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PRINCIPLE AND POLICY IN PRIVATE LAW REASONING

Published online by Cambridge University Press:  05 July 2016

James Plunkett
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Abstract

Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call “principle”. This article will examine both sides of the debate, initially exploring what is actually meant by “principle” and “policy”, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called “pluralist” approach, will be examined.

Keywords

principlepolicyprivate lawprivate law theoryprivate law reasoning
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Articles
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The Cambridge Law Journal , Volume 75 , Issue 2 , July 2016 , pp. 366 - 397
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Copyright © Cambridge Law Journal and Contributors 2016 

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References

1 R. Dworkin, Taking Rights Seriously (London 1979), 82. Dworkin calls these “hard cases”.

2 Stapleton, J., “The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable” (2003) 24 Aust. Bar Rev. 135Google Scholar, at 138. See also J. Stapleton, “Duty of Care Factors: A Selection from the Judicial Menus” in P. Cane and J. Stapleton (eds.), The Law of Obligations: Essays in Celebration of John Fleming (Oxford 1998), 430.

3 See generally E. Weinrib, “The Disintegration of Duty” in M.S. Madden (ed.), Exploring Tort Law (Cambridge 2005); E. Weinrib, The Idea of Private Law, revised ed. (Oxford 2012); A. Beever, Rediscovering the Law of Negligence (Oxford 2007); and R. Stevens, Torts and Rights (Oxford 2007).

4 See e.g. the comments of Burrough J. in Richardson v Mellish [1824] 130 E.R. 294, 303; 2 Bing 229, 252: “I, for one, protest … against arguing too strongly upon public policy; – it is a very unruly horse, and once you get astride it you never know where it will carry you”; and the comments of Lord Mansfield in Holman v Johnson (1775) 98 E.R. 1120, 1121; 1 Cowp 341, 343: “The objection, that a contract is immoral or illegal … sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so”. See also the discussion in S. Waddams, Principle and Policy in Contract Law (Cambridge 2011), ch. 5.

5 E. Peel, Treitel: The Law of Contract, 14th ed. (London 2015), 11–001.

6 See generally ibid., at ch. 11.

7 Waddams, Principle and Policy, p. 148.

8 See e.g. Reynolds v Times Newspapers Ltd. [2001] 2 A.C. 127 (HL), 194, per Lord Nicholls.

9 Various Claimants v Catholic Child Welfare Society [2013] 2 A.C. 1 (UKSC), at [35], per Lord Phillips; Cox v Ministry of Justice [2016] UKSC 10, at [41], per Lord Reed.

10 See e.g. Fairchild v Glenhaven Funeral Services Ltd. [2003] 1 A.C. 32 (HL), 66–67, per Lord Hoffmann.

11 See e.g. Caparo Industries plc. v Dickman [1990] 2 A.C. 605 (HL), 617–18, per Lord Bridge, 633, per Lord Oliver; Witting, C., “Tort Law, Policy and the High Court of Australia” (2007) 31 M.U.L.R. 569Google Scholar, at 574; A. Mason, Policy Considerations” in A. Blackshield, M. Coper, and G. Williams (eds.), The Oxford Companion to the High Court of Australia (Melbourne, Oxford 2001), 536.

12 Morgan, J., “Policy Reasoning in Tort Law: The Courts, the Law Commission and the Critics” (2009) 125 L.Q.R. 215Google Scholar, at 215, emphasis in original.

13 N. MacCormick, Legal Reasoning and Legal Theory (Oxford 1978), 263.

14 S. Waddams, “Private Right and Public Interest” in M. Bryan (ed.), Private Law in Theory and Practice (London 2008), 7. See also Cane, P., “Another Failed Sterilisation” (2004) 120 L.Q.R 189Google Scholar, at 191; Waddams, Principle and Policy, p. xv.

15 Sullivan v Moody (2001) 207 C.L.R. 562 (“Sullivan”).

16 Sullivan, para. [49].

17 Ibid., at paras. [61]–[63].

18 The High Court was referring specifically to the comments of Lord Keith in Hill v Chief Constable of West Yorkshire [1989] A.C. 53 (HL), 63.

19 Macfarlane v Tayside Health Board [2000] 2 A.C. 59 (HL).

20 Ibid., at p. 83.

21 Beever, Rediscovering, p. 18.

22 As Waddams notes, “Principle, in relation to judicial decision making, has been, almost invariably, a term of approbation…”: Waddams, Principle and Policy, p. xv.

