Spandeck: A Relational View of the Duty of Care
| Pages | 263-290 |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Author | Soh Kian Peng |
| Subject Matter | Derecho Civil |
Spandeck: A Relational View of the Duty of Care 263
Spandeck: A Relational
View of the Duty of Care
S K P*
A
The use of a general framework in the determination of a duty of care has
seemingly fallen out of favour following the UK Supreme Court’s decision
in Robinson. Relying on the example of the Spandeck framework in Singaporean
jurisprudence, this piece presents the argument that such frameworks, being
consistent with a relational conception of tort law, can provide a useful means of
determining whether a duty of care exists. In so doing, this piece addresses some
criticisms of the relational view and re-emphasises the important role the duty of
care plays in the tort of neg ligence.
Keywords: tort, negligence, corrective justice, duty of care, Spandeck
I. I
Almost 90 years have passed since the seminal judgment in Donoghue v Stevenson.1
Yet the duty of care concept remains fraught and contested.2 The lack of a clear
approach is problematic.3 Tort law, being a “social and evolutionary phenomenon
* LL.B., summa cum laude (Singapore Management University). I would like to thank Professor
Gary Chan for his comments on earlier drafts of this article, and Associate Professor Maartje De
Visser, Mr Vincent Ooi and Ms Ong Ee Ing for their encouragement. The usual caveat applies.
kianpengsoh.2017@law.smu.edu.sg.
1 [1932] AC 562.
2 See Robinson v Chief Constable of West Yorkshire Police [2018] 2 All ER 1041 [21], [30], [83], [100].
3 Andrew Clarke and John Devereux, ‘Hard Cases Making Bad Law: The Elusive Search for a Test
for Duty of Care’ (2019) 26 Tort L Rev 177, 183.
Cambridge Law Review (2021) Vol VI, Issue i, 263–290
Spandeck: A Relational View of the Duty of Care264
[…] where the law and social life aect each other in complex ways”4 must therefore
continually adjust to rapidly changing social circumstances. Courts may soon be
invited to decide whether duties of care exist in novel cases.5 While existing legal
principles may be extended to cover unique factual matrices that may arise,6 these
legal principles must be coherent if they are to be meaningfully applied.
This article therefore argues that the general framework set out by the
Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency
represents a clear and principled approach to analysing a duty of care.7 Writers
have expounded on the merits of the Spandeck framework8 or have attempted to
flesh out the concept of proximity,9 but I aim to add to this literature by showing
how Spandeck is consistent with a relational theory of tort law.10
Following the introduction in Part I, this article proceeds in four parts. Part
II lays out the features of the Spandeck framework. Part III sketches out how a
relational theory of tort is reflected in the Spandeck framework. Criticisms of the
relational view and of proximity will be addressed, along with some implications
arising from the relational view of tort. Part IV explains, with reference to cases,
how Spandeck reflects this relational view sketched out in Part III. Slight changes
are proposed to the Spandeck formulation to better align it with the relational view.
Part V concludes.
II. F O Spandeck
Spandeck is a two-stage test prefaced by the threshold requirement of factual
foreseeability. The threshold requirement of factual foreseeability is a low one that
will invariably be satisfied in most cases.11 Here, the courts examine the facts to
4 Peter Cane, Key Ideas in Tort Law (Bloomsbury, 2017) 81–82; Goh Yihan, ‘Tort Law in the Face of
Land Scarcity in Singapore’ (2009) 26(2) Arizona J of Intl & Comparative L 335.
5 Oscar Willhelm Nilsson v General Motors LLC (ND Cal) (Trial Pleading) WL 514625 (2018). The Plain-
ti in this case was involved in an accident with a self-driving vehicle. He sued General Motors
(“GM”) in the tort of negligence, alleging that GM owed him a duty to have its self-driving vehicle
operate in a manner which obeyed trac laws and regulations.
6 Dorset Yacht Co. Ltd v Home Oce [1970] AC 1004, 1026–27.
7 [2007] 4 SLR(R) 100 [72]. See also David Tan and Goh Yihan, ‘The Promise of Universality’
(2013) 25 SAcLJ 510 [4]–[8]; Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others (CA) [2013] 3
SLR 284 [54].
8 David Tan, ‘The End of the Search for a Universal Touchstone for Duty of Care?’ (2019) 135
LQR 200.
9 David Tan, ‘The Salient Features of Proximity: Examining the Spandeck Formulation for Establish-
ing a Duty of Care’ (2010) SJLS 459, 469 – 481.
10 See generally Ernest Weinrib, ‘The Disintegration of Duty’ (2006) 31(2) Advocates Quarterly 212,
233–45.
11 Spandeck (n 7) [75]–[76].
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