The 'Glorious Principle' of
negligence liability is presented in the relevant case as an application of the
ethic of reciprocity, cited here through the Christian filter of the Parable of
the Good Samaritan. It is suggested that this can be converted into legal
language by acknowledging the rule that we must take reasonable care to avoid
any action, or lack of action, that may produce foreseeable harm to others who
ought to be reasonably contemplated as being in the path of any harm that may
result from such action or inaction. Unfortunately, however, Lord Atkin's
derivation from the ethic of reciprocity is not logically sound. The concept of
negligence developed in the case suggests that we are liable to provide
compensation for behaviour that causes foreseeable harm, not that we have a
positive responsibility to help our neighbours when in need. In fact, the
courts have since largely rejected the Good Samaritan principle as a basis for
negligence. The moral concept of a duty of care seems, rather, to trace
back to Kant. Something may also be said about negligence as a tort being an
application of the social contract, which can establish the principle as an
extension of classical negligence. Proudhon's concept of a contract tying us to
each other directly is most applicable in context. In its most basic, however,
it is simply another restatement of the many diverse harm principles; it simply
states that we have an obligation to make an effort to not harm others.
LAWS 2202,
aug, 2012
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