23 In Waters v Commissioner of Police of the Metropolis [2000] 1 W.L.R. 1607, for example, Lord Jauncey held that “In Hill v Chief Constable of West Yorkshire [1989] the House of Lords held that public policy precluded an action for damages in negligence against the police arising out of the manner in which they investigated crime, in that case the activities of a serial killer. I see no reason why this principle should not apply equally [here]”. Similarly, Lord Wright, writing extra-judicially about Egerton v Brownlow (1853) 4 H.L.C. 1, 151; 10 E.R. 359, 419, referred to “the principle of public policy” in R. Wright, Legal Essays and Addresses (Cambridge 1939), 81.

24 H. Hart, The Concept of Law, 3rd ed. (Oxford 2012), 260. Although Hart is contrasting “principles” to “rules” rather than “policy”, the definition is nevertheless suitable for our purposes.

25 Donoghue v Stevenson [1932] A.C. 562, 580.

26 See e.g. MacCormick, Legal Reasoning, pp. 260–61.

27 Beever, for example, limits principles to the “rules and doctrines of the law itself”: Beever, Rediscovering, p. 3. Similarly, Bell believes that “principles rationalise a number of legal prescriptions” (emphasis added): J. Bell, Policy Arguments in Judicial Decisions (Oxford 1983), 26.

28 Beever, Rediscovering, p. 3.

29 Bell, Policy Arguments, p. 23.

30 A. Robertson, “Constraints on Policy-Based Reasoning in Private Law” in A. Robertson and H. Tang (eds.), The Goals of Private Law (Oxford 2009), 263. This type of argument is often also called a “deontological”-type argument.

31 Dworkin, Taking Rights Seriously, p. 22.

32 Weinrib, “The Disintegration of Duty”, p. 177.

33 Robertson, “Constraints”, p. 263.

34 Cane, “Another Failed Sterilisation”, p. 192. See also O.W. Holmes, The Common Law (Boston 1881), 35: “… every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy.”

35 Cf. Weinrib, who famously stated that private law has no purpose at all other than to be private law: Weinrib, The Idea, p. 5. For criticism of this view, see Stevens, Torts and Rights, p. 325.

36 Waddams, “Private Right”, p. 7 (footnotes omitted).

37 For more on this inherent conflict in the definition of principle, see Waddams, Principle and Policy, p. 18.

38 Dworkin, Taking Rights Seriously, p. 23.

39 Ibid., at p. 22.

40 A. Robertson, “Policy and the Duty of Care”, SLS Conference, Cambridge, September 2011, 1. The meaning of “interpersonal justice” is discussed further below.

41 Dworkin, Taking Rights Seriously, p. 82, emphasis added, though Dworkin does not confine his definition to the private law context.

42 For examples of the use of this argument, see Collins v Blantern (1765) 2 Wils. K.B. 347, 350; 95 E.R. 850, 852, per Willmott C.J.; and Holman (1791) 1 Cowp 341, 350; 98 E.R. 1120, 1121, per Lord Mansfield.

43 Indeed, Mason seems to equate “policy” with “public policy” and uses the terms almost interchangeably in Mason, “Policy Considerations”, p. 536.

44 Waddams, “Private Right”, p. 7.

45 Weinrib, “The Disintegration of Duty”, p. 157.

46 As discussed above, restraint of trade clauses and absolute and qualified privilege give rise to similar tensions. For discussion of these, and more, examples, see Robertson, A., “On the Function of the Law of Negligence” (2012) 33 O.J.L.S. 31Google Scholar, at 44–46.

47 Robertson, for example, uses this term to capture the various approaches: A. Robertson, “Rights, Pluralism and the Duty of Care” in D. Nolan and A. Robertson (eds.), Rights and Private Law (Oxford 2012), 437; Robertson, A., “Justice, Community Welfare and the Duty of Care” (2011) 127 L.Q.R. 370Google Scholar, at 373; Robertson, A., “Policy-Based Reasoning in Duty of Care Cases” (2012) 33 L.S. 119Google Scholar, at 119.

48 Dworkin, Taking Rights Seriously, p. 90.

49 For more on the relationship between interpersonal justice and rights-based approaches to private law, see D. Nolan and A. Robertson, “Rights and Private Law” in Nolan and Robertson (eds.), Rights and Private Law, pp. 23–25.

