Principle, Pragmatism, and Policy in Determining the Scope of the Duty of Care and Extent of Liability for Consequences
| Author | Leo Pang |
| Position | BA (Hons) Law Candidate, Selwyn College, University of Cambridge |
| Pages | 166-180 |
166
The Scope of the Duty of Care and Extent of Liability for Consequences
Vol. VII
Principle, Pragmatism, and Policy in Determining the
Scope of the Duty of Care and Extent of Liability for
Consequences
Leo Pang*
ABSTRACT
Manchester Building Society v Grant Thornton UK LLP and Meadows v Khan are twin
Supreme Court judgments concerning what is often ter med the scope of the duty of care in
negligence. This controversial principle seeks to determine whether a loss (or part thereof) factually
caused by the defendant’s negligence is attributable to the defendant, or whether the defendant is
not liable because the loss is outside the scope of their duty of care. In both cases, the decisions
were unanimous but their Lordships disagreed as to how the principle should be formulated and
addressed. This note critically analyses three issues arising from the judgment. First, it evaluates
the conceptual propriety of treating the principle as involving two separate issues, namely the scope
of the defendant’s duty and whether the claimant’s loss falls within it (i.e., the extent of liability
for consequences) and concludes that keeping the issues apart, as the majority did, is preferable.
Second, however, it argues that the majority’s treatment of the second issue was somewhat cursory
and suggests two possible approaches, extrapolated from the majority’s reasoning and Lord
Leggatt’s concurring judgments respectively, to determine whet her the defendant’s extent of
liability encompasses a particular loss. Finally, it considers the role of policy-based reasoning in
determining the scope of the defendant’s duty. It argues that policy-based reasoning remains a
useful tool to supplement the majority’s focus on the purpose for which the duty existed, which in
itself may occasionally lead to confusion.
* BA (Hons) Law Candidate, Selwyn College, University of Cambridge. The author would
like to thank the reviewers at the LSE Law Review for their helpful comments on earlier
drafts.
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