610007972

LAW2015 (Tort Law) Assessed Essay

Question

According to Donal Nolan,

...the overwhelming evidence is against the proposition that duties of care are really duties...: Deconstructing the duty of care !"#$%& $"' Law Quarterly Review (('

)hat does Nolan mean in saying this and what is his thesis on duty of care*

Answer !word count: $''+&

,n his writings on the nature of the duty of care as an element of tort, Nolan espouses a -elief in the theory that the concept is fundamentally flawed, and has even detrimentally affected the .uality of /legal0 reasoning in negligence cases $. 1uilding on the discussion of the issue elucidated -y earlier theorists such as 2ir 3.4. )infield ", Nolan sets out a framewor5 of deconstruction that reduces the current orthodo6y of duty to its -ase aspects and rewor5s them under the other standard elements of a tort !-reach, factual causation, legal causation and damage to plaintiff&, a-andoning the general ru-ric of Donoghue v Stevenson3 and its successors such as 7ord 8livers 9udgment in Caparo v Dickman:. 1y doing so, he intends to e6press two separate points: first, that the duty of care as it is understood in general tort law does not, in fact, constitute a duty at all; and
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610007972 second, that in eliminating the concept of a necessary duty in constructing negligence claims in tort, said claims may -e more efficiently handled in the courts !recurring in all negligence cases, such as the Astrid Andersen case( or Hedley Byrne , in which the construction of duty has -een said to -e e6cessively comple6 +&. <urthermore, in order to -est understand the structure of Nolans argument it is imperative that it -e reduced to its constituent aspects = the four preliminary points he ma5es that e6posit the -asis of his -elief, the deconstruction of duty which sets out the potential actioning of his thesis, and the counterpoint, an intrinsic element of any discussion of law. ,n regards to the first .uestion posed !Nolans meaning in discussing the duty of care misnomer&, Nolan attempts to e6plain how the theoretical understanding of duty contrasts the practical implementation of duty in the law, ma5ing particular reference to Leigh and Sillivan v Aliakmon Shipping! and the 4ohfeldian theory of rights '. ,n effect, the -asis for his -elief that duties of care are not legitimate legal duties -etween individuals and>or corporations can -e summarised with reference to 1owen 7?s 9udgment in Spartan Steel v "artin = that the negligence itself is only actiona-le when a mischief arises from the results of said negligence. 1ecause the duty is only actioned and therefore shown to e6ist when it is -reached, Nolan asserts, it is tautological to rely on the e6istence of a duty of care to prove a -reach in negligence torts; for there to -e an action under consideration, a -reach must have occurred, and a -reach can only occur if damage has -een sustained that violates the duty . @his circular logic has -een e6amined -y fore-ears of Nolans ideas, such as ?ane 2tapleton$# and ?onathan Aorgan$$, though in this case Nolan uses the e6ample of a negligent driver in 3icadilly to illustrate the model. @he model itself can
! " < 9 9 10 11 #eter (harlish' 8he 4strid 4ndersen case' 5nternational 1/orts Law Re iew 200,' ,(-o )' 9!09" $edley :yrne ; (o Ltd $eller ; #artners Ltd 219",3 4( ,"! #rofessor :uc6land' 8he Duty to 8a6e (are(193!) !1 Law Quarterly Re iew "3< Leigh ; 1illi an Ltd% 4lia6)on 1hi//ing (o% Ltd% 2199!3 Q%:% 3!0 &%-% $ohfeld' =unda)ental Legal (once/tions as a//lied in >udicial reasoning (19,") ?ale @ni ersity #ress .% 1ta/leton' Duty of A(are and Bcono)ic LossC 4 &ider 4genda (1991) 10< LQR 2,9 .% Dorgan' 8he rise and fall of the general duty of care #rofessional -egligence (200")' 22(,)' 20"022,

