Goudkamp and Ihuoma, ‘A Tour of the Action in Negligence’

Abstract:
This article addresses the Court of Appeal’s recent decision in Dunnage v Randall. Dunnage is a landmark ruling. It has ramifications for virtually every facet of the tort of negligence, including defences thereto. In particular, it has a bearing on the objective standard of care and the concept of involuntariness. The decision is perhaps particularly significant in relation to the latter given that law on involuntariness in tort is not particularly well developed. Dunnage also raises numerous pressing theoretical issues that are of considerable significance, including the nature of the relationship between tort law and the criminal law. Understanding Dunnage requires a tour of the action in negligence. It is argued in this article that: (1) the decision in Dunnage is contrary to authority that was binding on the Court; (2) the justifications that the Court offered in support of imposing a strict objective standard were inadequate; (3) the Court offered no compelling reason for excluding a lack of rational control from the scope of the involuntariness exception from liability; (4) that it was left unclear how the involuntariness exception operates within the structure of the action in negligence; and (5) that the Court missed a rare opportunity to consider whether a defence of insanity should be welcomed into tort law.

Goudkamp, James and Ihuoma, Melody, A Tour of the Action in Negligence (2016).  (2016) Professional Negligence (forthcoming).

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