¹ [1978] A.C. 728.

² [1932] A.C. 562.

³ [1990] 2 All E.R. 908.

⁴ 9–0 if you count the extra two Law Lords sitting in the companion case Department of the Environment v. Thomas Bates [1990] 2 All E.R. 943.

⁵ According to a LEXIS search.

⁶ [1972] 1 Q.B. 373.

⁷ Lord Mackay L.C. at [1990] 2 All E.R. 912.

⁸ [1985] A.C. 210.

⁹ Lord Wilberforce's two-stage test for the existence of a duty of care occurs at [1978] A.C. 751–752. Lord Wilberforce said, “First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter-in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.”

¹⁰ [1983] A.C. 520.

¹¹ Leigh and Sillavan v. Aliakmon Shipping Co. [1986] A.C. 785.

¹² See his speech in McLoughlin v. O'Brian [1983] A.C. 410.

¹³ E.g. ,“Proximity is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances…“ (Lord Oliver in Caparo v. Dickman [1990] 2 W.L.R. 358 at 379.

¹⁴ E.g., Lord Bridge in Caparo v. Dickman [1990] 2 W.L.R. 358 at 365, approving dicta of Brennan J. in Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1 (High Court of Australia) at 43–44. See below, text at notes 45–47.

¹⁵ [1987] A.C. 750.

¹⁶ E.g., Unger, R., “The Critical Legal Studies Movement” (1983) 96 Harvard L.R. 563.Google Scholar

¹⁷ [1988] A.C. 1013.

¹⁸ [1989] A.C. 1228.

¹⁹ [1989] 1 Ch. 428 (C.A.)

²⁰ [1989] 1 Q.B. 1 (C.A.)

²¹ See also, for a similar point made in the context of procedural law, Business Computers v. Registrar of Companies [1988] 1 Ch. 229 (Ch.D.)

²² See Official Report H.L. 5th Series vol. 472 col. 797 et seq., vol. 474 col. 34 et seq., H.C. 6th Series vol. 99 col. 443 et seq. Anns v. Merton was admittedly attacked by M.P.s representing the architects’ lobby, see H.C. 6th Series vol. 99 cols. 450–451, but it is significant that these attacks made no impression on the Act itself.

²³ Official Report H.L. 5th series vol. 474 col. 34.

²⁴ The one obvious exception to this trend is Lawton v. BOC Transhield [1987] I.C.R. 7, where the court approved in principle of negligence actions by disappointed job-hunters against people who carelessly give inaccurate references, despite the fact that the topic is one covered by defamation law. For what is probably the Keithian orthodoxy on such questions, see A. Tettenbom [1987] C.L.J. 390 at 392.

²⁵ This point is the main thrust of The Aliakmon [1986] A.C. 785, but it is doubtful whether it is in fact relevant to that particular case since, as Lord Brandon points out, the law in question was far from settled. Margarine Union v. Cambay Prince (The Wear Breeze) [1969] 1 Q.B. 219 had decided the point at issue one way, and Schiffahrt and Kohlen v. Chelsea Maritime (The Irene's Success) [1982] Q.B. 481 had decided it the other way. It is hard to see, therefore, how anyone at the time of The Aliakmon could have had any legitimately settled expectations about the matter.

²⁶ [1990] 2 W.L.R. 358. See below, text at notes 67–70.

²⁷ E.g., Kirkham v. Chief Constable of Greater Manchester [1990] 2 W.L.R. 987.

²⁸ See e.g. Bramwell's decision in Holmes v. Mather (1875)Google Scholar L.R. 10 Ex. 261. The defendant decided to try out his new horses on the street, and lost control of them after they were startled by a dog. The defendant's carriage ran into the plaintiff. Bramwell B. decided for the defendant on grounds that had entirely to do with the driving of the carriage after the horses had run away and he ignored completely the implications of the defendant's initial decision to exercise the horses on the street.

²⁹ [1973] Q.B. 27, 38.

³⁰ [1988] A.C. 1013 at 1059. The reference to Pharisees and Samaritans is, of course, not so much a reference to the original Biblical parable (10 Luke 25–37), as to a passage in Lord Atkin's speech in Donoghue v. Stevenson [1932] A.C. 562. But lawyers might do well to reflect on the original. The Samaritan, a traditional enemy of the injured Judean, is declared to be the true neighbour of the Judean “because he shewed mercy on him” (10 Luke 37), unlike the Judean's fellow countrymen, the priest and the Levite, who “passed by on the other side” (10 Luke 31 and 32). Thus, the “neighbour” is not the person who had a “special” or“pre-existing” relationship with the injured man, the one who might be thought perhaps to be “proximate” to him, but instead is the person who acts in proper manner, even towards an enemy.

