The Mouse and the Snail: Reappraising the Significance of Donoghue v Stevenson Part IV - "Remoteness", not "Duty"

Abstract

Final article in a four-part series. Argues that notwithstanding the fact that the case of Donoghue v Stevenson 1932 SC (HL) 71 is celebrated in Scotland, the 'duty of care' concept which it cemented in Scots law is in fact nugatory. Contends that the principle of 'remoteness of damages' - still used in practice today, with the law pertaining to such clarified by Simmons v British Steel Plc 2004 SC (HL) 94 - in fact serves to properly limit the actionability of claims for wrongfully caused loss. Suggests that reference to both the 'duty of care' principle and 'remoteness' principle results in a confusing and unnecessary duplication of conceptual effort, even in those cases in which Professor Wilson suggested that the 'duty' idea might be fruitfully employed. Concludes by suggesting that the Scots law of delict - more or less directly as a result of the decision in Donoghue - is in danger of fragmenting into an unstructured mass of 'deliticles' a la the Common law system and that such would be a regrettable (and indeed ironic) development.