50 Robertson, “Policy and the Duty of Care”, p. 4.

51 Though note Robertson, “Constraints”, discussed further below.

52 Stapleton, “Duty of Care Factors”, passim.

53 Stapleton, “The Golden Thread”, p. 137.

54 Ibid., at p. 136. J. Fleming, The Law of Torts, 9th ed. (Sydney 1998), 153. See also Lord Denning in Dutton v Bognor Regis Urban DC [1972] 1 Q.B. 373, 397; Lord Steyn in Macfarlane [2000] 2 A.C. 59, 82; and Fleming, J., “Remoteness and Duty: The Control Devices in Liability for Negligence” (1953) 31 Can. Bar Rev. 471Google Scholar, 487. Cf. Beever, Rediscovering, pp. 153–54.

55 See e.g. ibid., at p. 120; Robertson, “On the Function”, p. 33; Robertson, “Policy-Based Reasoning”, p. 122; Robertson, “Justice, Community Welfare”, p. 371.

56 Bourhill v Young [1943] A.C. 92.

57 Ibid., at p. 102.

58 M. Lunney and K. Oliphant, Tort Law: Text and Materials, 5th ed. (Oxford 2013), 134. See also Kidner, R., “Resiling From the Anns Principle: The Variable Nature of Proximity in Negligence” (1987) 7 L.S. 319Google Scholar, at 325, and Fleming's criticism of the Australian case Chester v Waverly Corporation (1939) 62 C.L.R. 1 in Fleming, “Remoteness and Duty”, pp. 489–90.

59 Williams, G., “The Risk Principle” (1961) 77 L.Q.R. 179Google Scholar, at 192–93. For further criticism of foreseeability on the grounds that it acts as a mask for policy-based reasoning, see Dias, R., “Remoteness of Liability and Legal Policy” (1962) 20 C.L.J. 178CrossRefGoogle Scholar, at 189–90, 197; and Dias, R., “Trouble on Oiled Waters: Problems of The Wagon Mound (No 2)” (1967) 25 C.L.J. 62CrossRefGoogle Scholar, at 75.

60 See e.g. Robertson, “On the Function”, p. 33; Robertson, “Policy-Based Reasoning”, p. 122; Robertson, “Justice, Community Welfare”, p. 371; Witting, C., “Duty of Care: An Analytical Approach” (2005) 25 O.J.L.S. 33Google Scholar; Kramer, A., “Proximity as Principles: Directness, Community Norms and the Tort of Negligence” (2003) 11 Tort L.Rev. 70Google Scholar.

61 Smillie, J., “The Foundation of the Duty of Care in Negligence” (1989) 15 Mon.L.R. 302Google Scholar, at 315. For further alleged examples of principles masking policy-based reasoning, see H. Luntz, “The Use of Policy in Negligence Cases in the High Court of Australia” in Bryan (ed.), Private Law, passim; Howarth, D., “Public Authority Non-Liability: Spinning Out of Countrol?” (2004) 63 C.L.J. 546CrossRefGoogle Scholar, at 548; Howarth, D., “Poisoned Wells: ‘Proximity’ and ‘Assumption of Responsibility’ in Negligence” (2005) 64 C.L.J. 2CrossRefGoogle Scholar, at 25.

62 Stapleton, “The Golden Thread”, p. 135. See also Stapleton, “Duty of Care Factors”, p. 90, fn. 116.

63 Recall, for example, the wide definitions of Bell and MacCormick at notes 27 and 13 above.

64 Ibid., at p. 3.

65 Cane, “Another Failed Sterilisation”, p. 192.

66 Witting, C., “The House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence” (2008) 71 M.L.R. 621CrossRefGoogle Scholar, at 625, emphasis in original.

67 Robertson, “On the Function”, p. 37.

68 Waddams, Principle and Policy, p. 170.

69 Cf. Stevens, Torts and Rights, p. 333.

70 Robertson, “Policy-Based Reasoning”, p. 122.

71 Ibid., at pp. 124–26.

72 Stapleton, “The Golden Thread”, p. 135.

73 Cane, P., “Torts and Rights by Robert Stevens” (2008) 71 M.L.R. 641CrossRefGoogle Scholar, at 645, citing Stevens, Torts and Rights, p. 312.

74 Luntz, “The Use of Policy”, pp. 55–56.

75 Ibid., at p. 83.

76 Ibid., at p. 55, emphasis added. Luntz makes a similar claim in his textbook: H. Luntz, D. Hambly, K. Burns, J. Dietrich, and N. Foster, Torts: Cases and Commentary, 6th ed. (Chatswood, NSW 2009), 153.