³¹ [1989] 1 A.C. 53.

³² [1988] 1 A.C. 175.

³³ On the other hand, it seems that local authorities will not benefit enormously from the overruling of Anns. Their insurance premiums, apparently, have not been lowered to reflect the reduction in potential liability, for the simple reason that Anns-type cases happened so rarely that their marginal effect on local authorities’ total exposure to liability was negligible.

³⁴ [1990] A.C. 831.

³⁵ Note also that Smith v. Eric Bush does not apply in Scotland, where, apparently, the surveyors’ exemption clauses cannot be attacked under the Unfair Contract Terms Act 1977. Robbie v. Graham and Sibbald (1989) 38 E.G. 124.

³⁶ E.g. in Sidaway v. Bethlem Royal Hospital [1985] A.C. 871. See also Hill v. Chief Constable of West Yorkshire [1989] A.C. 53 for the analogous, and novel, notion of defensive policing.

³⁷ See generally B. Markesinis, “Litigation-mania in England, Germany, and the USA: Are We so very Different?” [1990] C.L.J. 233.

³⁸ Ibid.

³⁹ (1931) 174 N.E. 441.

⁴⁰ (1986) 816 U.S. 858.

⁴¹ It must be remarked that the House of Lords' interpretation of the East River Steamship case reveals alarming ignorance of both the legal system of the United States and the substantive law of many of its jurisdictions. Lords Keith, Bridge and Jauncey all seem to believe that the authority of cases on state law heard in state courts can be affected by a decision of the U.S. Supreme Court sitting in Admiralty. For example, Lords Keith and Jauncey both think that the East River Steamship case “destroys the authority” of the New York case Quackenbush v. Ford Motor Co. (1915) 167 App. Div. 433. This is nonsense. New York law cannot be disturbed by the Federal Courts unless they adjudge that it violates the U.S. Constitution. Ordinary common law cases rarely have this result, and the authority of the East River Steamship case in New York is, in formal terms, no more or less than that of a decision of the highest court of any other foreign jurisdiction. As for substantive law, the Law Lords seem unaware of the vast differences between English law and the law of most American jurisdictions on the subject of warranties, which, according to Blackmun J., is the law that should control a case such as East River Steamship. In England, warranties are subject to a strict version of the doctrine of privity of contract, so that a warranty can only have legal effect as between the contracting parties. This is not so in the US. Most states relax the requirement of privity of contract for at least some kinds of warranty, warranties for safety in particular (see e.g. Henningsen v. Bloomfield Motors (1960) 32 N.J. 358, 161 A. 2d 69 (Supreme Court of New Jersey)). The requirement of privity has also been relaxed in many states in economic loss cases, where, for example, the buyer sues a manufacturer directly for breach of an express warranty of quality (see e.g. Randy Knitwear v. American Cyanamid (1962) 11 N.Y . 2d 5, 226 N.Y.S. 2d 363). A number of states apparently even allow warranty actions regardless of privity on the basis of implied warranties (see generally, 1989 Supplement to 16 A.L.R. 3d pp. 27–30). The Federal Courts tend to be more cautious, in cases in which they are called upon to interpret state law, but one should note that the Supreme Court of the United States in East River Steamship did not decide the point one way or the other, for warranty actions were in its view still contractual in origin and its Admiralty jurisdiction does not extend to contractual actions of this type (see 476 U.S. 872, footnote 7).

⁴² Hepple, B. and Matthews, M., Tort: Cases And Materials, (London; Butterworths, 1985), p. 30.Google Scholar

⁴³ Buckland, W., “The Duty to Take Care”(1935) 51 L.Q.R. 637.Google Scholar

⁴⁴ See e.g. David, R., English Law and French Law (London; Stevens, 1976) p. 153.Google Scholar Admittedly, French law is capable of reaching conclusions that would be thought extraordinary elsewhere, but this has not done any obvious damage to the operation of the law of obligations in France or to French society in general.

