Private Law Theory

ABSTRACT
It is now widely accepted that one issue to be examined when determining the existence of duty of care in the law of negligence is the vulnerability of the plaintiff. Naturally, this is supported by the idea that vulnerable plaintiffs deserve more protection than the less vulnerable. Thus, the doctrine is perceived to have the effect of protecting vulnerable people. This article argues that this is an illusion. Rather than expanding liability to protect the vulnerable, the vulnerability doctrine is more often used as a justification for contracting liability. Moreover, in cases where the vulnerability doctrine supports liability, that liability would exist even without the doctrine. The article further argues that in a well-functioning legal system, the vulnerability doctrine could play no role, as the vulnerable would already be properly protected.

Beever, Allan, Against Vulnerability (February 11, 2023), New Zealand Universities Law Review 30(3):341-358, 2023.