Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal
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Israel Gilead
Abstract
Over a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 SCC’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.
© 2019 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Frontmatter
- Articles
- Common Law Codification: Lessons and Warnings from Twenty-First Century Australia
- Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal
- No-fault Law on Medical Accidents in Belgium: An Evaluation after Six Years
- What’s in a Name? The Case for Protecting the Reputation of Businesses under Article 1 Protocol 1 of the European Convention on Human Rights
- Book Review
- Piotr Machnikowski (ed), European Product Liability: An Analysis of the State of the Art in the Era of New Technologies (Intersentia, Cambridge 2016). ix+705pp. ISBN 978-1-78068-398–0. $141.51 (paperback).
- Vanessa Wilcox, A Company’s Right to Damages for Non-pecuniary Loss (Cambridge University Press 2016). xxxiv + 192 pp. ISBN 9781107139275. £21.99 (hardback).
- J Le Bourg/C Quézel-Ambrunaz (eds), Sens et non-sens de la responsabilité civile (Université Savoie Mont Blanc 2018). 444 pp. ISBN 978-2-919732-88–3. € 30 (paperback).
Articles in the same Issue
- Frontmatter
- Frontmatter
- Articles
- Common Law Codification: Lessons and Warnings from Twenty-First Century Australia
- Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal
- No-fault Law on Medical Accidents in Belgium: An Evaluation after Six Years
- What’s in a Name? The Case for Protecting the Reputation of Businesses under Article 1 Protocol 1 of the European Convention on Human Rights
- Book Review
- Piotr Machnikowski (ed), European Product Liability: An Analysis of the State of the Art in the Era of New Technologies (Intersentia, Cambridge 2016). ix+705pp. ISBN 978-1-78068-398–0. $141.51 (paperback).
- Vanessa Wilcox, A Company’s Right to Damages for Non-pecuniary Loss (Cambridge University Press 2016). xxxiv + 192 pp. ISBN 9781107139275. £21.99 (hardback).
- J Le Bourg/C Quézel-Ambrunaz (eds), Sens et non-sens de la responsabilité civile (Université Savoie Mont Blanc 2018). 444 pp. ISBN 978-2-919732-88–3. € 30 (paperback).