⁴⁵ Occasionally, arguments are brought forward that supposedly refute the contention that descriptions cannot by themselves support prescriptions. They mostly reduce to one of two points. The first maintains that there are some “descriptions” that are inherently normative. For example, if I say that “X made a promise to Y”, I am automatically asserting that X ought to keep her promise. Any other interpretation, it is claimed, simply misunderstands the notion of “promise”. But all that this point shows is that when a normative premise is introduced, even tacitly, normative conclusions can properly flow from it. It does not show that normative conclusions can flow from descriptive premises. The second point is designed to meet this objection. It maintains that there is no clear way in which normative statements can be distinguished from descriptive ones. This is undoubtedly correct, but it is irrelevant. Some statements (e.g., “The plaintiff was ten metres away from the accident”) are clearly descriptive. Others (e.g., “the defendant ought to have kept a better look out”) are clearly normative. The fact that other statements (e.g., “the victim of the accident was the plaintiff's brother”) may be taken either in a descriptive sense or in a normative sense (i.e., “brother” may either be a biological term, or a term that imports a presumed obligation to care for and support someone else) does not affect the logical problem of deriving “ought” statements from “is” statements. It merely reminds us that many terms are ambiguous and that care should be taken when using them.

⁴⁶ [1990] 2 W.L.R. 358, 365.

⁴⁷ (1985) 60 A.L.R. 1, 43–44.

⁴⁸ The chief reason given in Murphy for formally overruling Anns was that it had “not proceeded[ed] on any basis of established principle, but [had] introduced a new species of liability” (Lord Keith), and that it “was certainly without precedent and was . . . widely regarded as judicial legislation”(Lord Bridge).

⁴⁹ [1990] 2 W.L.R. 358 at 368 (Lord Bridge).

⁵⁰ [1987] A.C. 241. See further Markesinis, B., “Negligence, Nuisance and Affirmative Duties of Action” (1989) 105 L.Q.R. 104.Google Scholar

⁵¹ [1967] 1 A.C. 645, 662–663.

⁵² Ford v. London and South West Railway Co. (1862) 2 F. [1951] A.C. 850.

⁵³ Bolton v. Stone [1951] A.C. 850.

⁵⁴ AEC v. Latimer [1953] A.C. 643, and, at least on the interpretation of Lord Griffiths’ speech advanced above, Smith v. Littlewoods.

⁵⁵ [1961] A.C. 388.

⁵⁶ [1963] A.C. 837.

⁵⁷ [1984] Q.B. 342.

⁵⁸ [1984] Q.B. at 357. Note again the error that “circumstances”(fact) can imply a “duty”(norm).

⁵⁹ For further illuminating discussion of the question of “pure omissions”, see B. Markesinis, supra at note 50.

⁶⁰ [1987] A.C. 718.

⁶¹ [1988] A.C. 175.

⁶² The outcome of Yuen Kun Yeu is not, of course, completely indefensible. It might be perfectly justified to give regulatory authorities an immunity from the law of negligence (though not necessarily from the law of intentional wrongdoing in public office). See below, text at notes 85–89.

⁶³ Law of Torts, 7th ed. (Sydney, The Law Book Company, 1987), p. 126.Google Scholar

⁶⁴ [1989] A.C. 53.

⁶⁵ [1961] A.C. 388.

⁶⁶ [1970] A.C. 1004.

⁶⁷ [19851 A.C. 210.

⁶⁸ Note, however, that the worst possible argument is that the losses in a case like Peabody should be the responsibility of the developer because the developer ought also to be expert or to have access to expert advice. Such a point goes to contributory negligence, not to liability.

⁶⁹ [1990] 2 W.L.R. 358.

⁷⁰ [1964] A.C. 465.

⁷¹ [1973] 1 Q.B. 27.

⁷² E.g. Harris, D. and Veljanovski, C., “Liability for Economic Loss in Tort” in Furmston, M. & Beale, H. (eds), Law of Tort: Policies and Trends in Liability for Damage to Property and Economic Loss (London; Duckworth, 1985).Google Scholar

⁷³ [1983] 1 A.C. 520.

⁷⁴ [1986] A.C. 785.

⁷⁵ [1986] A.C. 1.

⁷⁶ [1986] Q.B. 507.

⁷⁷ [1988] Q.B. 758.

⁷⁸ [1989] Q.B. 71.