610007972 -e o-served in many actual instances, such as Smoldon v #hitworth $ %olan&', in evincing the nature of the duty as a guidelineBstandard to which we must strive rather than a meretricious rule we are for-idden to -rea5, and this is reaffirmed in Caldwell v "aguire&3 and Condon v Basi&() Nolan later refers to this model again in regards to Spartan Steel&* and, to a lesser e6tent, the watershed case of "urphy v Brentwood& , of the duty of care as an a6iomatic misnomer meant to refer to At5ins neigh-our principle as a ne-ulous moral um-rella rather than a definitive legal principle, and the application of this canard in negligence cases to oversimplify the elements re.uired to construct a claim. Nolan continues onto his ne6t points regarding the right>duty relationship to lia-ility in negligence and the roles of the duty element of a negligence tort, in which he underlines the elements of negligence relating to duties as misinterpreted = not simply duties of care as in the criminal sphere, -ut simply moral duties not to in9ure or otherwise harm others through negligent action !a duality of roles, mainly in regards to -oth factual duty in regards to the damages themselves, and the legal corollary of how the law interacts with the claim, though Nolan mentions other dualities&. 3rofessor 4art $+ ac5nowledges the role of negligence law as dealing with recompense for unanticipata-le forms of damage. 3atric5 Atiyah$C goes further in his e6amination of the purpose of negligence and general tort law, particularly in regards to the concept of the assumption of responsi-ility that pervades the pure economic loss strata of negligence claims $', and these criticisms are integral to understanding why Nolan stresses the flawed nature of duty in current negligence law, even referring to it as reminder of the oddity and incoherence of

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610007972 separating out one element of a cause of action and la-elling it duty B the issue in this case -eing the application of this flawed concept of duty as a tool of legal policy rather than a protector of general interests. ,n practice this principle evinces itself in Rothwell v Chemical and +nsulating Co)',: though the claimant!s& were o-serva-ly and irrepara-ly harmed -y the actions of their employer, the employers perceived duty did not e6tend to any potential or speculative damages the claimants may have suffered and therefore an issue of legal policy was developed rather than a simple rightsB-ased analysis !viD. @he inaliena-le rights of wor5ers to certain wor5ing conditions "$&. <urthermore, in -omlinson v Congleton'' we see the full e6tent of the application of the dual nature of the duty of care -oth in terms of factual duty !regarding the city council& and the legal duty !as set forth in the 8ccupiers 7ia-ility Act of $'C:&. Nolan refers to the EardoDo principle "% in e6ploring this issue and demonstrates his concerns with the concept of duty through an e6amination of two conflicting rationales regarding negligence law !the rightsB-ased and the policyB -ased& -y pointing to this duality and focusing on the schism -etween the two interpretations, in fact ac5nowledging the strengths and wea5nesses of -oth pertaining to the flaws of the concept of duty as a whole. Nolan continues to e6pound on notional duty later on, particularly in regards to statutory impositions on negligence law and the good for more than one ride principle of notional duties in creating -inding precedents in negligence law; however, aside from reference to @ony )eirs comments in Reeves v Comissioner o. /olice o. the "etropolis": his points regarding notional duty generally reiterate the points he has previously made, especially regarding the issue of notional duty as a policy tool !to assign the status of protected to certain interests such as those of the vulnera-le, the most commonly adduced instance of this -eing "arc Rich v Bishop Rock
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610007972 Aarine"(&. @he final note of evidence in the article regarding the flaws in the current conception of the duty of care pertain to the structural elements of a negligence claim = duty, -reach, causation, pro6imate causation, and damages. 3erhaps due to this pyramidal structure, negligence claims invaria-ly -egin with a prima facie discussion of duty; however, Nolan criticises this method of claim construction, primarily due to the rigidity of its structure. )ith reference to #hite v Chie. Consta0le"F and other cases, Nolan suggests that having duty as a prere.uisite rather than a component of other elements of negligence claims can often lead to misleading and o-tuse rules such as the $+.$# Gule "+ that precipitate overcomple6ity and in9ustice; instead, he suggests that the concept of duty should -e treated as analytically ancillary rather than analytically anterior to a construction of negligence. 4aving considered at length the rudimentary elements of the argument Nolan puts forward, it is possi-le to ma5e an inBdepth analysis of his thesis on the concept of duty of care , with the conte6t of Nolans previous arguments applied to his summation of the deconstruction of the duty, and separated into two parts: the how and the why of the aforementioned deconstruction. Nolan comments at length on the simplicity of separating duty in fact from duty in law. Although the institution is a traditional one, and perhaps could -e called archaic, the actual elements of duty have translated fairly cleanly into a modern conte6t, the precedent in this scenario -eing -he #agon "ound"C regarding the transition of factual duty into a test of pro6imate cause. Nolan asserts this through reference to the American methodology of tort, relying mainly on the foreseea-le claimant principle for ascertaining fault as put forth

