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The Duty Problem in Negligence
Published online by Cambridge University Press: 16 January 2009
Extract
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.”
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- Copyright © Cambridge Law Journal and Contributors 1955
References
1 Donoghue v. Stevenson [1932] A.C. 562, especially the speech of Lord Atkin, Lochgelly Iron, etc., Co., Ltd. v. M'Mullan [1934] A.C. 1, 25; Grant v. Australian Knitting Mills, Ltd. [1936] A.C. 85, 101, 103; Nicholls v. Ely Beet Sugar Factory, Ltd. [1936] Ch. 343, 351.
2 , Salmond on Torts, 11th ed., 36Google Scholar; Pollock, , Law of Torts, 15th ed., D, Excursus, 326Google Scholar; Winfield, 42 L.Q.R. 184; Charlesworth, , Negligence, 8Google Scholar; Clerk, & Lindsell, , Torts, 11th ed., 344Google Scholar; Paton, 23 Austr.L.J. 158; Payne, , 6 Current Legal Problems, 236.Google Scholar
3 Winfield, , op. cit., also Tort, 6th ed., 477Google Scholar, says that it was a process, which was complete in “almost our own generation”; yet Payne, , op. cit., 238Google Scholar, says it became a tort in 1932, Paton, , op. cit., 159Google Scholar, says it occurred in 1934.
4 Winfield, 42 L.Q.R. 184; Plucknett, , A Concise History of the Common Law, 4th ed., 435Google Scholar; Fifoot, , History and Sources of the Common Law, 154Google Scholar; Milsom (1954) Camb.L.J. 105.
5 No liability for non-physical harm, e.g., Cattle v. Stockton Waterworks Co. (1875) L.R. 10 Q.B. 453; Correlli v. Wall (1906) 22 T.L.R. 532, 533; La Société Anonyme de Remorquage à Helice v. Bennetts [1911] 1 K.B. 243; Sports, Ltd. v. Our Dogs Publishing Co. [1916] 2 K.B. 880; Hunt v. Damon (1930) 46 T.L.R. 579; Candler v. Crane [1951] 2 K.B. 164, 189; Best v. Fox [1952] A.C. 716, also [1950] 2 All E.R. at 800–1; Abbott v. Sullivan [1952] 1 K.B. 189, 216; Perera v. Vandiyar [1953] 1 W.L.R. 672.
6 Other examples, intentional injury to trespassers, intentional interference with contract. Prosser, 52 Michigan L.R. 10: “A contract interest is not entitled to protection against mere negligence”: Charlesworth, , Negligence, 14–17Google Scholar; Salmond, on Torts, 501Google Scholar; Buckland, & McNair, , Roman Law and the Common LawGoogle Scholar, 2nd ed., Excursus, 368: Marsh, 69 L.Q.R. 183–4. In Corbett v. Burge, Warren & Ridgley, Ltd. (1932) 48 T.L.R. 626 it was stated that liability for harm of the type inflicted in the case required malice, negligence being insufficient.
7 42 L.Q.R. 196, n. 2.
8 The House of Lords has laid it down that there is no liability in deceit for careless false statements resulting in pecuniary harm: Derry v. Peek (1889) 14 App.Cas. 337; and the Court of Appeal has decided that there is none in negligence either: Candler v. Crane [1951] 2 K.B. 164. It is not clear whether or not there is liability for proprietary or personal injury so caused. Australian Steam Shipping Co., Ltd. v. Devitt (1917) 33 T.L.R. 178, and Humphrey v. Bowers (1929) 45 T.L.R. 297, refused a remedy for proprietary harm, but both are pre-1932 cases based on the fallacy that contractual privity restricts liability in tort, which was exploded in Donoghue v. Stevenson [1932] A.C. 562. Sharp v. Avory [1938] 4 All E.R. 85, suggests that there might be liability for personal injury, while Old Gate Estates, Ltd. v. Toplis [1939] 3 All E.R. 209, suggests that such an action should be limited to personal injury, but L.J., Asquith in Candler's case at p. 189Google Scholar was prepared to include proprietary harm. In the Pass of Ballater [1942] P. 112, an independent contractor made the careless misstatement, which resulted in property damage, and the employer was held liable but on a different point.
9 Wilkinson v. Downton [1897] 2 Q.B. 57; Janvier v. Sweeney [1919] 2 K.B. 316. Carelessness came later, Dulieu v. White [1901] 2 K.B. 669; Hambrook v. Stokes [1925] 1 K.B. 141, 158, where Atkin L.J. treats shock as a kind of personal injury; Bourhill v. Young [1943] A.C. 92.
10 Winfield doubted whether there is such a tort: Winfield on Tort, 92; the American Restatement of Torts, Vol. 1, s. 17, regards it as a species of bodily harm only. Bohlen traces its recognition: Studies in the Law of Tort, 252. Goodhart regards it as a tort, but he gives no explanation: 16 M.L.R. 22; L.J., Denning in King v. Phillips [1953]Google Scholar 1 Q.B. 429, 440–2, refused to regard it as a separate tort. The words of Street may well be applied to the point suggested above: “The treatment of any element of damage as a parasitic factor belongs essentially to a transitory stage of legal evolution. A factor which is today recognised as parasitic will, forsooth, tomorrow be recognised as an independent basis of liability”: The Foundations of Legal Liability (1906) 470.
