Models of Negligence – The Debate in Israel’s Supreme Court

Abstract

AbstractA model of negligence in common law jurisdictions is a conceptual structure that basically seeks to align the three legal concepts used by courts to administer negligence law with the three substantive elements that constitute, justify and limit negligence liability. The three legal concepts are carelessness, legal causation (assuming factual causation) and duty. The three substantive elements are undesirable conduct, a sufficient link between this conduct and harm, and the desirability of liability. Another major task of a model of negligence is to explain the role and meaning of the foreseeability requirement in each concept and element of liability. The traditional model of negligence, identified with the sequence duty-breach-causation, is characterised by the double role that is assigns to the duty concept. This concept is aligned both with the element of undesirable conduct (conduct is undesirable only when breaching a pre-existing duty), and with the element of desirable liability (liability is desirable only where policy considerations justify a finding of a duty to compensate). Being a servant of two masters, the duty concept is the major source of the confusion and ambiguities that have plagued negligence law for generations. Against this background the traditional model was challenged in 2013 in Israel’s Supreme Court by a Justice who embraced an alternative model formerly suggested by the author. The essence of this new model is to align the duty concept only with the element of desirable liability, severing it from the element of undesirable conduct. Such change arguably disperses confusion and ambiguities, and clarifies the roles and meaning of the foreseeability requirement. In 2014, however, another Justice challenged the new model and called for the reinstatement of the traditional model in a different version. This paper explains why the new 2013 model is preferable to the traditional model in all relevant aspects. The analysis sheds new light on the notions of proximity, special relations, reliance, assumption of responsibility and prima-facie duty. The analysis also serves as a comparative perspective on fault-based liability in continental European jurisdictions.