A Historical Introduction to the Law of Obligations

However much the nineteenth-century tort of negligence could be expressed in terms of abstract general principles, as a matter of practical reality it was thoroughly fragmented. In the twentieth century, practice moved in the direction of theory as the tendency towards fragmentation was reversed.¹ Detailed duties of care were superseded by a single duty of care. The component parts of the tort--duty, breach, remoteness--increasingly merged into each other. Moreover, it no longer seemed self-evident that there should be a link between legal liability and wrongdoing, with the result that the idea of negligence as the failure to take the care that would have been taken by a reasonable man began to degenerate back into an undifferentiated notion of blameworthiness.

The characteristic structure of the tort of negligence as it developed in the nineteenth century was largely the result of the tension between judge and jury. The near-total disappearance of the civil jury by the middle of the twentieth century resolved this tension, and with it broke down the fragmentary nature of the tort.

The disappearance of the jury occurred in three stages. First of all, the County Courts Acts provided that trial would be without jury in small cases, and might be without jury in other cases within the jurisdiction of the court (though either party had a right to demand a jury). In practice, jury trials in County Courts were very uncommon in any form of action, including negligence actions; they were abolished in 1934.² Secondly, the Common Law Procedure Act of 1854 allowed that the parties might elect not to go to jury trial; and after the Judicature Acts of 1873-5 it was possible for some negligence cases to be assigned to the Chancery Division

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