The Disintegration of Duty
Advocates Quarterly, Vol. 31, p. 212, 2006
45 Pages Posted: 26 Sep 2008
Date Written: September 1, 2006
In his great judgment in Donoghue v Stevenson Lord Atkin articulated a general conception of duty which reflected the common aspect that each particular duty must have if it is to be systematically related to every other particular duty. This general conception of duty is an implication of the internal coherence required by the law's systematic nature.
In recent years the sense of juridical necessity apparent in Lord Atkin's judgment has waned. Lord Atkin's own formulation of the general conception in terms of a duty to avoid foreseeable harm to a neighbour, path-breaking as it was, has been recognized not to provide a practical test. Furthermore, the widely accepted idea that duty is a matter of "policy" has led to a distaste for the abstract practical reasoning that undergirds a general conception of duty. The result has been a disintegration of duty.
Taking corrective justice as the theoretical notion underlying Lord Atkin's insistence on a general conception of duty, this essay discusses the disintegration of duty by examining: how duty fits with other negligence concepts, the internal structure of the duty of care, the meaning and relevance of the much invoked "policy" for the determination of the duty of care, and the two-state test for negligence currently used in Canada and elsewhere.
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