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On Winterbottom v. Wright and Donaghue v. Stevenson:

Q1. Can you please paraphrase the middle two paragraphs on page 98 of our readings?

A1. The point here is that before this case there were authorities (cases) that spelled out various specific duties recognized & enforced in tort, but no general principle that explained who was under a duty of care to whom. The neighbour principle is an attempt to articulate such a general principle.

Q2. In my lecture notes I wrote that Donaghue and Stevenson were connected as neighbours. I proceeded to write that Donaghue accepts the privity of contract, but comes up with an independent source of duty. Is this saying that according to privity of contract the law did not recognize a duty owed?

A2. Close. The point is that D v S didn't overturn privity of contract. That is, it didn't allow recovery on the basis of the contract b/w Stevenson and the Cafe owner. Instead it pointed to another source of duty, what we now call the duty of care, and so located the case in tort rather than contract.

Q3. Why are Winterbottom and Wright not considered neighbours?

A3. They likely would have been, had W v W been hear by the court that hear D v S. Note that the latter is 90 year after the former. So this is a change, or development in the law. If D and S are neighbours, then surely too are W and W.

On Vaughan v. Menlove:

Q4. On page 102 of our readings, in the second paragraph, it discusses reasons why the defendant believes he was not guilty. Does he claim to have not been warned of the potential danger? What, exactly, does he claim?

A4. He claims all kinds of things: an unexplained "not guilty," that the fire was "unlikely" (which would now probably be styled as "unforeseeable.") All that doesn't matter much. The case matters now because the court rejected the defence that the defendant was no possessed of the highest order of intelligence. That he was warned goes to a subjective awareness of the risk. But the important points of law are (a) that the standard of care is objective, and (b) that in some cases (like this one) the defendant will be held to that standard even if he could not attain it. (So the court doesn't bother to figure out whether he could attain it).

Q5. On page 103, it states that "the measure of prudence varies so with the varying faculties of men, that it is impossible to say what is gross negligence with reference to the standard of what is called ordinary prudence". What does this mean?

A5. This is an argument made by the defendant's counsel (R.V. Richards, in support of the rule, that is, a ruling that there should be a new trial -- the defendant having been found liable). Interestingly, Richards' point is just the inverse of the Court's: he argues that the objective standard is too imprecise to be nailed down. Tindal CJ argues that its the indeterminacy of the *subjective* standard that dictates that we need to hold defendants to an objective standard of care.

Q6. Can you please explain the paragraph on page 104 beginning "It is contended, ..."?

A6. The important point is in the middle, where the court rejects the idea that the defendant will have discharged his legal duty so long as he acted "honestly and bona fide to the best of his own judgment." That "would leave so vague a line as to afford no rule at all the degree of judgment belonging to each individual being infinitely various."

On cause-in-fact:

Q7. What is the difference between Lambton v. Mellish & Corey v. Havenar? I am confused regrading what was necessary with each and why the latter was found liable if it didn't satisfy the but-for test.

A7. In L v M, the two defendants' contributions were individually necessary but only jointly sufficient to bring about the outcome. That is, there would not have been a nuisance had only one of them played his organ, but there was given that both did. So both was a but-for cause of the harm.

C v H is in a sense the opposite. In that case, each of the two defendants' actions would have been sufficient on its own; hence only one was necessary. That is, the horse would have bolted if only one guy drove by on his motorcycle. So each can say "it is false that but-for what I did, the horse would not have bolted." So this is an e.g. of a case where the application of the but for test would have resulting in both defendants being held not liable.

But they are both held liable. No reasons are given. But it seems clearly fair.

To see why, think of a modification of L v M. Imagine both vendors turn up the volumes of their organs, until each is loud enough to constitute a nuisance on its own. Call this (L v. M)*. (L v M)* is just like C v H: each defendant's actions alone is sufficient to produce the nuisance, so only one was necessary. So either could say "it is false that but-for what I did, there would not have been a nuisance." But this is absurd: how could a defendant stop causing a nuisance by playing even louder?

So this shows that sometimes the but-for test yields the intuitively wrong result.

Q8. On page 116 of the readings, when discussing what the plaintiff in corey v. havener was entitled to, it states that "there being two actions, the plaintiff was entitled to judgment against each for the full amount. there is no injustice in this, for a satisfaction of one judgment is all that the plaintiff is entitled to." now, the plaintiff sued each defendant individually. if he was successful in one of the trials, he would most likely be successful in the other, right? would he receive double compensation, or half from each defendant? how does this relate to the passage that i quoted?

A8. The plaintiff gets to sue either for the full amount. Then that defendant can sure the other one. Or that's the law today, anyway.

Q9. On page 117 of our readings, it states that the defendant had to prove that 'his additional exposure to injury caused by his having to bicycle home unwashed caused the disease in the sense... the cause of it." now, this claims that it had to be his activities that were 'post necessary-shower' that caused the disease, right? is this the law, or am i correct that this theory is later disputed?

A9. The point is complicated. Lord Reid is concerned here to make it clear that McGhee doesn't have to prove that the skin irritation he experienced on the ride home was itself sufficient to bring about the dermatitis. So long as it "materially contributed" (i.e., contributed in some non-insignificant way) to his condition, then he will have made out causation.

Q10. Can you please explain the last two sentences of the first paragraph on page 118, and the following paragraph, (which concludes the section on cause)?

A10. This passages has been the object of a great deal of debate. The idea seems to be that if the plaintiff can show that the defendant's action or omission materially (not insignificantly) increased the risk of injury, that's just the same as showing that it materially contributed to the injury, which in turn is just the same as showing that ti caused the injury.

This is the so-called material contribution test, which in short holds that materially increasing the risk of an injury may be treated as though it were the same as causing that injury.

Q11. In my lecture notes on defences to intentional torts, i wrote down that sometimes you can be liable for a tort even though, in the sense of wrongfulness, you haven't done anything wrong. is this right? can you please give me an example?

A11. Well, in the sense of ordinary moral wrongfulness. If I step on your property in all innocence -- to pick up a piece of garbage say -- and I don't even know that its your property, or private property, its trespass, so long as I intentionally stepped on it.

Q12. When discussing why the standard of care in negligence should be objective, you gave the reason of 'evidentiary considerations'. can you please explain why?

A12. The idea is that one reason to opt for an objective standard is that its not at all clear what sort of evidence could be raised to show what I, rather than you, and rather than anyone else, was capable of, which the subjective standard seems to require.

Q13. What came out of the case Dube v. Labar?

A13. The defence of volenti succeeded, though the court notes that this was rather unusual, given that the plaintiff was drunk.

Q14. Can you please clarify the differences between the Thin Skull Rule & Smith v. Leech Brain?

A14. The thin skull rule is broader than the rule in S v LB. The latter says that so long as the injury was of a kind that was reasonably foreseeable, it doesn't matter whether its extent was (e.g., minor v. serious head injury). The TS rule says that one is liable for consequences -- even those of a different kind -- of reasonably foreseeable types of injuries, when those arise owing to the plaintiff's predispositions. Think of the facts of S v LB: cancer isn't a serious kind of burn, but here is developed from one.

Q15. Can you please explain how Hughes v. Lord Advocate shows Wagon Mound #1 should be interpreted narrowly?

A15. H v LA says that so long as the type of injury suffered was reasonably foreseeable, it doesn't matter whether the manner in which it occurred was. To say that requires us to interpret WM1 in narrowly is just to say that it shows that WM1 says that there is no liability unless the plaintiff suffered a reasonably foreseeable injury.