Duty of Care: An Analytical Approach
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2005-03-01
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Oxford Journal of Legal Studies
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Oxford University Press (OUP)
Melbourne Authors
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Law
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Journal Article
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Witting, C. (2005). Duty of Care: An Analytical Approach. Oxford Journal of Legal Studies, 25 (1), pp.33-63. https://doi.org/10.1093/ojls/gqi003.
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C1 - Journal Articles Refereed
Abstract
This article takes issue with the argument that duty of care determinations in negligence are (or should be) made primarily by reference to policy-based reasons. The three-stage test for duty comprises elements that are separate and distinct from each other. Foreseeability and proximity involve an evaluation of the factual circumstances of the parties before the court whereas policy considerations usually involve a consideration of the consequences of different legal rules for non-parties about whom knowledge will be limited. The presence of proximity factors speaks unequivocally in favour of duties of care. By contrast, many of the policy reasons invoked in negligence cases are contentious and contestable; they provide no clear guidance in judicial reasoning. The author seeks to justify his thesis, and to refute Professor Jane Stapleton’s argument against a ‘pockets of case law’ analysis, by reference to the example of negligent misstatements. It is demonstrated that, even in this most disorganized area of negligence, proximity-based reasoning provides a secure basis for answering the duty question.
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Tort Law ; Other