The Duty Problem in Negligence

Abstract

Textbooks on tort begin with the trite proposition that the commission of a tort requires a duty, breach of that duty and, generally, damage. In the tort of negligence, we are told, the duty is a duty of care. The usual way in which this is formulated is that if you can foresee that your conduct is likely to affect a given person, there arises the duty to take care that your conduct does not injure him. The idea seems to be taking root in Roman-Dutch law as well, which is remarkable in view of its Civil law origin. A good deal of controversy has arisen as to whether the notion of the duty of care is necessary or not. It is here suggested that the differences of opinion are reconcilable, but in order to do that we must examine the place which the duty of care occupies in negligence, both in English law and in Roman-Dutch law, since much comment on English law has been forthcoming from the latter quarter and comparison will be instructive. The basis of the proposed reconciliation is that the duty of care is a hybrid notion, combining a question of law and of fact, a dichotomy which is apparent in the language of judges and writers. Those who seek to defend its utility seem mindful of the element of law in it, while those who attack it are thinking of the element of fact. In order to elucidate these elements it is necessary to analyse the tort of negligence. This article will be confined to the examination of the legal element. It will be helpful to begin by appreciating what is meant by the “tort of negligence.”