Responsibility in Negligence: Why the Duty of Care is not a Duty “To Try”

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My goal was to maintain the postulate that negligence assumes responsibility while critiquing the account of the duty of care as a duty to try. As a product of this critique I concluded that although it offers a promising account of the 'responsibility component' in the standard of negligence, the idea of the duty of care as a duty to try is both descriptively and doctrinally wrong as well as prescriptively undesirable. I therefore endorsed a pure conduct-based account of the duty of care. This raised anew the question of where in the negligence standard lies the responsibility component accounting for the fact that negligence assumes responsibility. In response, I suggested a condition-based approach to the responsibility-component in negligence: the duty of care in negligence only applies where the circumstances are such that those subject to the duty are in a position and have the capacity to comply -- as agents -- with the conduct-based duty. In other words, to be subject to the conduct-based duty of care in negligence one must possess the capacity and the actual opportunity to willfully comply with the duty. Thus, the 'conditions' for being subject to the negligence standard (my proposed responsibility component) mostly parallel the conditions for moral responsibility. (edited)
Original languageEnglish
Pages (from-to)403-428
Number of pages26
JournalCanadian Journal of Law and Jurisprudence: An International Journal of Legal Thought
Issue number2
StatePublished - 1 Jul 2010


  • CARE
  • DUTY
  • HARM
  • LAW


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