International Journal of Law in Context

Articles

The vulnerable subject of negligence law

Carl F. Stychina1 c1*

a1 University of Reading

Abstract

The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it is dependent.

Footnotes

* I am extremely grateful to Tobias Lovett for his excellent research assistance, and to the University of Reading for funding it through its Undergraduate Research Opportunities Programme. Thanks also are due to the anonymous referees for their very helpful comments.