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McLoughlin v O'Brien [1982] gave rise to debates surrounding the area of policy and principle in cases, more notably, cases of tort.
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Jurisprudence. Term 1 Assignment In terms of legal theory the case of McLoughlin v O'Brien [1982]1 gave rise to debates surrounding the area of policy and principle in cases, more notably, cases of tort. Like many other cases in tort, this case centred upon the broad head of nervous shock for which the plaintiff sought to claim damages. Lord Scarman in particular was of the Dworkinian persuasion and put forward that judges should be guided by principles as opposed to policy and that policy should be left to the legislature or parliament: '...the distinguishing feature of the common law is...judicial development of principle. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path...The policy issue where to draw the line is not justiciable... ' However, Lord Edmund-Davies was more open to the possibility of judicial decisions being policy...
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