Lord Morton of Henryton said that clause 7 did not exclude negligence liability in clear enough terms and clause 17 was ambiguous and would be construed against the Crown.

Ms. Estrich also makes a strong case for negligence liability, to punish men who honestly but unreasonably believed that a woman had consented to intercourse.

Secondly, a distinguishing characteristic of negligence liability (and indeed of the legal approach in general) is that it attaches to single episodes of management failure.

Directors may, and frequently do, however, insure against negligence liability and this is likely, at least in part, to off-set any reluctance to take office through the fear of having to meet a damages award.

From this perspective, in imposing negligence liability the court can be seen merely as upholding private rights, and that is hardly an 'intrusion'.

This would give rise, the court said, to a "special relationship", in which the defendant would have to take sufficient care in giving advice to avoid negligence liability.

The second ground appears to be straightforward negligence liability regarding defective premises.

With regard to negligence liability, for example, all directors must exercise the care of a reasonably prudent person.

The second possible ground for pursuing a defense was asserted by the city in its argument addressing the possibility of negligence liability in this case.

This is a particular example of negligence liability but is owed only to employees and not to independent contractors.