11 Principal protagonists: Winfield, 27 Col.L.R. 1 (reprinted in Select Legal Essays, 3); Salmond, , Torts, 15Google Scholar; Pollock, , Torts, 16.Google Scholar For a review of the controversy and a list of other writers, see Glanville Williams, 7 Camb.L.J. 111. See also Prosser, , Torts, 4Google Scholar; Lloyd, 29 Can.B.R. 210.
12 On this topic, see Wright, 19 Can.B.R. 465.
13 Cavalier v. Pope [1906] A.C. 428; Bottomley v. Bannister [1932] 1 K.B. 458: Otto v. Bolton [1936] 2 K.B. 46; Travers v. Gloucester Corporation [1947] 1 K.B. 71.
14 Mogul Steamship Co. v. McGregor, Gow & Co., Ltd. (1889) 23 Q.B.D. 598.
15 Searle v. Wallbank [1947] A.C. 341.
16 e.g., injurious falsehood, malicious prosecution, malicious issue of civil process.
17 Knapp v. Railway Executive [1949] 2 All E.R. 508.
18 7 Camb.L.J. 113–4. Examples of case-law, Cattle v. Stockton Water-works Co. (1875) L.R. 10 Q.B. 453, 458; Shaw Savill and Albion Co., Ltd. v. Commonwealth (1940) 66 C.L.R. 344 (Australian). Extra-legal reasons call for the exercise of value judgments: Winfield, on Tort, 480Google Scholar, n. (m); Stone, , Province and Function of Law, 166Google Scholar; Morison, 11 M.L.R. 23. The latter in effect affirms what Dr. Williams had said previously: the extension or refusal to extend the area of “duty situations” involves a “creative choice” on the part of the court.
19 Buckland, 51 L.Q.R. 637; Some Reflections on Jurisprudence, 110, saw clearly that the tort of negligence consisted of damage carelessly inflicted. He says: “Is not the rational rule that … there is a duty to everyone not to damage him by carelessness?”: 51 L.Q.R. 649. He had said earlier: “It is more rational to say that there is always a duty not to harm people by negligence”: ibid. 641. This way of putting it recognises the vital point that a duty is an abstract proposition of law. Its defect is that it is too widely stated. Had he said that there is a duty to certain categories of persons not to inflict certain types of damage carelessly, it would have been complete.
20 [1936] A.C. 85, 103.
21 The suggestion that Fragment 8.4, “si injuriam faxit” laid down a general principle is not viewed seriously, nor the suggestion based on Festus, 265, 322. The categories of harm seem to have been: fire, D. 47.9.9; Cicero, DeLeg. 2.24.61: witchcraft, Seneca, Qu. Nat. 4.7.4; Pliny, Nat. Hist. 18.6.41; 28.2.17: depasturing crops, D. 19.5.14.3; Pliny, op. cit., 18.3.12: cutting corn, Pauli Sent. 2.31.24: cutting trees, D. 47.7.1; 47.7.11; Pliny, , op. cit.Google Scholar, 17.1.7: injury to human beings, Gellius, 20.1.14; Collatio, 2.5.5: overhanging trees, D. 43.27.1.8; 43.27.2: discharge of water, D. 39.3.22.2; 40.7.21 pr: collapse of buildings, perhaps an early form of damnum infectum: damage by animals, D. 9.1.1 pr; Inst. 4.9 pr: damage by slaves, D. 9.4.21; Gaius, 4.76.
22 Lawson, , Negligence in the Civil LawGoogle Scholar, translates it as partially repealed and D. 50.16.102 is to the same effect. But it is questionable whether the XII Tables could be repealed by normal constitutional machinery: Buckland, , Main Institutions of Roman Private Law, 3Google Scholar. Professor P. W. Duff kindly pointed out to me that D. 50.16.102 does not refer specifically to the XII Tables.
23 D. 9.2.2 pr; 9.2.27.5.
24 This is suggested by the absence of dolus and culpa (intention and negligence) in the first and third chapters, the fact that the penalties were the same for injuries inflicted either way and the fact that liability in primitive law is generally strict. Liability was strict under the XII Tables as regards injury to the person (Cicero, Pro. Tull. 21. 51) and certain other cases as well. I am indebted to Mr. J. W. C. Turner for an interesting suggestion. In D. 9.2.45.3 B attacks A and A throws a stone at him, misses and hits a passing slave. Had he struck B, self-defence would have justified the act as B was attacking him. The text says that A is liable for striking the slave. Self-defence cannot apply as against the slave, who was not attacking A. Mr. Turner's suggestion is that since apparently inevitable accident was no defence either, outside the limited scope of the recognised defences liability seems to have been strict.
