[T]he
judicial development of the law of negligence rightly proceeds by
seeking first to identify the relevant characteristics that are
common to the kinds of conduct and relationship between the parties
which are involved in the case for decision and the kinds of conduct
and relationships which have been held in previous decisions of
the courts to give rise to a duty of care.
The
method adopted at this stage of the process is analytical and
inductive. It starts with an analysis of the characteristics of
the conduct and relationship involved in each of the decided cases.
But the analyst must know what he is looking for, and this involves
his approaching his analysis with some general conception of conduct
and relationships which ought to give rise to a duty of care.
This analysis leads to a proposition which can be stated in the
form:
'In
all the decisions that have been analysed a duty of care has been
held to exist wherever the conduct and the relationship possessed
each of the characteristics A, B, C, D, etc., and has not so far
been found to exist when any of these characteristics were absent.'
For
the second stage, which is deductive and analytical, that proposition
is converted to: 'In all cases where the conduct and relationship
possess each of the characteristics A, B, C, D, etc., a duty of
care arises.' The conduct and relationship involved in the case
for decision is then analysed to ascertain whether they possess
each of these characteristics. If they do the conclusion follows
that a duty of care does arise in the case for decision.
But
since ex hypothesi the kind of case which we are now considering
offers a choice whether or not to extend the kinds of conduct
or relationships which give rise to a duty of care, the conduct
or relationship which is involved in it will lack at least one
of the characteristics A, B, C or D, etc. And the choice is exercised
by making a policy decision as to whether or not a duty of care
ought to exist if the characteristic which is lacking were absent
or redefined in terms broad enough to include the case under consideration.
The policy decision will be influenced by the same general conception
of what ought to give rise to a duty of care as. was used in approaching
the analysis. The choice to extend is given effect to by redefining
the characteristics in more general terms so as to exclude the
necessity to conform to limitations imposed by the former definition
which are considered to be inessential.