⁷⁹ As an aside, it is worth noting that Murphy has significantly re-interpreted Junior Books v. Veitchi, at least if one follows Lord Mackay's speech. Junior Books is no longer “to be restricted to its facts” (judicial jargon for “this case is wrong, but we do not have the courage to overrule or ignore it”). Instead it is now to be seen as a straightforward application of Hedley Byrne. The sub-contractor is now said to have been liable to the customer because the customer relied on the advice of the sub-contractor about the suitability of the floor. This is plausible enough, but it should be remembered that the exact formulation of the facts relied on by the majority in Junior Books referred not to reliance on advice, but to reliance on the defendants' skill and experience. If Hedley Byrne now applies not just to explicit statements but also to implied statements, Murphy's effects on the law may not all be in the direction of the restriction of liability.

⁸⁰ [1990] A.C. 831.

⁸¹ [1980] Ch. 297.

⁸² [1989] A.C. 177.

⁸³ “Torts-The Law of the Mixed Society” (1978) 56 Texas L.R. 519.

⁸⁴ Employment Act 1982, s. 15(1), repealing section 14 of the Trade Union and Labour Relations Act 1974, (hereafter TULRA 1974).

⁸⁵ TULRA 1974, s. 13.

⁸⁶ For other recent examples of public authorities successfully claiming immunity, see Alexandrou v. Chief Constable of Merseyside, The Times, 19 February 1990; Calveley v. Chief Constable of Merseyside [1989] 1 A.C. 1228; Mills v. Winchester Diocesan Board [1989] 1 Ch. 428 (C.A.)(Charity Commissioners); JMB v. Arthur Young [1989] 2 All E.R. 105 (Bank of England); Jones v. Dept of Employment [1989] 1 Q.B. 1 (C.A.); Stephens v. Anglian Water Authority [1987] 1 W.L.R. 1381 (C.A.) (sed quaere whether the same decision would be justified after privatisation?) For cases where claims for immunity failed see e.g. Sylvester v. Edwards 30 March 1990 (LEXIS Transcript) (police cause injury while pursuing criminals, duty argument fails but no liability because no carelessness); Kirkham v. Chief Constable of Greater Manchester [1990] 2 W.L.R. 987 (C.A.) (police successfully sued for suicide by prisoner).

⁸⁷ But see Rowling v. Takaro Properties [1988] A.C. 473.

⁸⁸ See e.g. Griffin v. School Board of Prince Edward County (1964) 377 U.S. 218. In Missouri v. Jenkins (1990) 109 L.Ed. 2d 31, the Supreme Court of the United States refused, by five votes to four, to rule that the Federal Courts have no power to order tax increases.Google Scholar

⁸⁹ For recent examples, see: Mariola Marine v. Lloyd's Register (The Morning Watch) [1990] 1 Lloyd's Rep. 547; Beaumont v. Humberts (1988) 29 E.G. 104, (1988) E.G.L.R. 171; Eckersley v. Binnie 18 Con. L.R. 1 (C.A.) (in Bingham L.J.'s dissent); Tucker v. Hampshire C.C. 3 February 1986 (C.A.) (LEXIS Transcript); Scott-Whitehead v. NCB 53 (1987) P.&C.R. 263, (1987) 2 E.G.L.R. 227.

⁹⁰ After Bolam v. Friem H.M.C. 119571 1 W.L.R. 582.

⁹¹ For the sake of completeness one should note another sort of immunity in which it is the nature of the plaintiff, rather than the nature of the defendant, that gives rise to an immunity that can be taken advantage of by a wide range of defendants. The clearest examples are cases where the plaintiff is debarred by operation of the maxim ex turpi causa non oritur actio. For a recent discussion see Pitts v. Hunt [1990] Q.B. 302 (Q.B.D.).

⁹² (1990) 140 N.L.J. 1311.

⁹³ To be strictly accurate, it is difficult to tell from the report whether Neill L.J. intends to list factors relevant to “proximity” or factors relevant to whether it would be “fair, just and reasonable” to find that a duty existed or some mixture of the two. But the very fact that the judges are beginning to conflate Lord Keith's stages two and three is itself significant, for it suggests that the courts are beginning to find “proximity” a tiresome concept and that they will return eventually to something like the Anns test.

⁹⁴ There might also be a carelessness point here. If the accounts were drawn up with only the needs of the existing shareholders in mind, and not the needs of bidders, then, provided that one thinks that such an intention made any difference to the quality of the accounts (which, admittedly, is not very likely) and that it was reasonable to ignore the needs of the bidder (again not all that reasonable a judgment), it is possible for the defendant to argue that it was acting reasonably in not modifying its conduct in order to prevent harm to the bidder.

⁹⁵ Seee.g. Morgan Crucible v. Hill Samuel, The Times 2 November 1990 (C.A.)