“Simplicity is a neglected legal virtue, perhaps because achieving it can be very hard. It is often easier to pile on complexity than to sit back and try to pare the analysis that is required back to its bare bones. And it needs to be remembered that sometimes the simplest solution may involve a degree of complexity. For example, breaking an enquiry down into many different parts may result in a more straightforward analysis than trying to make do with fewer concepts. The law of negligence is instructive in this respect. The tendency here has been to try to distil the essence of the cause of action into three or four ‘elements’, but this can be done only by conflating different questions under the same heading, such as ‘scope of liability’ (conflating legal causation and remoteness) or ‘resultant damage’ (conflating damage and factual causation, and sometimes more). However, the greatest risk to simplicity in negligence is posed by the peculiarly common law device of the ‘duty of care’ …”
€
Donal Nolan and James Plunkett, ‘Keeping negligence simple’ (2022) 138 Law Quarterly Review (April issue) 175.
First posted 2022-03-02 11:00:19
Leave a Reply