Andrew Robertson, ‘Proximity: Divergence and Unity’

ABSTRACT
This paper argues that proximity plays a central, unifying role in duty of care analysis. The paper begins by analyzing the nature and limits of proximity. It is argued that there is a basic flaw in the classical Donoghue v Stevenson formulation of proximity. The problem is that whether a person ought to take care to avoid harm to another in a given situation does not and cannot depend entirely on the closeness and directness of the effect of the first person’s conduct on the second. Rather, proximity is one of several factors that must be taken into account in determining whether a person in the defendant’s position ought, as a matter of interpersonal responsibility, to have had a person in the plaintiff’s position in contemplation. Proximity is, however, a centrally important factor which unifies duty of care analysis across a diverse range of fact categories, as the Australian experience has shown. Although the High Court of Australia purported to reject proximity as a duty criterion, proximity has continued to play a critically important role in decisions of that court in a wide range of cases involving bodily, psychiatric and economic harm, both public and private actors, and a variety of different kinds of relationships.

Robertson, Andrew, Proximity: Divergence and Unity (June 12, 2015). A Robertson and M Tilbury (eds), Divergences in Private Law, Oxford, Hart Publishing, 2016, 9–35.

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