Twenty years ago, Professor Jack Beatson attacked what he termed the ‘oil and water’ approach to the relationship between common law and statute, which sees them as separate sources of law which do not intermingle. But as he said: ‘Why should statutory manifestations of principle … not be part of the armoury of the common law judge in determining a hard case and seeking to determine what best fits the fundamental principles of the legal system?’ This article pursues Jack Beatson’s theme in the context of the law of tort. It will explore how the existence and scope of a duty of care in common law is informed by statute. This includes examining how duty of care analysis may be bound up with considerations of public policy. Public policy is a contested field. Where can judges look for guidance on public policy to legitimise the way in which it is prayed in aid by the courts in their reasoning? Statutes are an important source of guidance on public policy and so are capable of informing the courts’ approach to duty of care questions at common law …
€ (Westlaw)
Philip Sales, ‘Exploring the interface between the common law of tort and statute law’ [2024] Journal of Personal Injury Law (1) 3.
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