THE DUTY OF CARE IN NEGLIGENCE: RECENTLY EXPRESSED POLICY ELEMENTS—PART II

Published date01 September 1971
Date01 September 1971
DOIhttp://doi.org/10.1111/j.1468-2230.1971.tb02347.x
THE
DUTY
OF
CARE IN NEGLIGElNCE:
RECENTLY EXPRESSED POLICY
ELEMENTS-PART
I1
(continued
jronz
p.
409,
ante)
(2)
The
public interest
or
looking
over the shoulder
factor
Another policy factor which is gaining increasing attention from
the courts
is
whether the imposition of a duty of care will cause the
class of persons on whom it would potentially fall to be
so
circum-
spect in their work that, on balance, the public at large would
suffer to an unreasonable degree.’ This factor, therefore,
has
particular relevance to the professions which render public services
such as doctors, teachers, barristers, and even prison officers and
salvors of ships.” Coupled with this factor is the related idea that
any duty which will cause excessive hardship
to
a
defendant should
be avoided; the latter, for example,
to
some extent explains the
anomalous immunity from negligence of keepers of cattle (and dogs)
which escape and cause damage on the highway (the so-called rule
in
Searle
V.
Wallbank
9,
and the relatively unprotected position of
the trespasser and the physically abnormal plaintiff. The position
of
the latter is now partly remedied in the case
of
the blind, at any
rate, by the House of Lords in
Zinley
v.
L.E.B.5
As
Lord Denning
stated in
IZaley’s
case in the Court of Appeal:
it would be too
great a tax on the ordinary business of life if special precautions had
to be taken to protect the blind.”
1
See DP‘wrick,
Justice According to the
English
Common
Lawyers
(1961) at
p.
140:
In
short, social juatice is realised in
a
particular community when
judgm and legislators, faced with concrete sooial problems or confliots, perform
their respective
rola
so
as
to give effect to the greatest total
of
interests or the
interests which weigh most in this community with the least sacrifice
of
the
scheme of interests
as
a whole.”
2
See the recent oase of
The
Tojo
Meru
8[1971]
I
All
E.R.
11110, esp.
at
p.
114,
per
Lord Reid.
(“
It
is said that public policy requires
and
always has required
that every proper encouragement -should- be given
to
salvors.”)
3
[1947]
1
All
E.R.
12
(H.L.).
S.
8
of
the new Animals
Act
1971 abrogates
the
common law rule restricting
a
person’s duty to take oare to avoid damage
being caused by animals straying on the highway.
4
See recently dicta
in
Herrington
v.
B.R.
Board
1971
1
A11
E.R.
897;
there,
Salmon
IJJ.
(at p.
902)
rejected
the argument 6at i!
the
duty,pf care owed
to
a
trespasser were the same
as
that owed
to
anyone else, the position
of
the owners
and
occupiers of land would be intolerable and certainly the
task
of
the defendants in maintaining
8,
proper railway service impossible.”
Similarly, Edmund Davies
L.J.
(at
p.
908)
rejects the
alarmist
view
that the probable outcome
of
imposing any duty of care towards trespassers
wonld render occupation
of
property
5
[1964]
3
All E.R. ,185.
6
[1963]
3
All
E.R.
1003,
1005. See also Lord Saheson in
!$e
Scottish case of
M’Kibbon
v.
Glasgoto
Corporation.
1920
S.C.
590,
598:
They [the publlc
authorities]
do
not need,,
to
pad the lampposts, for instance, because blind
persons use the streets.
intolerably burdensome.”
528

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