Deconstructing the Duty of Care

In this article, I subject to critical review the orthodoxy that the “duty of care” is an essential component of the common law of negligence. I argue that the duty of care concept is obscuring understanding of negligence law and hindering its rational development. I therefore propose the “deconstruction” of duty, a process whereby the disparate issues currently subsumed under the duty umbrella are separated out and reclassified under the other components of the negligence enquiry, namely fault, damage, causation, remoteness and defences. I also argue that scepticism about the duty of care is not incompatible with a rights-based approach to negligence law, and that deconstructing duty would improve the quality of judicial reasoning in negligence cases, give a sharper edge to scholarship in the field, and improve the understanding of those coming to negligence law for the first time.