EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONSH v S
PART 4
FORESEEABILITY AND PROXIMITY
Foreseeability
"Foreseeability" has been put forward as a test for more than a hundred years. It is not the only test which can be used, nor is it determinative in every case, but it is once of the most useful tests. It describes the limit to the "area" which extends around, and outwards from, the defendant and his conduct. The defendant and his conduct are the central points within this "area" delimited by "foreseeability".
"Foreseeability" encompasses not only that which the defendant foresaw, but that which the defendant ought to have foreseen. It is of particular assistance when the defendant is not natural person, for only natural people can actually "foresee" anything. A legal person's foresight is always imputed foresight.
Heaven v Pender foreseeability was remembered in Burnie Ports v General Jones:
"The "larger proposition" formulated by Brett MR in Heaven v. Pender was one of foreseeability ((89) (1883) 11 QBD at 509.):
"whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger"."Proximity of Relationship
The central feature in all of the negligence cases is the reference to the existence of nexes, but these are described using the language of geometry on a the surface of a plane.
This has occurred because in the seminal case of M'Alister (also known as Donoghue) v Stevenson, Lord Atkin used rhetoric. His judgement is eloquent, elegant and persuasive, and he used language characterised by artificial expression. He used words which describe spatial connection on the surface of a plane- neighbour, foresee, proximate- to carry understanding of connections which exist in a very different context.
Lord Atkin was so persuasive that not only did his concepts become rules of law, but the particular words he used were also retained. The nature of the relevant legal principles has sometimes been obscured because his rhetorical words have been divorced from their original context in the later statements about particular principles.
In identifying relevant principles in this case, frequently I have used the word "nexus" to describe connections which exist in law. I have used this word (which means "a bond or a link, a means of connection") because it is devoid of superfluous connotations (whether derived from geometry or any other context).
Lord Atkin used the word "proximate" to make it clear that there must not merely be a nexus: the nexus must be a nexus capable of giving rise to a duty of care. From the cases, it is clear that preconditions to the emergence of a duty of care (whatever the nature and scope of the particular duty may be) include more than one nexus.
The limiting test "proximity of relationship" is essentially concerned with nexes, for in this context "relationship" does not mean only a relationship between one person and another. It also refers to nexes between people and events. As with "foreseeability", this test defines an "area" extending around a "central point", but the "central point" is a nexus ("relationship"). The "central point" is not confined to the defendant and his conduct.
One of the best analyses is that of Mr. Justice Deane in Sutherland Shire Council v Heyman, where he said:
"The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff.
It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained.
It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance.
...The requirement of a relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed.In Heyman, Mr. Justice Deane makes it clear that when determining whether or not a nexus exists which can give rise to a duty of care in a particular case, that which may appear to be a sufficient nexus may be found to be a tenuous nexus when the "reasonable man" test is applied:
"Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction.
On the other hand, the identification of the content of that requirement in such an area should not be either ostensibly or actually divorced from notions of what is "fair and reasonable" ...or from the considerations of public policy which underlie and enlighten the existence and content of the requirement."In the context of negligence, nexes do not operate in isolation.
A relatively weak nexus can be strengthened by other stronger nexes, and vice versa. In M'Alister also known as Donoghue v Stevenson, Lord Atkin discussed this, and he used in his example the nature of the goods in the defendant's possession: the holder of dangerous substances would be found to have a nexus with, and a duty of care towards, a wider range of people than would the holder of goods not so inherently dangerous, even if the quantified loss and the careless conduct were the same. The nexus between plaintiff and defendant would be strengthened by the nexus between the defendant's conduct and the plaintiff's injury if the defendant's conduct included handling inherently dangerous goods.
Cook v Cook is an example of the nexus between the plaintiff and the defendant being a nexus weakening other nexes (the injured passenger was a relative who knew the driver had no licence and was not an experienced driver); in Gala v Preston the nexus between plaintiff and defendant established that no duty of care was owed (the driver and passenger had stolen the car before the driver crashed it). In Lowns v Woods, there was almost no nexus between the plaintiff and the defendant Dr. Lowns, but the court found other nexes that sufficiently strengthened the plaintiff-defendant nexus and a duty of care emerged.
The difficulty with nexes is that their variety is infinite. The variety is infinite because there is infinite variety in evidence. It is evidence which establishes a nexus. There is infinite variety in evidence, but for there to be a nexus, there must be evidence which establishes the nexus, and this evidence must be of sufficient weight.
Mr. Justice Cox referred to this in Wood v Stefaniak , a case concerned with the existence or otherwise of a connection between the defendant's conduct and the plaintiff's injury:
"In my opinion, this case is not really about the law of causation, but about the sufficiency of evidence. The learned judge was entitled to prefer the defendant's expert witnesses and to take the view of the evidence that he did, namely, that it did not support the appellant's case that the disc lesions that were discovered a considerable time after the accident were caused by the accident or made symptomatic by the accident."
Cumulatively, the nature and content of the nexes determine the nature and scope of the duty of care. The nature and scope of a duty of care is of importance, for if no duty is owed there can be no breach of the duty. There is no breach of the duty of care if either the plaintiff's loss or the defendant's conduct (or both) lie outside the nature and scope of the duty of care.
The four common features
In many of the negligence cases discussion is concentrated upon whether there is sufficient nexus, and how this is ascertained in the particular circumstances. Concentration is focused on the link itself, rather than on what is, or may be, linked.
Without individually detailing the circumstances in each and every one of the negligence cases, it appears to me that each and every one has four common features.
The common features are:
a) a plaintiff who is a person;
b) harm to the plaintiff;
c) a defendant who is a person; and
d) the defendant's conduct.
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Last updated April 15, 1997
