Publication Type

Journal Article

Publication Date

5-2017

Abstract

This paper examines the relationship between statutory duties and the common law duty of care in the tort of negligence. There are apparently divergent judicial statements on the general approach towards duty of care to be owed by persons under a statutory duty. One central question arises: should the courts treat the common law duty of care as subsisting generally unless it is excluded by the statute or must the plaintiff show that the Parliament intended to confer a private right of action or impose a common law duty? This paper argues that the two approaches may be properly accommodated within the two-stage duty of care test in Anns v Merton London Borough Council which has been applied in Canada, New Zealand and Singapore. It further discusses how statutory duties may impact on the specific elements (proximity and policy considerations) within the Anns framework. The analysis will promote greater legal coherence in this complex area of tort law and thereby assist courts to better tailor their decisions in a more consistent and principled manner.

Keywords

Tort, Negligence, Duty of Care

Discipline

Common Law

Research Areas

Law, Society and Governance

Publication

Tort Law Review

Volume

24

First Page

14

Last Page

33

ISSN

1039-3285

Publisher

Thomson Reuters (Professional)

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Additional URL

1

Included in

Common Law Commons

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