The History of Foreseeability

Speaker

Professor Helen Scott (Oxford)

About this lecture

The factual component of the duty of care inquiry—that injury to the claimant as a result of the defendant’s negligence was reasonably foreseeable by the defendant —has been entrenched in English law since Donoghue v Stevenson. Both indigenous and comparative evidence suggests that Lord Atkin’s formulation of the duty of care was informed by certain foundational texts contained in Title 9.2 of Justinian’s Digest, ‘On the lex Aquilia’. Interrogation of the foreseeability concept in this context shows, however, that its role there was a narrow one: it operated as a mere exclusionary rule – ‘not unforeseeable’ as opposed to ‘foreseeable’. As a principle which generates liability, reasonable foresight cannot bear the normative weight assigned to it. The history of foreseeability thus yields a powerful critique of the contemporary duty concept. This lecture will provide a further dimension to contemporary calls to abandon the factual component of the duty of care.

About the speaker

Helen Scott is a Tutorial Fellow in Law at Lady Margaret Hall and Professor of Private Law in the Oxford Law Faculty. Before taking up her current position she was a professor in the Department of Private Law at the University of Cape Town. Her research interests fall mainly within the law of obligations and civilian legal history (particularly Roman law). At Oxford she teaches courses on Roman law, tort, and the restitution of unjust enrichment.

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