Rediscovering the Law of NegligenceRediscovering the Law of Negligence offers a systematic and theoretical exploration of the law of negligence. Its aim is to re-establish the notion that thinking about the law ought to and can proceed on the basis of principle. As such, it is opposed to the prevalent modern view that the various aspects of the law are and must be based on individual policy decisions and that the task of the judge or commentator is to shape the law in terms of the relevant policies as she sees them. The book, then, is an attempt to re-establish the law of negligence as a body of law rather than as a branch of politics. The book argues that the law of negligence is best understood in terms of a relatively small set of principles enunciated in a small number of leading cases. It further argues that these principles are themselves best seen in terms of an aspect of morality called corrective justice which, when applied to the most important aspects of the law of negligence reveals that the law - even as it now exists - possesses a far greater degree of conceptual unity than is commonly thought. Using this method the author is able to examine familiar aspects of the law of negligence such as the standard of care; the duty of care; remoteness; misfeasance; economic loss; negligent misrepresentation; the liability of public bodies; wrongful conception; nervous shock; the defences of contributory negligence, voluntary assumption of risk, and illegality; causation; and issues concerning proof, to show that when the principles are applied and the idea of corrective justice is properly understood then the law appears both systematic and conceptually satisfactory. The upshot is a rediscovery of the law of negligence. |
Contents
Concluding Remarks | |
The Objective Standard | |
Strict Liability and Corrective Justice | |
Duty and Remoteness | |
Modern Approaches to the Duty of Care | |
A New Approach? | |
Negligent Misrepresentation and the Private | |
The Right of Spring | |
Defences | |
The Standard of Care | |
Illegality | |
Wrongful Birth Wrongful Conception and Nervous Shock | |
Causation | |
Proof and Uncertainty | |
6 | |
The Distinction between Misfeasance and Nonfeasance | |
7 | |
Negligent Misrepresentation and Assumption of Responsibility | |
Loss of a Chance | |
Conclusion | |
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Common terms and phrases
Accordingly Anns test apply argued argument assumption of responsibility bodily integrity Bolton v Stone Cardozo CJ cause of action Chapter child claim claimant’s injury claimant’s rights common law contract corrective justice created an unreasonable damage decision defendant defendant’s employees defendant’s negligence Denning LJ distributive justice Donoghue v Stevenson driving duty duty of care economic loss fact harm Hedley Byrne Hence House of Lords Ibid incremental approach indeterminate liability issue judges judgment law of negligence Law of Torts Law Review law’s Lord Atkin Lord Denning Lord Reid Lordships Moreover negligent misrepresentation NZLR obligations one’s owed Oxford plaintiff position primary right principled approach Private Law proximity question reasonably foreseeable recognised recover recovery relationship relevant reliance rescue rule Stapleton thin skull rule third party Tort Law University Press unreasonable risk violated Wagon Mound Weinrib White v Jones wrong Zealand