ibbetson

Ibbetson, //A Historical Introduction to the Law of Obligations// (1999) pp. 188-196  In the nineteenth century, the tort of negligence was expressed in terms of abstract general principles and was therefore very fragmented. In the twentieth century, detailed duties of care were superseded by a single duty of care   The fragmentary nature of the tort of negligence was largely the result of the tension between judge and jury. The near-total disappearance of the civil jury by the middle of the twentieth century resolved this tension, and with it broke down the fragmentary nature of tort. The consequence of this was that judicial control over the incidence of negligence liability no longer depended on the precise definition of a multiplicity of duties of care.  The turning point came in 1932 with //Donoghue v. Stevenson//, where it was held that a person injured by a defectively manufactured product might in principle have an action against the negligent manufacturer. Three possible routes could lead to this conclusion: The first one would support that a duty of care is owed by a manufacturer to the ultimate consumer. The second would accept an approach based on a multiplicity of duty situations, but without any requirement that new duty situations could be recognized only by very close analogy to duty situations that had previously been recognized Finally, //Donghue v. Stevenson// might have involved the wholesale rejection of the analysis dependent upon a multiplicity of duties of care in favor of a single requirement of taking reasonable care. This requirement asks you to “avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor (…), i.e. persons who are so closely affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.  By around 1970 the law of negligence was beginning to be conceptualized in terms of an ocean of liability for carelessly causing foreseeable harm, dotted with islands of non-liability, rather than as a crowded archipelago of individual duty situations. Such approach was enounced in //Anns v. Merton London Borough// Council, which set a two-stage test. First, one should consider if “between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity and neighborhood such that, in the reasonable contemplation of the former, carelessness of his part may be likely to cause damage to the latter”. Second, it is necessary to consider whether “there are any consideration which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise”. <span style="font-family: "Times New Roman","serif"; font-size: 12pt;">This approach was criticized for its excessive generality, especially in the way it had opened the possibility of liability being imposed on public bodies. Thus, the court should proceed incrementally from previously recognized duty situations. In addition, a duty situation arose not merely from the foreseeability of harm but that there is in addition a requirement of proximity <span style="font-family: "Times New Roman","serif"; font-size: 12pt;"> <span style="font-family: "Times New Roman","serif"; font-size: 12pt;">In addition, the generalization of liability after //Donoghue v. Stevenson// heralded a change in the conceptualization of the tort of negligence. Whereas nineteenth-century lawyers analyzed liability in terms in which the plaintiff’s loss had occurred, in the second half of the twentieth century there cut across this an analysis by reference to the type of loss suffered. <span style="font-family: "Times New Roman","serif"; font-size: 12pt;"> <span style="font-family: "Times New Roman","serif"; font-size: 12pt;"> <span style="font-family: "Times New Roman","serif"; font-size: 12pt;">The generalization of the duty of care was not the only change in the tort of negligence in the middle of the twentieth century: There was also a reintegration of the separate elements of duty, breach and remoteness. Such a tendency was accentuated by the disappearance of the jury because any need that once existed to separate out the various elements of the tort of negligence were now equally within the judicial domain.
 * <span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Generalization of the Duty of Care: **
 * <span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Reintegration of the Elements of Negligence: **