77 Stapleton, “Duty of Care Factors”, p. 59.

78 Despite, as we have seen, not adopting the terms “principle” and “policy”, Stapleton identifies 50 “factors” (29 “convincing” and 21 “unconvincing”) that courts have used in denying or imposing a duty of care, many of which are unequivocally concerned with what advocates of the distinction would describe as policy, such as the “socio-economic impact” that the recognition of a duty would have on the “budgets and/or activities of public bodies to the detriment of a specified public interest”: ibid., at p. 93. Importantly, Stapleton makes explicit that her task is descriptive and not normative: ibid., at p. 89.

79 Witting, “The House”, p. 634.

80 See e.g. the discussion in Weinrib, The Idea, p. 48.

81 See generally R. Posner, The Economics of Justice (Cambridge, MA 1981). The school of law and economics also makes the positive claim that “the common law is best explained as if the judges were trying to maximise economic welfare”; ibid., at p. 4. In relation to the law of negligence in particular, see e.g. Posner, R., “A Theory of Negligence” (1972) 1 J.L.S. 29CrossRefGoogle Scholar.

82 Robertson, “Constraints”, p. 261.

83 A. Robertson, “Introduction: Goals, Rights and Obligations” in Robertson and Tang (eds.), The Goals, pp. 5–6.

84 Beever, Rediscovering, p. 29.

85 Stevens, Torts and Rights, p. 307.

86 Though there is some disagreement among advocates of the principle-based approach about whether this objection extends to the legislature also. Stevens, for example, sees nothing wrong with the legislature creating any legal right for any reason it chooses (ibid., at p. 331), whilst Weinrib appears to suggest that policy plays no role in private law at all, whether that law is made by judges or the legislature (see generally Weinrib, The Idea). For a more detailed discussion of the interaction between statutes and rights and corrective justice-based theories of tort law, see Goudkamp, J. and Murphy, J., “Tort Statutes and Tort Theories” (2015) 131 L.Q.R. 133Google Scholar.

87 Beever, Rediscovering, p. 54; Stevens, Torts and Rights, p. 308; Heydon, D., “Judicial Activism and the Death of the Rule of Law” (2003) 23 A.B.R. 110Google Scholar; Weinrib, The Idea, pp. 208–09; Smillie, J., “Who Wants Juristocracy?” (2005–2008) 11 Otago L.Rev. 183Google Scholar. See also the discussion in Bell, Policy Arguments, p. 9.

88 Beever, Rediscovering, p. 54.

89 Ibid., at p. 54.

90 Stevens, Torts and Rights, p. 309; Weinrib, “The Disintegration of Duty”, p. 167; Weinrib, The Idea, pp. 208–09; Witting, “Tort Law”, p. 580.

91 Beever, Rediscovering, p. 173.

92 Witting, “Tort Law”, p. 580.

93 N. McBride and R. Bagshaw, Tort Law, 3rd ed. (Harlow 2008), 202. See also P. Cane, “Consequences in Judicial Reasoning” in J. Horder (ed.), Oxford Essays in Jurisprudence (Oxford 2000).

94 Witting, “The House”, p. 633. See also K. Burns, “The Way the World Is: Social Facts in High Court Negligence Cases” 12 T.L.J. 215, at 232.

95 Hill [1989] A.C. 53 (HL).

96 Ibid., at p. 63, per Lord Keith. Similar concerns were expressed by Lords Carswell, Hope, and Brown in Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2009] 1 A.C. 225 (HL), at [108], [76], [132]. Compare the views of McLachlan C.J. in Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129, at [57]–[58]. See also Stevens, Torts and Rights, pp. 309–10; Robertson, “Rights, Pluralism and the Duty of Care”, pp. 454–55; Morgan, “Policy Reasoning”, p. 215.

97 Macfarlane [2000] 2 A.C. 59 (HL).

98 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 A.C. 309 (HL), 316, per Lord Bingham.

99 Stevens, Torts and Rights, p. 311.

100 P. Cane, “Rights in Private Law” in Nolan and Robertson (eds.), Rights and Private Law, p. 55.

101 R. Dworkin, A Matter of Principle (London 1985), 23–28.

102 See e.g. A. Beever, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (Oxford 2013), 306; Birks, P., “Equity in Modern Law: An Exercise in Taxonomy” (1996) 26 W.A.L.R. 3Google Scholar, at 97.

