The Disintegration of Duty
65 Pages Posted: 4 May 2005
Throughout the common law world there is no liability for negligence unless the defendant breached a duty of care owed to the plaintiff. But when is such a duty owed? In the foundational judgment of English negligence law in 1932, Lord Atkin asserted that there must be, and is, a general conception of relations giving rise to a duty of care. Lord Atkin thereby gave expression to the view that the law cannot treat the collection of duties as a chaotic miscellany of disparate norms. Rather, the systematic nature of legal norms requires both that all duties of care be thematically unified through the same underlying principle and that each particular duty be internally coherent. More recently, however, courts seem to have given up on the attempt to formulate or appeal to a general conception of duty and have returned to the multiplicity of particular duties that Lord Atkin deplored. This has caused a disintegration of duty in two senses. The entire ensemble of duties is no longer regarded as a coherent set, and each particular duty is fragmented into factors that separately determine the duty's ground and limits. The general conception of the duty of care - its theoretical basis, its structural constituents, its more recent disintegration back into particular duties, and the need to recapture what a general conception of duty implies - is the subject of the present essay. 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 in the following steps. It first shows through an analysis of the landmark cases of the twentieth century how duty fits with other negligence concepts (failure to exercise reasonable care, factual causation, and proximate cause) to connect the defendant's act to the plaintiff's injury in a normatively coherent way. It then sets out the internal structure of the duty of care, that is, what its constituents must be if it is to reflect a coherent conception wrongdoing. These constituents make up the general conception of relations giving rise to a duty of care that Lord Atkin sought. The essay then examines the two-stage test for negligence that is used in Canada and other jurisdictions, arguing that this internally fractured test is inadequate for the development of a coherent jurisprudence of negligence. Finally, the essay discusses the meaning and relevance of the much-invoked policy for the determination of the duty of care, concluding that the coherence of its underlying justifications is itself the supreme policy of the law of obligations.
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