Proximity

Insight | February 2017

Proximity
Image: ‘Two Houses’ by Beata Dagiel

When we discuss proximity in law, there is frequently divided opinion as to (i) just what is meant, and (ii) in what context such a term can be properly applied. By definition, tort cases almost always rely upon proximity when establishing the claimant-defendant relationship, the relative distance between the two parties, and finally any subsequent obligatory considerations shared. Though for the sake of clarity, let us begin first with the Oxford Dictionary definition of proximity:

Noun [mass noun] nearness in space, time or relationship

Origin: Late 15th century from the French ‘proximité and Latin proximatas, proximus (meaning nearest).

While this explanation appears relatively straightforward, the complexities of human interaction often magnify the context of its use, insomuch as subjective opinion will almost always complicate matters, and leave final judgments in degrees of contention. This is largely due to a collective inability to agree precisely where proximity fits, and how it connects with other strands of legal principle.

Early illustrative proof of the need for exactness would undoubtedly be the speech given by Lord Pearce in Hedley Byrne Co Ltd v Heller and Partners which reads:

“[P]roximity will not be established unless at least the following conditions are satisfied….the plaintiff must be (i) the person directly intended by the maker of the statement to act upon the statement (ii) in a specific transaction of which the maker knows and (iii) for the purpose for which the statement is made. Exceptionally conditions (i) and (iii) may be relaxed provided the plaintiff is a person of whose actual existence (if not name) the maker knows, to whom he knows the statement will be communicated, and who it is likely with a high degree of certainty will act upon the statement in a specific transaction of which the maker knows.”

Or the even earlier words of Lord Atkin’s ‘neighbour’ speech in Donoghue v Stevenson:

“[S]uch close and direct relations that that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

Or, an even simpler definition would be that:

“The claimant must be in an established relationship with the defendant and able to prove that any existing duty of care applied to them, whether through action, inaction or words”

Whichever phrase suits best, the typical contexts for proximity can range from customer and seller, through to diner and chef. In fact, the list of possible scenarios could quickly prove lengthy, yet despite changes in issue, the essence of proximity remains undiluted.

However, the general context of proximity deviated when through the course of accident and tragedy, the witnesses to those sudden and unforeseen events began to claim that the distress and trauma of such emotionally crippling scenes commanded financial assistance from the courts through damages. In those instances, the fluid definition of proximity was echoed  by Lord Wilberforce in McLoughlin v O’Brian, who said:

“Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.”

Taken further still, the emergence of ‘secondary’ nervous shock forced the principle of proximity into new territory, this time allowing those indirectly receiving terrible news to seek a claim for award under the umbrella of proximation, albeit subject to specific criteria, as defined by Lord  Oliver in Alcock v Chief Constable of South Yorkshire Police, who remarked:

“What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.”

Here, we see a variance in application of the principle of proximity, and one that demonstrated a generosity of scope over that regulated within everyday examples of arms-length dealings. Whether this broadening stemmed from the degree of harm, or was simply the choice of the courts to extend empathy toward genuine loss, is not easily traceable, but there are now notable differences.

Contrastingly, in the United States, the ‘dangerous proximity test’ is one used to determine criminal liability at federal and state levels. The two key principles being (i) that the defendant was dangerously close to completing the crime, or (ii) so close as to a result that the danger was great. The test itself, was first laid down in 1901, and later adopted by a Judge Learned Hand and read:

“(P)reparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to compete it renders the crime so probable that the act will be a misdemeanour, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”

While under the Turkish laws of contract, the ‘principle of proximity’ comes into effect where non-specification of parties applicable laws during cross-border transactions leaves the courts with the option to default to the nearest jurisdiction, with the effect of establishing implied and express contractual terms, as was explained by Dr. Gülin Güngor in 2008.

So again and as before, proximity is regularly used to help establish liability, reduce conflict and this time bring levity to matters that might otherwise become bogged down in their own rhetoric. With diverse applications of this flexible principle proving it an inarguable necessity, it concludes that the footnote of this article is really one that suggests proximity is far from a fair weather friend to law and jurisprudence; and that perhaps it deserves to play a greater role in resolving more disputes than is currently afforded access to?

Future Law

Insight | February 2017

Future Law
Image: ‘Into the Future’ by Trilby Cole

The world is in an increasing state of flux, and we are all racing to keep up. While there are countless casualties of the speed at which this is happening, the emerging impact upon law, and how it is both written and applied, is in need of collective address. We cannot reasonably hope to continue existing as island communities, instead there is a genuine need to share a goal of jurisdictional interdependence; a process that is already in delicate motion, despite entrenched political and religious divergence, or the increased polarity of wealth.

How these legal adjustments will materialise is still hard to quantify with precision, but there is evidently a number of academic and professional opinions echoing a similar message, and it is perhaps time that the global community started to at least consider the plausibility a uniform rule of law, instead of assuming that the status quo can continue to remain effective.

Regular contributor to domestic industry news is The Law Society, whose recent article ‘The Future of Legal Services‘ touches upon a number of nationally indicative trends that convey a similar pattern to those held here; and key elements such as the growth of national and international economies, along with the quantum progression of technology, are instrumental in shaping emerging legal practices and the prevalence of market-adjusted pricing. However, it is just as important to note that the converging of political manifestos will ultimately produce a narrowing of access to justice, through global regulation and a fierce preservation of economic interests.