25 Daube, 7 Camb.L.J. 40; Studi Solazzi, 93, says it meant loss.
26 Daube, 52 L.Q.R. 253; Jolowicz, 38 L.Q.R. 220. Daube's view is approved by Lawson, , Negligence in the Civil Law, 10.Google Scholar
27 D. 9.2.27.7–9.
28 D. 9.2.13 pr.
29 22 Tulane L.R. 116; Negligence in the Civil Law, 24, and in Buckland, & McNair, Roman Law and the Common Law, 2nd ed., 367Google Scholar; the distinction has also been adopted by McKerron, (1951) Ceylon Law Students' ReviewGoogle Scholar, 8, reprinted 69 S.A.L.J. 189.
30 Buckland, , Textbook, 2nd ed., 589Google Scholar, says there was no discoverable principle.
31 Lawson, , Negligence in the Civil Law, 26Google Scholar; Price, 66 S.A.L.J. 176.
32 D 9.2.7.1; 9.2.7.2; 9.2.7.7; 9.2.9.1; 9.2.9.4.
33 D. 9.2.7.6; 9.2.9 pr; 9.2.9.2; 9.2.9.3; 9.2.11.1. D. 9.2.7.3 looks as if it should be the extended direct action, not in factum. Perhaps in Proculus's time the extension of the notion of direct killing may not have covered a case like this, hence the praetor gave an actio in factum.
34 Direct damage (by extending rumpere), D. 9.2.27.15; 9.2.27.18; 9.2.27.19; 9.2.27.20. Indirect damage, D. 9.2.27.21 (Mr. Turner suggests that the actio in factum may be a survival from a period before the extension of rumpere covered a case like this); 9.2.27.35; 9.2.53; 41.1.55. Note that the actions given are in factum, though Justinian said, Inst. 4.3.16, that where the damage was corpori but not corpore the actio was utilis. This shows that his classification does not reflect classical terminology.
35 There is another reason for preferring the Collatio. In classical law the technical verb for a civil action was “competit,” for a praetorian action, “danda.” The ad exemplum Aquiliae dandam actionem” in the Collatio is perfectly accurate, while Ulpian would hardly have said “utilem competere actionem” as he is made to do in the Digest, an error akin to an English lawyer speaking of prosecuting for a tort or suing for a crime. It is more likely that the compilers of the Digest, to whom these technicalities had lost all significance, slipped into the error in the course of abridgment.
36 D. 9.2.12 pr. Note D. 9.2.30.1, where a third party damaged property in the hands of a pledge-creditor. The debtor is owner and the text implies that his action is civil (“debitori actio competit”) and that of the pledgee praetorian, (“creditori danda sit utilis”). Up to that point the text rings genuine, but after quacritur there is room for doubt.
37 Gaius, 4.37.
38 Voet, 9.2.11.
39 Union Government v. Warneke [1911] A.D. 657; Abbott v. Bergman [1922] A.D. 53.
40 [1923] A.D. 207, 217.
41 [1934] C.P.D. 151, 155.
42 [1922] A.D. 492. 507. See also McKerron, , The Law of Delict, 4th ed., 12.Google Scholar
43 [1954] (3) S.A. 464, 477 (A.D.).
44 Halliwell v. Johannesburg Municipal Council [1912] A.D. 590, 601, 618; Cape Town Municipality v. Paine [1923] A.D. 207, 217; S.A.R. & H. v. Estate Saunders [1931] A.D. 276, 283–5; Macintosh, & Scoble, , Negligence in Delict, 2nd ed., 2–3, 7–8Google Scholar; McKerron, , op. cit., 25–34Google Scholar, especially 26, n. 23 for a list of the authorities.
45 Beinart, : Review in the Tydskrif vir Hedendaagse Romeinse-Hollandse Reg, Nov. 1949Google Scholar; Heever, Van den, Aquilian Damages in South African Law, i, 37.Google Scholar
46 Smith v. Smith [1914] A.D. 257.
47 McKerron, , op. cit., 275.Google ScholarQuaere whether a public authority which increases flow is liable, although a private landowner would not be: Johannesburg Municipality v. African Realty Trust [1927] A.D. 163, 177.
48 Van den Heever v. Hanover Municipality [1938] C.P.D. 95.
49 Matthews v. Young [1922] A.D. 492, 507.
50 McKerron, , op. cit., 312, 314–8.Google Scholar
51 McKerron, , op. cit., 256.Google Scholar
52 [1934] C.P.D. 157.
53 Ibid., 328.
54 McKerron, . op. cit., 15–16. 356Google Scholar; 47 S.A.L.J. 359: (1951) Ceylon Law Students' Review, 8, reprinted 69 S.A.L.J. 189; Price, 67 S.A.L.J. 138, 257, 411; 68 S.A.L.J. 78.
55 [1954] (3) S.A. 464.
56 (1954) 56 N.L.R. 121, 124, 127.
57 Farmer v. Robinson Gold Mining Co. [1917] A.D. 501; Bellstedt v. S.A.R. & H. [1936] C.P.D. 399; Sand & Co., Ltd. v. S.A.R. & H. [1948] (1) S.A. 230 (W).
58 Transvaal & Rhodesian Estates, Ltd. v. Golding [1917] A.D. 18, and see generally McKerron, , op. cit., 278.Google Scholar