Breach of Duty: A Disappearing Element of the Action in Negligence?
James Goudkamp, 'Breach of Duty: A Disappearing Element of the Action in Negligence?' (2017) 75 Cambridge Law Journal 480
4 Pages Posted: 23 Aug 2017 Last revised: 30 Dec 2017
Date Written: August 19, 2017
The conventional understanding that the tort of negligence comprises discrete elements is being attacked by stealth, with the courts quietly placing pressure on the distinctions that have been traditionally drawn between the tort’s ingredients. The recent decision of the Court of Appeal in Darnley v Croydon Health Services NHS Trust  EWCA Civ 151 is an important development in this regard in that it contributes significantly to the erosion of the customary divide between the duty of care and breach elements of the action in negligence. The consequence of that erosion is that cases that would previously have been understood as being breach cases are increasingly being treated as – and only as – duty cases. In short, contrary to the conventional structure of the tort of negligence, the breach element of the action is slowly but surely disappearing.
Keywords: Tort, negligence, duty of care, breach
JEL Classification: K13
Suggested Citation: Suggested Citation