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610007972 in Home 1..ice v Dorset 2acht"' on the issue of remoteness. 4e also ela-orates on the issue of notional duty or duty in law, suggesting that, due to the variance in different claims within the field of notional duty !the novus actus interveniens using Reeves as an e6ample, illegality, volenti non fit in9uria or even the 9usticia-ility rule that protects pu-lic authorities from certain legal scrutinies&, they could easily -e reassigned to other stages of the construction of a negligence claim in order to smooth the process out. 4owever, it is important to note that Nolan does raise attention to issues of protected interests and how they would factor into a deconstructed duty of care; however, this could potentially -e resolved -y way of deferring to Huropean authority%# on the matter. Iltimately, Nolan ac5nowledges that his framewor5 is inherently flawed -y way of creating a gap of 9ustice for certain interests = the comple6ity of the common law stems primarily from attempting to cater to and protect a diverse group of claimants and, conversely, -ring 9ustice to defendants ali5e, and in disassem-ling the duty of care that has developed so much comple6ity over its history, the common law would -e hardBpressed to resolve itself effectively without finding some sort of intermediate solution. ,t is also important to note that the system of tests used in negligence law apply primarily to the finding of a duty, such as in Roe v "inister o. Health3& and Bolton v Stone%"; if a duty is no longer a necessary element of constructing a claim, these tests may need to -e sharply altered to fit a new paradigm, and Nolan discusses this himself later on in his discussion of 9udicial normativism and incrementalism in issues of law. @he cru6 of the issue = the positive effects of the a-olition of the duty principle = is the lynchpin of Nolans argument, and rests primarily on his -elief in five main outcomes that would effectively solve the issues raised in such pro-lematic cases as 3verett v

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610007972 Como4o33: a streamlined, straightforward e6amination of legal matters precipitated -y potential negligence claims that introduces greater clarity to the process; a system that allows for the consideration of an issue that arises in a case holistically rather than when each instance of it is encountered within each stage of the claim; a more policyBfriendly approach towards claims that reduces the li5elihood of important factors going unnoticed; less confusion -etween notional and material issues in negligence claims !which are in and of themselves comple6, made moreso -y the categorical nature of the former and the specificity of the latter&; and, intrinsically, the -road nature of duties of care that allow for so much -revity, that can -e -oth positive in its e6trapolation to other cases as legal fact yet so negative in creating traps of law%: that engender the -lame culture modern 1ritain. Nolans thesis can -e conclusively stated to -e in opposition to the concept of duties of care. 4e presents an argument that suggests that negligence duties are not the duties of criminal law -ut are, instead, categorical similarities used -y the courts as a product of, rather than a -asis for, legal precedent %F, and is sharply critical of this rationale.
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Bibliography $. A. 7unney, J. 8liphant, @ort 7aw: @e6t and Aaterials !: th edition& 86ford Iniversity 3ress !"#$#& ". 3. Eane, @he Anatomy of @ort 7aw 4art 3u-lishing !$''+&

33 B erett (o)o>o (@H) Ltd 220113 B&(4 (i 13 3, :ar*ara =ried' 8he li)its of a nonconseKuentialist a//roach to torts Legal 8heory (2012)' 19(3)' 23102"2' fn% <3 3! Richard Dullender' -egligence law and *la)e cultureC a critical res/onse to a /ossi*le /ro*le) #rofessional -egligence (200")' 22(1)' 2031 3" Richard :uFton' $ow the co))on law gets )adeC $edley :yrne and other cautionary tales L%Q%R% 2009' 12!(.an)' "00<9