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foreseeable) and they were in a position to control the availability of alcohol. Now this is not to suggest that the decision is wrong given the principles upon which the law of tort operates. But fairness and equity are double-edged moral weapons. Is it fair and equitable that the wife should be deprived of the greater part of the compensation when it could be argued that the defendant could be said to have gone some way in maintaining a culture of drinking? What if the defendant had been a private commercial employer instead of the navy? 2 Another interesting, but not uncommon, dimension to this case is that the defendant is guilty of an omission rather than a positive act. It did not directly cause the victim’s death; it just failed to do enough to save his life. The fact that this was a Fatal Accidents Act claim in itself makes it a three-party situation. However, in these mere omission cases, another permutation is often encountered: the claimant sues, not the person who directly caused the damage, but a third party who had a factual and/or legal relationship with the person who caused the damage. Such a situation easily arises once one thinks in terms of a ‘duty’ owed by organisations. In a road accident case, for example, it may well be that one driver carelessly injures another, but could it not be said that the local authority also had a ‘duty’ to make this particular stretch of road safer? (Cf Stovin v Wise, p 737.) Yet ‘duty’ also becomes the means of limiting such liabilities. In order to do this, ‘duty’ needs to be translated into a factual (empirical) connection and this is done, as we have seen, through the notion of ‘proximity’ (see p 136). However ‘duty’ and ‘proximity’ are quite different concepts, since one is normative, while the other is descriptive. Do the judges always appreciate this? 3 Study CC, Art 1382. Given that there is no concept of ‘duty of care’, how might Barrett be decided under this article? LIABILITY FOR PEOPLE
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It is argued that it would be contrary to public policy to hold the Home Office or its officers liable to a member of the public for this carelessness-or, indeed, any failure of duty on their part. The basic question is: who shall bear the loss caused by that carelessness-the innocent [plaintiff] or the Home Office, who are vicariously liable for the conduct of their careless officers?… [His Lordship then discussed the American case of Williams v State of New York, where the State was held not liable for the negligence of prison warders on the ground of public policy]… It may be that public servants of the State of New York are so apprehensive, easily dissuaded from doing their duty and intent on preserving public funds from costly claims that they could be influenced in this way. But my experience leads me to believe that Her Majesty’s servants are made of sterner stuff. So, I have no hesitation in rejecting this argument. I can see no good ground in public policy for giving this immunity to a government department…

Lord Pearson:… The borstal boys were under the control of the Home Office’s officers, and control imports responsibility…

Viscount Dilhorne (dissenting):… I think that it is clear that the Donoghue v Stevenson principle cannot be regarded as an infallible test of the existence of a duty of care, nor do I think that, if that test is satisfied, there arises any presumption of the existence of such a duty…

I, of course, recognise that the common law develops by the application of well established principles to new circumstances but I cannot accept that the application of Lord Atkin’s words, which, though they applied in Deyong v Shenburn, and might have applied in Commissioner for Railways v Quinlan, were not held to impose a new duty on a master to his servant or on an occupier to a trespasser, suffices to impose a new duty on the Home Office and on others in charge of persons in lawful custody of the kind suggested…

The absence of authority shows that no such duty now exists. If there should be one, that is, in my view, a matter for the legislature and not for the courts… (See also Lord Diplock, p 177.)