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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 10 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

just or equitable.”

Lord Millett dissented with regard to the costs of pregnancy and delivery as well as childrearing. He said that  “the law must take the birth of a normal, healthy baby to be a blessing”; “the advantages and disadvantages of parenthood are inextricably bound together.” Millett found that this reasoning led to the rejection of the McFarlanes’ claim for the pain and distress of pregnancy and delivery as well as the claim for the cost of childrearing. He refused to consider the McFarlanes’ reasons for not wanting a child. (He did, however, say that he would have awarded the McFarlanes damages for their loss of their freedom to limit the size of their family, and for the strollers, high chairs, car seats, etc. that they would need!)

Comments

I don’t see how the costs of strollers, high chairs and car seats are distinct from other costs of childrearing (food, clothing, toys, education, etc.)!

Although the plaintiff has an obligation to mitigate the injury, in all of these cases, courts rejected the suggestion that the woman should have chosen abortion or adoption.

The Obligation to Act with Care

Articulating the Obligation

Both common and civil law recognize that relationships are omnipresent, and that when you enter into relationships, you’re bound to cause damage.

Therefore, there is a certain duty to act in an acceptable way.

But is there a general duty of care for others?

In common law, there is no general duty toward others, but there is a duty toward “neighbours”:

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.). (CB1p125)

Jurisdiction

Scotland

Facts

The plaintiff became sick after drinking ginger beer from a bottle containing a decomposed snail. The plaintiff’s friend had purchased the ginger beer for her at a restaurant. The bottle was opaque, preventing either the plaintiff, her friend, or the restaurant (retailers) from seeing the snail. The plaintiff sued the manufacturer for negligence. She won before the Lord Ordinary; the decision was reversed by the Court of Session, and she is appealing the latter decision.

Issues

Can a manufacturer be liable for injury caused by a defective product? When there is no contractual relationship between manufacturer and consumer, can there be a duty of care?

Holding

Yes; the majority allowed the appeal.

Ratio

The minority argued that, since there was no direct contract between the manufacturer and the consumer, the consumer had no grounds for action on the basis of a defective product. The majority set aside the contract issue and looked at duty of care. They argued that if a manufacturer intends his/her products to be consumed, then he/she has a relationship with any possible consumer and a duty of care toward him/her. Lord Atkin articulated the “neighbour principle,” generally applicable to negligence cases: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” He defined “neighbour” as “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my attention to the acts or omissions which are called in question.”

Comments

Lord Atkin’s neighbour principle gives paramount importance to “reasonable foreseeability.”

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