Principle, Pragmatism, and Policy in Determining the Scope of the Duty of Care and Extent of Liability for Consequences
University of Cambridge, GB
B.A. (Hons) Law (Candidate), Selwyn College, University of Cambridge.
Manchester Building Society v Grant Thornton UK LLP and Meadows v Khan are twin Supreme Court judgments concerning what is often termed the scope of the duty of care in negligence. This controversial principle seeks to determine whether a loss (or part thereof) factually caused by the defendant’s negligence is attributable to the defendant, or whether the defendant is not liable because the loss is outside the scope of their duty of care. In both cases, the decision was unanimous but their Lordships disagreed as to how the principle should be formulated and addressed. This note critically analyses three issues arising from the judgment. First, it evaluates the conceptual propriety of treating the principle as involving two separate issues, namely the scope of the defendant’s duty and whether the claimant’s loss falls within it (i.e., the extent of liability for consequences) and concludes that keeping the issues apart, as the majority did, is preferable. Second, however, it argues that the majority’s treatment of the second issue was overly brief and suggests two possible approaches, extrapolated from the majority’s reasoning and Lord Leggatt’s concurring judgments respectively, to determine whether the defendant’s extent of liability encompasses a particular loss. Finally, it considers the role of policy-based reasoning in determining the scope of the defendant’s duty and argues that it remains a useful tool to supplement the majority’s focus on the purpose for which the duty existed and the parties’ relationship, which in itself may occasionally lead to confusion.
How to Cite:
Pang, L., 2021. Principle, Pragmatism, and Policy in Determining the Scope of the Duty of Care and Extent of Liability for Consequences. LSE Law Review, 7(1), pp.166–180.
14 Nov 2021.