laid down the tort of negligence based on a general duty of care in English
common law. In arguing that there should be such a duty of care, Lord Atkin
made the distinction between an underlying general legal principle and specific
statements of law emanating from it: “I content myself with pointing out that in
English law there must be, and is, some general conception of relations giving
rise to a duty of care, of which particular cases found in books are but
instances”.
125
In other words, particular instances of cases of negligence
bespoke the existence of a general rule about negligence. This is so because
“the duty which is common to all the cases where liability is established must
logically be based upon some element common to the cases where it is found
to exist”.
126
As Justice McHugh expressed it, the process involves the
“rationalisation of existing principle with a view to bringing more unity and
symmetry to the general law,”
127
as particular rules are gathered under an
“overarching principle”.
128
Arguing from General Rules to a General Prohibition on
Wrongs
The second possibility seeks to paint a legal picture on a bigger canvas. If
courts can reason from particular instances of a type of wrong to a general
concept of that wrong, can they also reason from the existence of specific
areas of law concerned with wrongs, namely tort and criminal law, to a general
moral prohibition on wrong doing? If this is possible, courts have some
justification for creating new torts and crimes as the need arises.
This is exactly what the House of Lord did, although amidst major
controversy, in the case of Shaw v DPP.
129
There the Lord created a new
common law offence of conspiring to corrupting public morals. Shaw had
___________________
125
Donoghue v Stevenson [1932] AC 562 at 580
126
Donoghue v Stevenson [1932] AC 562 at 580
127
McHugh (1999) p 41. Justice McHugh there cites three examples where the
High Court of Australia abolished some specific stand alone rules of liability by
integrating them into the general law of negligence. In Northern Sandblasting v
Harris
(1997) 188 CLR 313 the court did this with the liability of landlords, in
Burnie Port Authority v General Jones (1994) 179 CLR 520 the court so integrated the
well established rule imposed on adjoining land holders by Rylands v Fletcher
(1868) LR 3 HL 330, and in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
the court integrated the specific rules determining occupier’s liability.
128
McHugh (1999) p 41. This has occurred in relation to estoppel in
Commonwealth v Verwayen (1990) 170 CLR 394, unconscionability in Louth v Diprose
(1992) 175 CLR 621, unjust enrichment in David Securities v Commonwealth Bank of
Australia
(1992) 175 CLR 353 and determination of the scope of the phrase “the
course of employment” in Hatzimanolis v ANI Corporation (1992) 173 CLR 473.
129
Shaw v DPP [1962] AC 562
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