Nicholas McBride (University of Cambridge – Faculty of Law) has posted Three Dangerous Ideas in the Law on Liability for Omissions in Negligence on SSRN. Here is the abstract:
This paper discusses three bases for finding a positive duty to act to save someone from harm that are recognised in English law – (i) assumption of responsibility; (ii) interference with rescue by another; and (iii) the demands of common humanity – and the potential problems created by these bases for finding a duty to act.
And from the conclusion:
Despite the new orthodoxy established by Michael and the subsequent caselaw, enough has been said to establish that those who dislike the new orthodoxy will not lack for arguments from within that orthodoxy that will ultimately tend to undermine it. In this essay, I have set out what those arguments are likely to be, and how they should be handled in a way that maintains the current limits on when one person will owe another a duty of care to save that other from injury. I have obviously not said a word in defence of those limits. But I hope I have said enough to ensure that if those limits are eventually overthrown in England and Wales at some point in the course of the 21st century, they are overthrown through a full-frontal assault rather than a sneak attack from behind. Big changes in the law demand that big arguments be made in their favour; they should not be brought about through playing games with words.
Recommended!
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