The element of duty of care is covered in three sections. Section 11.1 covers the role and nature of duty – what it is there for and what it covers. Section 11.2 deals with the law on the established categories of negligence (duties and immunities). Section 11.3 discusses the methodology of negligence in cases involving novel fact scenarios, where a duty is not pre-established and needs to be developed from scratch.

Because of the complexity of this area of the law, this chapter introduces a new ‘Summary points’ feature at the ends of sections 11.1 and 11.3. It summarises the matters you should take into account when approaching a problem question and asks you to engage in an active reading exercise, linking each point with a case in that section.

Moving beyond the structural antagonism of criminal law, this chapter explores the subject positions of actors in scenarios of sexual harm. If the sex offender emerges as a felon bearing the head of a wolf, the victimized white child emerges as the exemplary figure of vulnerability. While tropes of vulnerability are mobilized to justify paternalistic state coercion, they are also a powerful reminder of humans’ interdependence and mutuality. Thinking with vulnerability as an analytical category focuses attention on the lingering traumatic effects of sexual assault, as well as the severe punitiveness toward sex offenders. Addressing sexual violence does not require draconian penalties; conversely, addressing carceral expansion does not necessitate minimizing sexual violence. Centering vulnerability may allow us to rethink the foundations of our social contract in ways that acknowledge both our precariousness and the sovereign violence that holds us in its thrall.

While it has been argued that relational egalitarianism can capture the vulnerability to inequalities of people’s self-respect, the relationship between vulnerability and relational equality remains largely underexplored. In this chapter, I embark on this project, with a particular focus on risk. I argue that both risk and vulnerability capture situations in which there is a possibility of harm, but harm has not yet materialised and I claim that a number of situations in which one’s interests are at risk of harm matter for relational egalitarians. Sometimes risks and vulnerabilities amount to relationships of domination, in other cases exposure to risk, especially when unequal, signals a failure of the state to treat citizens as equals. Bringing together the literature on vulnerability and risk, which are rarely put in dialogue, is key in reflecting on the terms on which people are able to relate to each other as equals: this ex-ante outlook brings to the forefront the different ways in which risk and vulnerability not only can amount to objectionable forms of inequality but can also endanger equality. This, I argue, should lead relational egalitarians to regard the commitment to the robust protection of people’s equal status as central to their theory.

If society should treat its members as equals, how can they be unequal in the possession of some valuable goods? In this chapter, I develop a novel relational egalitarian answer to this question. I argue that relational egalitarians must hold that, whatever else distributive justice requires, it requires ensuring that persons have a sufficient, not equal, capability to function as equals in society. This is because directly pursuing equality of capabilities above the sufficiency threshold has the paradoxical effect of rendering individuals vulnerable to being singled out as ‘less competent’ agents, thereby creating a ‘pathogenic vulnerability’ to social disrespect. This, however, is inconsistent with the expressive demands of equal respect for persons. Therefore, at least a certain degree of distributive inequality is not only compatible with but also required by a commitment to the ideal of relational equality.

This chapter explores two kinds of vulnerability which appear to cause a problem for neo-republicanism as a form of relational egalitarianism: the vulnerabilities involved in intimate and caring relationships, and those generated by complex economic and social processes like the global financial system. I argue that the standard neo-republican strategy of constraining arbitrary power can successfully account for the former; the value of the vulnerabilities involved in intimate relations depends on the presence of constraints which prevent power being exercised in ways which do not track relevant interests. But this approach is less successful in dealing with the latter kind of vulnerability, which generates cases in which agents can be subject to domination without suffering the loss of status, and accompanying inequality, usually characteristic of domination. I argue that while these cases count as exceptions to the standard relationship between non-domination and egalitarianism, neo-republicanism remains a form of relational egalitarianism.

Relational equality theorists have drawn attention to the expressive dimensions of social and institutional hierarchies, highlighting the ways that expressive disrespect, for example by state institutions and officials can entrench social inequalities. Meanwhile, theorists of trust have drawn attention to the ways that agents who are disadvantaged or marginalised are often treated with presumptive distrust by social institutions and excluded from the trust economy. This paper draws on these insights, on empirical findings from the literature in social psychology on procedural justice, and on conceptions of vulnerability, to argue that expressive disrespect and presumptive distrust by state institutions is a form of injustice that can entrench vulnerability. The theoretical argument is supported and extended by discussion of a notorious example from the recent Australian context, Robodebt, a government scheme that was found to be illegal, which used automated decision-making technology to identify and claw back alleged overpayments to social welfare recipients.

Although Thomas Hobbes is often portrayed as an egoistic and atomistic thinker, his political philosophy has a great deal to say about vulnerability and relational equality. This chapter draws out four insights from his political philosophy to apply to contemporary political philosophy. First, he outlines a compelling psychological theory that connects our ontological and social vulnerability. Second, he argues the best strategy for minimising our ontological and social vulnerability is to establish a society of equals, thus asserting a vital connection between vulnerability and relational equality. Third, he identifies some key powers that states must possess to establish and maintain equal relations among people and assuage our vulnerabilities. Fourth, he offers a unique justification for relational equality arguing that it is valuable not so much because it represents an authentic expression of our basic human equality as because it is instrumentally necessary to tamp down our anxieties and promote peace.