103 Priel, D., “Private Law: Commutative or Distributive?” (2014) 77 M.L.R. 308CrossRefGoogle Scholar, at 323–24.

104 Robertson, “Rights, Pluralism and the Duty of Care”, pp. 455–56.

105 Ibid., at p. 454.

106 Morgan, “Policy Reasoning”, p. 218.

107 Though see note 87 above.

108 E.g. the “Right to respect for private and family life”, recognised in Article 8.1 of Sch. 1 may, by virtue of Article 8.2, be “interfered with” where it is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”; such considerations are clearly considerations of policy. The rights protected by Articles 9–11 of Sch. 1 are similarly limited (though the exact wording of the grounds for limiting the rights varies).

109 Morgan, “Policy Reasoning”, p. 221.

110 Waddams, “Private Right”, p. 19; Cane, P., “Taking Disagreement Seriously: Courts, Legislatures and the Reforms of Tort Law” (2005) 25 O.J.L.S. 393Google Scholar, at 411.

111 Luntz, Hambly, Burns, Dietrich, and Foster, Torts, p. 148. Cf. Dworkin, A Matter of Principle, p. 18.

112 Morgan, “Policy Reasoning”, p. 221; Robertson, “Rights, Pluralism and the Duty of Care”, p. 456.

113 Egerton (1853) 4 H.L.C. 1, 151; 10 E.R. 359, 419.

114 Weinrib, E., “Does Tort Law Have a Future?” (2005) 34 Val.U.L.Rev. 561Google Scholar, at 567.

115 Stevens, Torts and Rights, p. 310.

116 The right to a fair trial, for example, is balanced against the public cost of providing such trials (in, say, increased expenditure on legal aid, funding for expert evidence, etc.): Dworkin, A Matter of Principle, pp. 72–73.

117 Urbina, F.J., “Incommensurability and Balancing” (2015) 35 O.J.L.S. 575Google Scholar, at 581.

118 “Clarity of laws” is one of Fuller's eight requirements for a legal system: L. Fuller, The Morality of Law (London 1964), 63.

119 S. Todd, “Negligence: Breach of Duty” in S. Todd (ed.), The Law of Torts in New Zealand, 3rd ed. (Wellington 2005), 151. See also Beever, Rediscovering, p. 28.

120 Caparo Industries plc. [1990] 2 A.C. 605, 617–18, per Lord Bridge.

121 Compare the position in the US: Stevens, Torts and Rights, pp. 312–13.

122 McBride and Bagshaw, Tort Law, p. 191.

123 R. Bagshaw, “Tort Law, Concepts and What Really Matters” in Robertson and Tang (eds.), The Goals, p. 258.

124 Beever, Rediscovering, p. 7.

125 Robertson, “Constraints”, p. 268.

126 Ibid., at p. 269.

127 Ibid., at p. 271.

128 Ibid., at p. 272.

129 Hart, H., “Discretion” (2013) 127 Harv.L.Rev. 652Google Scholar, at 657.

130 See e.g. Page v Smith [1996] 1 A.C. 155 (HL).

131 Cane, “Rights in Private Law”, p. 49.

132 R. Stevens, “The Conflict of Rights” in Robertson and Tang (eds.), The Goals, p. 142.

133 Stevens, Torts and Rights, p. 337. See also Stevens, “The Conflict”, p. 141.

134 See e.g. Stevens, “The Conflict”, p. 141; Beever, A. and Rickett, C., “Interpretive Legal Theory and the Academic Lawyer” (2005) 68 M.L.R. 320CrossRefGoogle Scholar, at 332; and Beever, Rediscovering, pp. 48–49.

135 Prosser, for example, once described the foreseeability requirement as “a rope of sand” that offers “neither certainty nor convenience”: Prosser, W., “Palsgraf Revisited” (1953) 52 Mich.L.Rev. 1CrossRefGoogle Scholar, at 18. See also J. Gardner, “Some Rule-of-Law Anxieties about Strict Liability in Private Law” in L. Austin and D. Klimchuk (eds.), Private Law and the Rule of Law (Oxford 2014), 113–14, in relation to the abstractness of other popular principle-based concepts such as “morality”.

136 Bagshaw, “Tort Law”, p. 257, emphasis in original.

137 Neyers, J., “The Economic Torts as Corrective Justice” (2009) 17 T.L.J. 162Google Scholar, at 167. See also Cane, “Rights in Private Law”, p. 38; Weinrib, The Idea, p. 12.

