Rediscovering the Law of Negligence. By Allan Beever. [Oxford: Hart Publishing. 2007. xxxi, 515, (bibliography) 10, and (index) 4 pp. Hardback £50.00. ISBN 981841136868.] (original) (raw)
Related papers
The Cambridge Law Journal
Few doctrines in the law of torts have received as much scholarly attention as the duty of care in negligence. It is legitimate to ask what new contribution a treatise on duty can make. James Plunkett's The Duty of Care in Negligence provides a useful consolidation of the historical and modern evolution of duty and a thoughtful critique of some current scholarly debates. Those who work in the field may find this material to be largely familiar: the historical terrain has already been well-charted by David Ibbetson and others; and the journey from Donoghue v Stevenson [1932] A.C. 562 to Anns v Merton London Borough Council [1978] A.C. 728 and Caparo Industries v Dickman [1990] 1 A.C. 605 is all too well known. Plunkett also provides a catalogue of the various methodologies for assessing novel duty situations, and a discussion of the appropriateness of using so-called "policy" reasoning in duty cases. The latter debate has become, to some scholars, detached from reality. The meat of Plunkett's book is contained in chs. 4, 5 and 6, which assess the respective concepts of "factual duty" and "notional duty". Factual duty refers to the determination "whether harm to the plaintiff was a reasonably foreseeable consequence of the defendant's conduct", while notional duty refers to the question "whether the broad circumstances in which the plaintiff suffered the injury ought to be subject to the laws of negligence" (emphasis original). With respect to the first inquiry, Plunkett agrees with critics who find the duty question superfluous in negligence analyses, as it overlaps with the more clearly factual questions of whether the defendant breached the standard of care and whether the loss was too remote. All of these questions boil down to an assessment of whether the defendant's actions posed a foreseeable risk of the injury suffered by the plaintiff. Plunkett thus argues that the factual inquiry should be removed from duty analyses, which should instead focus exclusively on the notional question. After reviewing the various duty "tests" that have been employed over the last century (and their respective flaws), Plunkett proposes that the quest for a single notional duty test be abandoned and replaced with five broad duty categories, each with its own principles of recovery and non-recovery. For cases involving physical injury, property damage or psychiatric harm, the principles would explain a general rule of recovery, subject to narrow exclusionary exceptions. Conversely, for cases involving omissions and purely economic loss, the principles would explain a general exclusionary rule, subject to narrow inclusionary exceptions. By employing these more discrete duty categories, Plunkett argues, we would be able more clearly to identify which principles were relevant to any given duty scenario, and avoid having to use concepts like "proximity" in such a broad way as to be vague and unhelpful. Plunkett's proposal seems sensible, and reflects, to a large measure, the way that appellate courts already approach these situations in practice. Indeed, the UK
Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal
Journal of European Tort Law, 2020
Over a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author's model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model's operation by applying it to the 2018 SCC's decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.
The Vulnerable Subject of Negligence Law
International Journal of Law in Context, 2012
The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it is dependent.
The Dynamics of Negligence and Causation in English Medical Law
2011
The paper evaluates the very complex issue of clinical negligence which in the past few years has attracted a significant amount of legal debates in England and Wales. Much of the debate has been on, how causation interconnects responsibility and harm. The paper discusses the concept of negligence. By focusing largely on two major cases that produced opposing rulings namely Gregg v. Scott [2005] UKHL 2 and Chester v. Afshar [2004] UKHL 41; the paper explains the implications of the two cases to the current state of the law.
On the Function of the Law of Negligence
This article offers an understanding of the law of negligence which explains its concern with both interpersonal justice and community welfare. It argues that close attention to the structure of the duty of care inquiry and the reasoning in duty cases suggests that the law of negligence has an underlying community welfare purpose, but that purpose is not to be found in notions of deterrence, compensation or the improvement of standards of behaviour. The community welfare purpose underlying the law of negligence must be one that is more directly served by doing interpersonal justice. The best available explanation is that the law of negligence functions to maintain civil peace by providing an avenue of recourse for certain interpersonal wrongs. This analysis explains why the duty inquiry focuses primarily on considerations of interpersonal justice but, like other private law doctrines, also attends to the community welfare effects of imposing liability.
Law Quarterly Review, 2022
In this case note, we consider the UK Supreme Court decision in Meadows v Khan [2021] UKSC 21, [2022] AC 852, which concerned the scope of the duty of care that a GP owed to a patient who was a carrier of the haemophilia gene. Although we agree with the decision in the case, we argue that the approach of the majority Justices was unnecessarily complex, and that the issue should have been dealt with as a question of remoteness rather than duty. We also subject the majority's six-part 'roadmap' for negligence cases to critical review, and conclude that it is likely to obfuscate rather than illuminate. Keywords: tort; medical law; negligence; scope of duty; remoteness; SAAMCO principle
Victoria University of Wellington Law Review
True proportionality between the degree of a tortfeasor's fault and the extent of a plaintiff's loss is unachievable in negligence law in New Zealand. As Mallon J's judgment in Strathboss Kiwifruit Ltd v Attorney-General highlighted, the concept of proportionality can only be used to negate an alleged tortfeasor's duty of care, thereby eliminating the potential for liability. This approach does not accommodate differing levels of disproportionality. Moreover, relying on negligence law's liability limiting mechanisms to achieve proportionality, as Mallon J did in Strathboss, will not always be fruitful; there may still be a large gap between what a defendant has done and what the defendant is held accountable for. The extent of a tortfeasor's liability may depend on luck rather than principle. However, internationally, the wrongful conception and birth cases reveal a more nuanced use of proportionality: reducing the scope of a tortfeasor's duty of care. Wh...