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

Although no one else knew this, the package containted fireworks. It exploded, and the explosion tipped over a large scale at the other end of the platform, which fell on Palsgraf and injured her. Palsgraf sued the railroad company.


Were the railroad guards negligent to Palsgraf?




According to Cardozo CJ, “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.” There could only be a duty of care when the harm was reasonably foreseeable, or foreseeable by “the eye of ordinary vigilance.” Because he did not find any duty of care, Cardozo CJ stopped his analysis there.

Andrews J, dissenting, slammed the concept of duty of care: “Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” Andrews then went on to analyze the case in terms of causation. Andrews J said that duty of care should be “prescriptive,” not “relational.”


Although it comes from the common law, Andrews J’s approach is one of the best statements of the civil law’s position in (a.1457). This approach would use causation as the safeguard for limiting liability in such cases; it would consider duty of care to be an unneccessary limitation. A classic common law reply would be expressed in terms of individual freedom and agency, saying that reasonable foreseeability allows people to make choices about what risks they are willing to take.

Conaghan and Mansell, The Wrongs of Tort, pp.11-21. (duty of care)

The fact that responsibility in negligence law is limited to persons with whom one has a particular relationship undermines the notion that the law of negligence is based on morality.

Also, in practice, insurance results in losses being spread, not shifted: this further undermines the claim that the a law of negligence based on fault is just.

Lord Atkin’s neighbour principle is vague, leaving much up to judicial discretion

Moreover, judges have to decide with the benefit of hindsight what should have been foreseeable.

Conaghan and Mansell suspect that judges found the Anns test to be too generous in establishing a  general duty of care where not contrary to some particular policy reason—that’s why they overturned it in subsequent cases.

Also, judges were uncomfortable with explicit considerations of policy, so they preferred the Caparo approach, with its vague phrase, “just and reasonable.”

The general idea was to move away from any universal principle, back to a case-by-case approach—which is the way the law worked before Donoghue v. Stevenson.

This is consistent with a view of tort law as politically neutral, free of any broader purposes.

It is no coincidence that this shift took place in the decade of Hayek and Thatcher.

However, the 1990s have seen a return to policy arguments. Anns and Caparo were “high points” in their respective directions, rather than revolutionary cases which changed subsequent law.


Relational Loss

Secondary Victims

The common law terms are “primary victim” and “secondary victim.”

The civil law terms are “immediate victim” and “victime par ricochet.”

In both common law and civil law, the wrongdoer is liable to compensate not only the primary/immediate victim, but also the person injured as a result.

If the primary/immediate victim is dead, damages can be awarded to:

the primary/immediate victim’s estate

secondary victims:

people at the scene of the accident

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