138 Stapleton, “Duty of Care Factors”, “Convincing factor” “countervailing to the recognition of a duty” number (11). See e.g. Morgan Crucible Co. v Hill v Samuel & Co. [1991] Ch. 295, 303; Esanda Finance Corporation Ltd. v Peat Marwick Hungerfords (Reg) (1997) 188 C.L.R. 241, 283–90, per McHugh J.

139 Ibid., “Convincing factor” “countervailing to the recognition of a duty” number (4). See e.g. Hill [1989] A.C. 53 (HL); Van Colle 1 A.C. 225 (HL).

140 This is, of course, not to say that irreconcilable cases do not exist with almost identical fact scenarios.

141 S. Smith, Contract Theory (Oxford 2004), 11. Although Smith is using “coherence” as a criterion by which to evaluate an “interpretive legal theory”, as this is ultimately judged by reference to the body of law the theory would produce, his definitions of coherence are therefore equally appropriate to evaluate the body of law produced by prescriptive theories. The descriptor “weak” is actually Beever's, Smith merely refers to a “less-demanding” and “more-demanding” version: Beever, Rediscovering, pp. 21–22.

142 Beever, Rediscovering, p. 24.

143 Smith, Contract Theory, p. 11. See also note 140 above.

144 Weinrib, “The Disintegration of Duty”, pp. 145–46.

145 Ibid., at p. 177 (footnotes omitted).

146 Beever, Rediscovering, p. 30, emphasis in original. See also Weinrib, “The Disintegration of Duty”, p. 7.

147 Smith, Contract Theory, p. 12, emphasis added. Cf. Beever, Rediscovering, p. 24.

148 Nolan and Robertson, “Rights and Private Law”, p. 7.

149 N. McBride, “Rights and the Basis of Tort Law” in Nolan and Robertson (eds.), Rights and Private Law, p. 340. See also Bagshaw, “Tort Law”, p. 249; S. Perry, “Duty of Care in a Rights-Based Theory of Negligence” in Robertson and Tang (eds.), The Goals, p. 91; Perry, S., “Professor Weinrib's Formalism: The Not-So-Empty Sepulchre” (1993) 16 Harv.J.L.& PubPol'y 597Google Scholar, at 618–19; McBride and Bagshaw, Tort Law, pp. xvii–xx.

150 Perry, “Professor Weinrib's Formalism”, pp. 618–19 (footnotes omitted). See also Perry, “Duty of Care”, p. 91 (fn. 42). Cf. Stevens, “The Conflict”, pp. 140–42.

151 Robertson, “Rights, Pluralism and the Duty of Care”, p. 436.

152 Ibid., at p. 437.

153 McBride and Bagshaw, Tort Law, p. xviii. See also Robertson, “Rights, Pluralism and the Duty of Care”, p. 444.

154 Robertson, “Rights, Pluralism and the Duty of Care”, p. 436.

155 Perry, “Duty of Care”, p. 91.

156 Anns v Merton LBC [1978] A.C. 728. See generally Robertson, “Justice, Community Welfare”; and Robertson, “Rights, Pluralism and the Duty of Care”. A similar two-stage approach to duty questions can be found in Smillie, “The Foundation”, pp. 322–34. It is also closely analogous to the current Canadian approach: see in particular the comments of McLachlin C.J.C. in Childs v Desormeaux (2006) 266 D.L.R. (4th) 257, 263, at [12].

157 Robertson, “Rights, Pluralism and the Duty of Care”, p. 444.

158 Stevens, for example, says that the pluralist approach is “polite”, “sexy”, and “avoids difficult choices”: Stevens, “The Conflict”, p. 140.

159 Robertson, “Rights, Pluralism and the Duty of Care”, p. 449.

160 See also Robertson's discussion of “trump factors”: Robertson, “Justice, Community Welfare”, p. 394.

161 Robertson, “Rights, Pluralism and the Duty of Care”, p. 447. See also Robertson, “Justice, Community Welfare”, p. 394.

162 B. Nicholas, An Introduction to Roman Law (Oxford 1962), 42.

163 As we saw above, even Beever and Robertson acknowledge this.

164 Though note Robertson, “On the Function”, where Robertson argues that primacy is given to considerations of principle only to the extent that the considerations of policy support it – an argument that was recently adopted by the Court of Appeal of Singapore in Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd. [2013] 3 SLR 284, at [87].