textbook, which is why it is said that common law is also found in the “writing
of lawyers”.
34
A textbook gathers rules that are scattered throughout a
multitude of cases and puts them rules together to form an ordered account of
the law. This is a great advantage because it tidies and shapes the law, thus
making it accessible and easier to understand.
To illustrate how a textbook tidies and shapes the law, consider the extract
above from the judgment of Lord Atkin in Donoghue v Stevenson.
35
Modern
textbooks that state the law of negligence obviously have the benefit of more
consideration and explanation of negligence from both judgments and legal
writing than did the court in Donoghue. Nevertheless, the components of
negligence as currently understood are largely found in the cited passage from
Lord Atkin.
There would, however, need to be one addition. Commonly there are defences
to a tort (or crime). These operate by exempting a defendant from liability or
guilt even though they have satisfied the positive elements of the wrong.
Ideally a texbook will describe a legal rule by dividing it into its ingredients or
elements as lawyers commonly call them.
36
A textbook account of negligence
formulated on these lines would describe negligence in a manner that would be
something like the account below. It is put in the form of a table here to
emphasise how elements provide an organising framework, whereas a text
writer would more likely not tabulate the material but set it out as plain text:
Element (1) Duty of Care
The defendant owes the plaintiff a duty of care. This duty is that you must
take “reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”.
37
This raises the question
of how ‘neighbour’ is defined. Neighbours are “persons who are so
closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question”.
38
In modern
terminology this is a test of forseeability. It means that a duty exists if I can
foresee that someone will be injured if I do not take care.
34
Hollis’ Hospital and Hague’s Contract [1899] 2 Ch 540 at 552, and see Cochrane v
Moore (1890) 25 QBD 57 at 74, per Lord Esher.
35
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
36
The method of organising law in order to describe it in a legal text is
explained in Chapter 3 Organising Law.
37
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
38
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
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