Book contents
- Frontmatter
- Contents
- Contributors
- Preface
- INTRODUCTION
- SECTION I TORT LAW IN THE NEW MILLENNIUM: PAST AS PROLOGUE
- SECTION II COMPENSATION AND DETERRENCE IN THE MODERN WORLD
- SECTION III DUTY RULES, COURTS, AND TORTS
- 5 THE DISINTEGRATION OF DUTY
- 6 MANAGING THE NEGLIGENCE CONCEPT: RESPECT FOR THE RULE OF LAW
- 7 REBUILDING THE CITADEL: PRIVITY, CAUSATION, AND FREEDOM OF CONTRACT
- 8 CONTROLLING THE FUTURE OF THE COMMON LAW BY RESTATEMENT
- 9 INFORMATION SHIELDS IN TORT LAW
- 10 THE COMPLEXITY OF TORTS – THE CASE OF PUNITIVE DAMAGES
- 11 THE FUTURE OF PROPORTIONAL LIABILITY: THE LESSONS OF TOXIC SUBSTANCES CAUSATION
- SECTION IV TORTS IN A SHRINKING WORLD
- Index
5 - THE DISINTEGRATION OF DUTY
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Contributors
- Preface
- INTRODUCTION
- SECTION I TORT LAW IN THE NEW MILLENNIUM: PAST AS PROLOGUE
- SECTION II COMPENSATION AND DETERRENCE IN THE MODERN WORLD
- SECTION III DUTY RULES, COURTS, AND TORTS
- 5 THE DISINTEGRATION OF DUTY
- 6 MANAGING THE NEGLIGENCE CONCEPT: RESPECT FOR THE RULE OF LAW
- 7 REBUILDING THE CITADEL: PRIVITY, CAUSATION, AND FREEDOM OF CONTRACT
- 8 CONTROLLING THE FUTURE OF THE COMMON LAW BY RESTATEMENT
- 9 INFORMATION SHIELDS IN TORT LAW
- 10 THE COMPLEXITY OF TORTS – THE CASE OF PUNITIVE DAMAGES
- 11 THE FUTURE OF PROPORTIONAL LIABILITY: THE LESSONS OF TOXIC SUBSTANCES CAUSATION
- SECTION IV TORTS IN A SHRINKING WORLD
- Index
Summary
abstract. 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, Donoghue v. Stevenson, 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.”
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 chapter. 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 of wrongdoing.
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- Exploring Tort Law , pp. 143 - 186Publisher: Cambridge University PressPrint publication year: 2005
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