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129 L. Q. Rev. 559 (2013)
Deconstructing the Duty of Care

handle is hein.journals/lqr129 and id is 559 raw text is: DECONSTRUCTING THE DUTY OF CARE Donal Nolan* Porjes Foundation Fellow and Tutor in Law, Worcester College, University of Oxford I. Introduction The existence of what is termed a duty of care is generally regarded as a fundamental building block of the common law of negligence, a core ingredient' or foundational element2 of the cause of action. Furthermore, duty is commonly seen as the logical starting point of the negligence enquiry, analytically anterior to the other building blocks of fault (or breach of duty), damage, causation, remoteness and defences. When I studied tort as an undergraduate, for example, week one of the reading list was entitled simply Duty of Care, and most English tort textbooks begin their analysis of negligence with one or more chapters on duty. The orthodox perception of the duty of care as a central element of the negligence enquiry analytically anterior to the other elements is neatly summed up by the statement in one of those textbooks that Negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant. This duty orthodoxy is deeply ingrained in the mindset of common lawyers, and profoundly affects the way in which judges decide negligence cases, and lawyers more generally think about negligence law. Nevertheless, one of the functions of legal scholarship is to challenge such orthodoxies, in the hope that critical review may further understanding of the subject by exposing a wrong turning in our collective thinking about the law, and identifying a more fruitful way forward. In this article, I subject the duty orthodoxy to such critical review, and conclude that the duty of care concept is now obscuring understanding of negligence law and hindering its rational development. I therefore propose the deconstruction of duty, a process whereby the disparate issues currently subsumed under the duty umbrella are separated out and reclassified under the other components of the negligence enquiry. The duty orthodoxy has of course been challenged before. As long ago as 1934, P.H. Winfield said of the duty idea that in theory it might well be eliminated from the tort of negligence, for it got there only by a historical accident and it seems to be superfluous,4 and the same year the first US Restatement of Torts dispensed with duty in its Statement of the Elements of a Cause of Action for Negligence.5 Shortly afterwards the Roman lawyer W.W. Buckland launched a sustained attack on the duty of care, which he famously described as an .A version of this article was presented at the Obligations VI conference in London, Ontario in July 2012, and I am grateful to the participants for their comments. I am also grateful to James Goudkamp, Jason Neyers and James Plunkett for their observations on an earlier draft. The usual caveat applies. 1 W.V.H. Rogers, Winfield and Jolowicz on Tort, 18th edn (London: Sweet and Maxwell, 2010), at para.5-2. 2 David Owen, Duty Rules (2001) 54 Vand. L. Rev. 767 at 767-768. 3 Rogers, Winfield andJolowicz on Tort (2010), at para.5-1. 4 PH. Winfield, Duty in Tortious Negligence (1934) 34 Col. L. Rev. 41 at 66. 5 Restatement, Torts (1934) §281. See also Restatement, Second, Torts (1965) §281. (2013) 129 L.Q.R. October © 2013 Thomson Reuters (Professional) UK Limited and Contributors 559

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