4. Defining Negligence

The ‘fault’ element of the tort of negligence contrasts sharply with the French conception of la faute délictuelle in a number of important ways and for a number of reasons: first, the concepts of faute and ‘negligence’ have different functions in their respective systems of substantive law; secondly, the decision making of English courts is elaborately structured by the law in contrast to the relatively unstructured ‘assessments’ made by the juges du fond; and thirdly, the procedural contexts of judicial decision making in the two systems are profoundly different.

(A) Negligence as a lack of reasonable care

The English understanding of the concept of ‘negligence’ pre-dates the emergence in the latter half of the nineteenth century of a recognisably distinct tort of negligence, but the modern approach which became established in the 1950s reflects long-gone arguments as to the division of functions between judge and jury, borrowings from American law, and a general intellectual tendency of seeking to structure the judicial discretion created by broad and open-textured concepts. The historical development of the English understanding of negligence also shows that it flirted with but then resolutely rejected the idea that the breach of any legal duty in itself constitutes negligence so as to give rise to liability, a rejection which contrasts sharply with French acceptance that any breach of a duty itself constitutes une faute.⁶⁹

In contrast to French law,⁷⁰ English law’s starting point was the concept of negligence rather than the concept of fault, and it is negligence which has been the subject of definition and elucidation. In my view, it is for this reason (as well as for reasons of intellectual taste) that many English lawyers have not been as concerned to see a personal, moral fault as the basis for liability in the tort of negligence as French lawyers have been with regards to la faute. Of course, one does see in English and particularly older discussions of liability for negligence reference to the ‘fault’ of the defendant, sometimes in overtly moralising terms.⁷¹ But while it could be simply asserted that a (p.187) failure to come up to the law’s objective standard is in some sense a fault, it is generally acknowledged that there is no personal moral failure involved where a person does all that he or she is able to do and yet falls short of an externally set standard.⁷² And for many writers, the justification of setting the standard of liability at ‘negligence’ does not lie in a moral judgment of the behaviour of the defendant, but rather in a balance between the interests of claimant’s to compensation and defendants to liberty and initiative, or, conversely, in the deterrence of unreasonably unsafe conduct.⁷³ If one were to need to choose a moral basis for the modern tort of negligence it would have to lie in some sort of rough and ready utilitarianism (perhaps sometimes qualified to take into account the importance of individual rights), rather than in a moral credo which sees the defendant’s failure as a moral wrong. If there is a traditional morality of the English law of torts, it is that of Bentham, rather than as in French law of Aquinas or Kant.⁷⁴

The scene was set for the legal definition of negligence in 1837 in Vaughan v Menlove, where the defendant’s hayrick spontaneously ignited and the fire spread to the closely neighbouring cottages owned by the plaintiff⁷⁵ The judge at trial had put to the jury the question whether the defendant had committed a ‘gross negligence’, a concept familiar to English lawyers from the law of bailment which distinguished between dolus, culpa lata and culpa levissima in emulation of the Roman law of contract.⁷⁶ However, Tindal CJ rejected the need for such a special fault on the facts:⁷⁷ the standard of behaviour for negligence ought not to be ‘co-extensive with the judgment of the individual’, as the law requires ‘in all cases a regard to caution such as a man of ordinary prudence would observe’.⁷⁸ So English law drew on the bonus paterfamilias of the Roman law of contract in order to create its objective conception of negligence developed for the purposes of liability in tort.⁷⁹