Simplifying the Complexities of Negligence Law - A Joint Academic/Judicial Proposal

55 Pages Posted: 10 Feb 2020 Last revised: 12 Feb 2020

See all articles by Israel Gilead

Israel Gilead

Hebrew University of Jerusalem - Faculty of Law

Date Written: January 24, 2020

Abstract

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 (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 CSS’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.

Keywords: Torts; negligence; duty of care; proximity; assumption of responsibility; unforeseeable plaintiff

JEL Classification: K13

Suggested Citation

Gilead, Israel, Simplifying the Complexities of Negligence Law - A Joint Academic/Judicial Proposal (January 24, 2020). Journal of European Tort Law 207 (2019); Hebrew University of Jerusalem Legal Research Paper No. 20-07. Available at SSRN: https://ssrn.com/abstract=3524873 or http://dx.doi.org/10.2139/ssrn.3524873

Israel Gilead (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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