Policy-based reasoning in duty of care cases

Abstract

This paper seeks to develop a deeper understanding of the role of policy-based reasoning in the determination of duty of care questions. In order to do this, the first part explores the distinction between considerations of interpersonal justice and considerations of community welfare in the determination of duty questions. While imperfect, the distinction illuminates the nature of the factors taken into account by courts in determining duty of care questions and has practical as well as theoretical implications. The second part of the paper analyses the respective roles of interpersonal justice considerations and community welfare considerations in a sample of first instance and intermediate appellate cases from England and Canada. That study suggests that community welfare considerations play a far less significant role in determining duty cases at the first instance and intermediate appellate level than at the ultimate appellate level. Analysis of the cases also reveals significant differences between the English and Canadian courts in their approaches to the interpersonal justice and community welfare aspects of duty of care questions.

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