Deconstructing the Duty of Care

(2013) 129 Law Quarterly Review 559-588

34 Pages Posted: 3 Jan 2018

See all articles by Donal Nolan

Donal Nolan

University of Oxford - Faculty of Law

Date Written: October 1, 2013

Abstract

In this article, I subject to critical review the orthodoxy that the “duty of care” is an essential component of the common law of negligence. I argue that the duty of care concept is obscuring understanding of negligence law and hindering its rational development. I therefore propose the “deconstruction” of duty, a process whereby the disparate issues currently subsumed under the duty umbrella are separated out and reclassified under the other components of the negligence enquiry, namely fault, damage, causation, remoteness and defences. I also argue that scepticism about the duty of care is not incompatible with a rights-based approach to negligence law, and that deconstructing duty would improve the quality of judicial reasoning in negligence cases, give a sharper edge to scholarship in the field, and improve the understanding of those coming to negligence law for the first time.

Keywords: negligence, duty of care, structure of negligence law

Suggested Citation

Nolan, Donal, Deconstructing the Duty of Care (October 1, 2013). (2013) 129 Law Quarterly Review 559-588. Available at SSRN: https://ssrn.com/abstract=3093657

Donal Nolan (Contact Author)

University of Oxford - Faculty of Law ( email )

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Oxford, OX1 3UL
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HOME PAGE: http://www.law.ox.ac.uk/people/donal-nolan

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