Special Duty Problems: Particular Parties

Abstract

Special duty problems arise not only out of the nature of the loss and the way it was caused but also out of the identity of the parties. We deal here first with two classes of plaintiff that call for special consideration: rescuers, whose cases raise questions of foreseeability, of the fairness justice and reasonableness of recognising a duty, and of defences; and unborn children, in respect of whom it was unclear for some time whether any duty was owed at all. Then we turn to look at certain classes of defendant who for reasons of public policy are granted a degree of immunity from negligence liability, namely public bodies, the police and the legal profession. This is not a complete list of those with immunities from suit: others have been, or may yet be, added to the list. It has been decided, for instance, that it would not be fair, just and reasonable to expose members of the armed forces to the threat of liability towards colleagues injured in ‘friendly fire’ incidents (Mulcahy v. Ministry of Defence [1996] 2 All ER 758) and, as the authors are relieved to note, that the examiners of the University of London LLB owe no duty of care to candidates who allege that their examination scripts are marked without due care and attention (Thorne v. University of London [1966] 2 QB 237). Nevertheless the special types of defendant considered here are the most significant in both practice and principle.