영국의 過失不法行爲(Negligence)에서의 注意義務의 存否에 관한 판단기준

A Study on the Test of Duty of Care in English Commom Law

The Britisch courts did not recognise the existence of a general duty in tort imposing liability for careless behaviour across a range of situations and relationships until the 1930s. The turning point was the decision of the House of Lords in Donoghue v. Stevenson. Prior to this decision, legal liability for carelessness was clearly established only in a number of separate, specified situations, which lacked a unifying principle. A duty to take care was attached by law to certain traditional categories of status, as in the case of the duty owed to a customer by an innkeeper or common carrier, or the duty of an artisan to use the customary degree of skill and care in his work. In his judgment, Lord Atkin addressed in the question of how to formulate a ‘general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances , in the following terms: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. In Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd., decided in 1963, the House of Lords recognised for the first time the possibility of an action in the tort of negligence for financial loss suffered through reliance on a misstatement. In Dorset Yacht Co. v. Home Office Lord Reid commented of the neighbour principle, the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. This approach effectively appeared to be shifting on to defendants the onus of justifying the restriction of liability for economic loss and for omissions. It was confirmed by the House of Lords in Anns v. Merton London Borough Council. Two principal objections to a wide rule of recovery presented. First was the fear of indeterminate liability, or the prospect of releasing a large number of unmeritorious and potentially oppressive claims for compensation. Second there was concern that the traditional relationship between tort and contract was being disrupted, with adverse consequences for legal and commercial certainty. The turning point came with Murphy v. Brentwood District Council where a seven-judge House of Lords formally overruled Anns, invoking the 1966 Practice Statement in order to do so.