Wed, 10 May 2006 07:17:43 +0100
Childs v Desomeaux
exactly would you include in the "creation of risk"
role? I assume most would exclude G. You would all of course include
A. Would you include B, C, D, and E? It all depends on your definition
of "risk creation". (To recap: B did the inviting and
paying, it was C's wine, D was the designated driver, and E served
the dinner and uncorked and poured the wine, for a fee.)
conduct, of any kind, creates some sort of risk for other people.
This morning I got out of bed, cycled into work, kissed my children
and sat down and wrote this. All of these are actions which create
risks for other people. (The last creating the risk that the reader
will be so furious with my response that he'll keel over dead.)
because these are examples of conduct all of which create risks
for other people, are they cases where I should have refrained from
acting? If my kiss passed on a disease, my cycling caused an accident
or my getting out of bed injured my wife am I liable? Not unless
I have been careless. The law draws a line between everyone's else's
interest in not being harmed and my liberty of action.
is literally not acting. (I ignore cases like Sutradhar
where a careless action has failed to confer a benefit).
returning to the hypothetical, the only party whose liability can
absolutely be rules out on the ground is G. Is serving dinner and
uncorking a bottle of wine action which you must take care in carrying
out? Yes of course. Is providing wine? Yes? And so on.
does this mean that all of these people are liable to F? Of course
not. Can the law require people not to open bottles of wine? No.
What we need to ask is whether this sort of conduct is careless.
If I open a bottle of wine and pour you a glass am I expected every
time to say "make sure you don't drink too much?" Of course
not, that would be unreasonable nannying. We need to know whether
it is an unreasonable risk. We cannot duck these questions by trying
to re-characterise action as if it wasn't. We have to identify the
relevant conduct and see if it was unreasonable in relation to the
relevant injured claimant.
problem with Childs is it tries to duck the difficult question
by creating a bright line rule. Perhaps they don't trust the courts
at first instance to provide the answers.
University of Oxford
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