thus fell not so much on the determination of duty as on negligence itself, famously defined by Baron Alderson in 1856 in Blyth v Birmingham Waterworks Company.19 Pollock was of course careful to circumscribe the operation of his general duty—several pages later, he specified that liability in negligence would arise only ‘provided, of course, that the party whose conduct is in question is already in a situation that brings him under the duty of taking care’20—but it is clear that it was fault rather than duty that constituted the focus of his analysis. The concept of foreseeability was first established in 1928 by the New York Court of Appeals in the landmark case of Palsgraf v. Long Island Railroad Co. On this view Paul’s formulation of culpa in terms of reasonable foreseeability represents ‘the continuation of a late Republican subjectivism into classical law.’ See Ibbetson ‘Wrongs and Responsibility’ (n 97) 117. eg F Wieacker, Römische Rechtsgeschichte: Quellenkunde, Rechtsbildung, Jurisprudenz und Rechtsliteratur Vol 1 (CH Beck 1988) 645–46. 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. Biases such as this one notoriously impair our human ability to assess probability. 1. cf BW Frier, A Casebook on the Roman Law of Delict (Scholars Press 1989) 29–32; D Ibbetson, ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26 UNSWLJ 475, 509. Foreseeability is also relevant to standard of care (that is, to the question of whether a duty of care has been breached) and to remoteness of damage. “ [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. At a very general level, foreseeability, with its triple role and its accordion-like 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. 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. For full access to this pdf, sign in to an existing account, or purchase an annual subscription. cf the remark to that effect by D Hutchison in ‘Aquilian Liability II (Twentieth Century)’ in R Zimmermann and D Visser (eds), Southern Cross: Civil Law and Common Law in South Africa (Juta 1996) 595, 635–36 as well as the very full discussion of the foreshadowing of the Donoghue v Stevenson neighbour principle in Cape Town Municipality v Paine by RG McKerron in the final seventh edition of his The Law of Delict: A Treatise on the Principles of Liability for Civil wrongs in the Law of South Africa (Juta 1971) at 28–30. Published by Oxford University Press on behalf of Faculty of Laws, University College London. Ibbetson Historical Introduction (n 24) 167–68. What is immediately striking about this text is that foreseeability is deployed here with respect to the victim rather than the wrongdoer. 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. 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, There is almost nothing more fundamental in English private law than the test for duty of care applied here. Rodger ‘Lord Macmillan's speech in Donoghue v Stevenson’ (n 64) 246 (footnote omitted). 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 and foreseeability are two critical factors in a premises liability case in Florida. Roscorla v Thomas (1842): consideration must not be past. I propose to discuss three in particular. 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. Daube, Aspects (n 114) 143–44. At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. See also the modern translation by Reeve (Hackett 2014). The Test of Foreseeability Foreseeability is the leading test to determine the proximate cause in tort cases. But because the actor labours under the influence of a mistake as to his victim’s identity, it is not characterised by vice (poneria) or wickedness (kakia).117 In the case of atychema, on the other hand, the consequence does indeed occur paralogos, contrary to expectation, as in the case where you confuse a sharp spear with one with a button on it.118 The function of foreseeability—or rather unforeseeability—is then to show that the harm in question was unintentionally inflicted.119 As Daube puts it, ‘[o]n the basis of the authentic Aristotle, if, while practising, you unwittingly hit a passer-by, it is paralogos, unexpected, atychema, accident, no matter whether you are in the gymnasium or on a highway.’120. 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