In fact, one of the many questions asked of law graduates seeking training contracts, is how they feel the merging of investment and banking sectors will influence the overall operation of multi-national law firms, as a growing number seek consolidation to navigate the undercurrent of change. While it is a reasonable question in itself, it demonstrates a lack of cognisant awareness to the effects of destabilisation, despite history showing that the only real constant is change.

In contrast, we need only look at driverless cars to appreciate the impact automation of transport will have upon civil litigation and road traffic accident claims, as after all who becomes liable when injury does occur? There are also suggestions that mechanised judges could prove the way forward when trying to manage the algorithms of robot-created journalism, and how best to decipher the rights from the wrongs, as was discussed in a recent paper in the European Journal of Law and Technology; an article that ponders not only possible extinction of the human prose, but the relevance of solicitors when complex cases require meticulous attention to detail, and a diverse range of case material to help develop laws.

Similarly, when an internationally administrative view is expressed, the cautionary sentiments remain just as poignant when considering that the reluctance to welcome organic growth leaves a lot to be desired. This concern was remarked by Angel Gurria OECD Secretary-General back in 2015, when she spoke at the UK Global Law Summit and warned:

“The classic model for the development of international law is not always adapted or even adequate to this rapidly changing environment. In contrast, the negotiation of major international conventions or agreements is often slow and painful. In some cases  it has come to a complete standstill.”

So when we contemplate the hybrid mechanisation of justice and legal discourse, we also embrace a fear that risks crippling those students seeking to secure their place in all areas of practice. Although there is no doubt that an empathic and world-experienced lawyer can undoubtedly help lead the charge into this new era of dispute resolution. However, such an endorsement is shallow by design if the industry does nothing to exploit attributive software in lieu of effective human centred mediation, as was pointed out by Adam Nguyen of Law Technology Today, who writes:

“Although technology is taking over many aspects of lawyer’s jobs, automated tools are adept at rescuing lawyers from low-level and repetitive tasks, such as document management, contract review, filing, docketing, billing and accounting which bear little connection to law practice but increasingly consume much of lawyers’ time.”

Whichever way we choose to look at it, the increasingly immediate need to synergise with autonomous (and ultimately supportive) forms of non-human legal administration (and even algorithmic case determination) is inching closer, and while it may send shivers up some spines, it would be unwise to overlook the total number of fail cases falling victim to poor preparation, and the unimaginative cross-referencing of legal resources; all of which dilutes down to shedding the fear in the face of this unavoidable truth, in order to nurture better lawyers, lawmakers and judges, regardless of geography and jurisdiction.

 

Donoghue v Stevenson (1932)

English Tort Law

Donoghue v Stevenson
‘Ginger Ale’ by Robert Langford

In this case, the principle of negligence beyond the strictness of contractual duty becomes pivotal to a claim for damages, when a consumer becomes victim to sickness through the consumption of a contaminated beverage.

In 1928, two friends entered a café in central Scotland and proceeded to order some ice-cream and ginger beer. Unknown to the appellant, one of the bottles provided contained the decomposed remains of a snail, which when poured onto the ice-cream, left the appellant in a state of shock, and later subjected to gastro-enteritis, having partially drunk the ginger beer beforehand.

This resulted in litigation on grounds concerning (i) the manufacturer’s inability to safely store the bottles prior to their filling, (ii) a lack of care when considering the potential for those drinks to be consumed by unwitting customers, (iii) failure to implement a suitable quality control/inspection system prior to distribution, and (iv) failure to use clear, as opposed to dark opaque bottles, to avoid such events.

Although the common law position was comparable between English and Scottish law, the claim was unique in that it circumvented the contractual obligations often found in negligence claims. The court in the first instance had allowed the claim, while the Second Divisional court dismissed it by a majority, before the appellant sought relief in the House of Lords.

Here, a number of recent cases were explored, so as to ascertain the extent of liability in matters where there are no contractual obligations. Erring on the side of restraint as to how far a claim such as this might extend, comments mades by Parke B in Longmeid v Holliday suggested that:

“It would be going much too far to say, that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous, . . . . but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it.”

However in George v Skivington, the sale of harmful shampoo, which had been used not by the purchaser but a third party, had allowed claim for negligence caused upon a duty of care by the manufacturer when mixing the ingredients; while in Francis v Cockerell, a racecourse spectator injured through the collapse of a viewing stand, was able to recover not from the builder himself, but the agent of the venue.

On this occasion, the appellant relied upon the words of Lord Brett MR in Heaven v Pender, who clarified that:

“[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger…”

Therefore it was argued that regardless of contractual elements, there was, by virtue of reasonableness and decency, an inherent encumbrance upon the respondent manufacturer to both evaluate and consider the position of the consumer when preparing and sealing his drinks, and that anything less than that consideration was tantamount to fundamental neglect and tortious liability.

Contrastingly, in Pender Esher LJ had also argued that:

“The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.”

While in Bates v Batey & Co Ltd, the manufacturers of ginger beer were not deemed liable for an injury caused to an unsuspecting consumer from a defect unknown, and yet discoverable through reasonable investigation.

Having evaluated the reluctance of the courts to extend in some instances, while offering generous judgment in others, it was, albeit by a narrow margin, decided that despite no contractual duties to envisage the effects of a contaminated product upon an innocent purchaser, there was an almost ethical prerequisite to remain diligent in the preparation and storage of such substances. And so despite the abject refusal by the Second Division of the Court of Session in Scotland to acknowledge the appellant’s rights, the House reversed the finding and restored the order of the first judge.