Donal Nolan

VARYING THE STANDARD OF CARE IN NEGLIGENCE

This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue, I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?

Negligence and Human Rights Law: The Case for Separate Development

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part, the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.

Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions

In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions at which we looked were: how often a defendants plea of contributory negligence was successful; and by how much a claimants damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimants age; the claimants gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrines operation.