Negligence and Interest
| Published date | 01 September 1954 |
| Date | 01 September 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00264.x |
| Author | E. Anthony Machin |
THE
MODERN
LAW
REVIEW
Volume
17
September
1954
No.
5
NEGLIGENCE
AND
INTEREST
THE purpose of this article is to suggest that the concept
of
the
duty of care in the tort of negligence requires analysis with reference
to the interest of the plaintiff of which invasion is alleged.
Not
only,
it
is suggested, must the plaintiff show that in the circum-
stances the defendant owed him a duty of care; he must show
further (but need show only) that the duty pertained to
a
specific
interest
of
his, being the specific interest damaged. The duty
“must be specifically due to the plaintiff and to some particular
interest
of
his.”
This analysis has not been developed,
so
far as
I
am aware, in
any English textbook nor does it appear greatly to have been dis-
cussed in legal-
periodical^.^
A
recent exception4 apart, the
possibility of making the analysis is not explicitly recognised in
the authorities. This is understandable,
for
the tort of negligence,
though growing apace, is yet young, and few cases have
so
far
come before the courts in which the approach suggested would have
made any difference.
It
is
interesting to note that the American
Restatement
frames a similar suggestion in these words
‘‘
Conduct may be negligent, because it involves an unreason-
able risk of invading one of a particular species of interests,
*
Lord Wright at p. 398
of
his article
’‘
Re Polemis
”
in 14 M.L.R. 393.
2
Including Beven on
Negligence,
4th ed.
;
Pollock,
Torts,
15th ed.
;
Salmond,
Torts,
11th ed.; Winfield,
Torts,
5tff ed.; Halsbury’s
Lams of
England
(Hailsham ed.),
sub
tit.
“Negligence. The problem is recognised in Clerk
and Lindsell
on
Torts,
10th ed., at p. 353, and
in
Charlesworth on
Negligence,
2nd ed., at pp.
14
and
17,
but there is no
full
discussion. Prosser,
Torts
f1941), at pp. 1874 shortly adverts,t,o the analysis here suggested but regards
it as an
“
unnecessary refinement having regard
to
the rules as to super-
seding causee.
Sed
quaem;
the most difficult problems are those not involving
superseding causee.
3
There are passing references in
14
M.L.R. at pp. 398 and 400 (Lord Wright)
and in
Essays
in
Jur?prudence
(Dr.
Goodhart), p. 149, note 65. Mr,.,
D.
J.
Payne, in his article (1959
Current Legal Problems)
appears to accept the limitation
of
duties
of
care
to
specifio interests as
I‘
implicit in the modern development
of
the law
of
negli-
genoe” (p. 199). Tilleg, in 33 Mich. Law Rev. pp. 847-51, also accepts the
limitation and
so
explains
Liesbosch
V.
Edison
[1933] A.C. 449.
:
The
‘
direct
’
consequences
of
a negligent act
4
King
v.
Phillips
[1953]
52
W.L.R. 526 (C.A.), the judgment
of
Denning
L.J.
5
Restatement,
Torte,, Negligence,
S.
281. Comment g.
405
VOL.
17
26
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