Manderson,+Proximity,+Torts+and+the+Sould+of+Law+(2006)+Chapter+5+Parts+II+and+III+-+Chris

//__Proximity and Policy__// -proximity and policy often get conflated, even though they have to do with very different relationships
 * //__Desmond Manderson, “Second excerpt from Proximity, Levinas, and the Soul of Law,” CB II 107__//**

-proximity limits relationships by reference to //you//

-policy limits relationships by reference to //us//, as a society

-but some judges (see example in text) have presented proximity //as// policy, as a limitation on a naturalized class of ‘reasonably foreseeable’ injuries. The High Court of Australia was so convinced that proximity was the touchstone for determining the existence and content of a duty of care that it subsumed policy within proximity

-it’s not appropriate to describe proximity as ‘including policy considerations.’ Proximity used in this way leaves courts and citizens without a guide of conduct. The world becomes simply the description attached to the outcome of the court’s deliberations.

-it is better to identify the consideration which negates the duty of care than to simply say there is no proximity (because of policy reasons). Policy considerations involve extra-legal values and as such must be explained and justified rather than concealed under general conclusions

-proximity should not be seen as a limit on a relationship that otherwise exists; it should be seen as the very element that creates the relationship in the first place

-because of the fundamental constitutive role of proximity, responsibility ought not to be overridden by policy considerations too hastily

-why? Because responsibility is not the limit case of solidarity, but the condition for all solidarity; we cannot have solidarity without it

-//Giannarelli v. Wraith//: ruled that lawyers could not be sued in negligence because of policy considerations. Fundamental departure from concept of professional duty. To get to this decision, the court decided that the trusting relationship expected in social life does not always extend to the justice system. In this conclusion, they fail to take the philosophy of the neighbour seriously enough as fundamental to the quest for justice

//__Proximity and Foreseeability__//

-really, responsibility is not at all about what I can foresee. It is about breach of standard of care, or culpability – not about duty

-for Levinas (and Manderson) responsibility is determined by a relational contiguity, and not our perception of it

-responsibility finds me. I do not foresee it. It calls to me; happens on me unexpectedly

-for breach, consideration of things like the choices I make and the judgment I show makes sense. But for the existence of duty it does not – choice and judgment are simply not yet in issue

-in //D+S//, the second half of Atkin’s answer to himself (“The answer seems to be…”) is a consequential and not a limiting clause – he is anticipating breach here – he is not further defining the criteria of duty

-we’ve seen how the neighbour principle is circular. So is his definition of proximity: proximity extends to such relations that are suitably direct

-the foreseeability test, because it involves reasonableness, contains the same subjective element that proximity does – the same inescapable moment of indeterminacy. So it is just as troublesome as the other criteria: how can we determine abstractly to whom we are responsible?

-we should look at the relationship between the parties and the power and passivity of the dynamic, instead of asking: about knowledge that one party “ought to” have about another

-//Palsgraf// – Cardozo concludes that there is no duty because the DFs could not have expected to cause P harm. Everything depended on how wide the ‘class of persons’ to whom duty was owed was – and whether P fell into that class

-here is the inescapable moment of judgment and discretion. Surely it was foreseeable that the guards could harm one passenger by pushing another – so Cardozo must describe P as ‘standing really far away.’ This characterization does not reflect reasonable foreseeability at all. Instead it reflects Cardozo’s prior judgment that there should be no liability because of an insufficiently close relationship

-proximity of the parties and remoteness of damage got conflated into the supposed unforeseeability of Mrs. P

-besides, to ask what a reasonable person would have foreseen as the class of persons affected when they push someone rushing onto a train is disingenuous nonsense

-the point is not that Manderson’s analysis solves the problems of what is close or direct enough in negligence – rather, his conception more accurately captures the experience of responsibility that negligence addresses

-//Chester v. Waverley//: when looking at foreseeability, courts tend to privilege the perspective of the defendant. But when we change perspectives, we realize that foreseeability depends entirely on perspective (Manderson says the Evatt dissent is the correct approach because the council should have imagined things from the point of view of the plaintiff)