Duty : a conceptual history of negligence in the twentieth century

This dissertation explores the conceptual evolution of the duty of care during the late-nineteenth and twentieth centuries. In the early history of negligence, the duty of care was defined by reference to established categories. These categories helped to confine liability to certain types of relationships or circumstances, with expansion occurring only by increment and analogy. Thus, duty played an important “gatekeeper” function in the formative years of negligence. However, as the categories of duty grew in number, there were attempts to define a more general theory of the duty of care. The most famous exposition of this theory was Lord Atkin’s decision in Donoghue v. Stevenson, where he coined the legendary “neighbour” principle. Although it took some time to gain widespread acceptance, Lord Atkin’s general theory of duty ushered in an era of judicial creativity and a massive extension in negligence liability. Freed from the need to fit cases within established categories, the judiciary was able to extend the frontiers of liability by reference to policy and the underlying goals of negligence law. However, the general theory ultimately reduced the efficacy of duty in its traditional gatekeeper role. Toward the end of the century, fears that the general theory of duty would lead to unlimited liability for economic loss and psychiatric illness, among other things, led the judiciary to return to a more cautious, incremental approach to the expansion of liability. This dissertation is organized chronologically, beginning around the mid-nineteenth century. It traces the main stages of duty’s evolution, explaining leading cases and doctrinal elements during each period. It places particular emphasis on Donoghue v. Stevenson, and illustrates how Lord Atkin’s masterful opinion helped to shape the development of duty for the remainder of the twentieth century. Underlying this study is an evaluation of the importance of judicial writing style to the doctrinal development of the law.EThOS - Electronic Theses Online ServiceGBUnited Kingdo