ABSTRACT
Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of a dog’s breakfast. This is compounded by the fact that tort law has become the poster-child for a general shift in law away from traditional legal reasoning to a more openly acknowledged policy analysis. This is no bad thing. But the problem is that there exist multi-dimensional and multi-located doctrinal occasions for such policy work. This does not lend itself to a doctrinal product that is either readily accessible or easily understandable. As such, the time is ripe for transforming, if not revolutionizing negligence law. This essay seeks to engage in such a transformative analysis and prescription.
Allan C Hutchinson, The Next Revolution? Negligence Law for the 21st Century (2023) 46:2 Dalhousie Law Journal 575. Online 12 May 2023.
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