Paternalistic interference in an older person’s choices or actions appears to relegate the needs, values, and interests of that person as less valuable than the judgement of others about what is in the older person’s interests. For relational egalitarians, concerned to promote a society in which people stand in democratic relations of equality, paternalism prima facie undermines relational equality. This chapter draws on exploration of the sources of older people’s vulnerability and dependence on others for care, to better understand when and why paternalistic interference is objectionable. Objectionable paternalistic interference, on my view, occurs where it is either an effect of social relations of domination and oppression that prevent people from having their needs met without autonomy-undermining interference or it creates the conditions under which domination, exploitation, and oppression flourish, generating pathogenic vulnerabilities, including the risk of the person being denied the services they require to meet their needs.

This chapter explores the phenomenon of tipping points in both historical and contemporary societal change. It opens with compelling examples—from the abolition of slavery and Chinese foot binding to the collapse of the Pueblo civilizations—to illustrate how longstanding social norms and systems can abruptly vanish. The central idea is that these shifts often follow a gradual loss of resilience, making systems increasingly vulnerable to small disturbances. Once a critical threshold is crossed, change becomes self-reinforcing, propelling rapid transformations. This behavior, captured in mathematical terms as critical transitions, applies to diverse domains: climate systems, financial markets, individual mental health, and societies. The author introduces the concept of early-warning signals such as increased variability and slower recovery rates—known as critical slowing down—which precede tipping points. These insights are supported by archaeological evidence from the Pueblo people, whose repeated societal collapses were foreshadowed by such indicators.

This chapter presents a neo-Aristotelian account of stakeholder deliberation, arguing that a range of virtues is needed to ensure that consensus among stakeholders with large power imbalances is based on trust and authentic deliberation rather than zero-sum competitive interactions. We identify three stylized phases of stakeholder deliberation that highlight how the need to cope with vulnerability drives interactions with other stakeholders that, in turn, foster the development of a range of deliberative virtues. In the first phase, involving the acknowledgment of dependence and vulnerability, the virtues of justice, mercy, and benevolence help mitigate stakeholder myopia by enabling weaker voices to be heard. In the second phase, involving the establishment of common ground, the virtue of benevolence plays a crucial role in overcoming differences in modes of discourse by creating trust and goodwill between stakeholders and preventing deliberative processes from devolving into merely self-interested posturing and negotiation. In the third phase, the virtues of justice, courage, honesty, and practical wisdom reduce the risk of decoupling, ensuring that deliberative processes promote the flourishing of diverse market actors.

On a standard approach, love’s proper object is construed in terms of personhood or rational agency. Some philosophers in this broadly Kantian tradition deny that love has a proper aim: specifically, they reject the idea that love properly aims at the good of the beloved. They worry about paternalism and encroachment. In this chapter, we show how Kierkegaard’s Works of Love advances a rival approach: one which provides an account of how love can properly aim at the good of the beloved, without thereby becoming objectionably paternalistic or encroaching, together with an alternative conception of love’s object. We bring out the significant advantages of this approach, which emphasizes our human interdependence and mutual vulnerability. Through a comparison with the ethical thought of K. E. Løgstrup, whose philosophy of love we present as standing in significant continuity with Kierkegaard’s, we further show how the expressly theological framework advanced in Works of Love may also be developed in a more secular direction.

The case of Ms. Sykes demonstrates some of the ethical challenges that arise in determining whether a patient should be eligible for an advanced therapy, specifically a ventricular assist device (VAD). Ms. Sykes was in advanced heart failure and denied the VAD by the eligibility committee. The denial was out of concern that she lacked the requisite social support at home, as she had told the team her husband was medically abusive and neglectful. While some members of the team did not believe her reports, others were concerned she was being "doubly victimized" by the husband and then by not receiving the only advanced therapy available to her. Ethics was called to assist the team based on this tension. The haunting aspects of the case are relayed by a clinical ethicist who was early in her career and a senior clinical ethicist who was acting as her mentor at the time. The fairness of the eligibility decision, as well as the appropriate role boundaries of clinical ethicists, are central to what they find haunting.

Chapter 6 makes it clear that definitions, categories and expertise have not ended interpretive issues. Definitions are disembodied. All forms of violence and suffering, their definition and recognition remain relational in reality, born out of a labyrinthine complexity – in terms of how they are constructed, communicated, filtered and understood. Preconceptions of who is deserving of recognition, the requisites for social identification, moral commitment or collective empathy reveal this to be the case. Social science takes suffering to be (inescapably) intersubjectively, textually and sensorially understood – so judicial determinations must also go beyond the technical and doctrinal. The chapter’s discussion on temporality continues the theme of sensing. It examines temporal registers in the recognition of torture – exploring the questions: how does time feature and function in juridical understandings of torture? This discussion on time adds to the kaleidoscopic catalogue of sense-centric registers and reasoning operating in the anti-torture field – illustrating it to be a device of inclusion and exclusion.