a defendant owed any duty to a plaintiff) and to examine what standard of conduct was required of the reasonable man..Towards the end of the century, some turned to examine whether there might be a single duty of care, which could encompass a range of different factual situations. It was not an area entirely devoid of learned literature: the notions of duty and the diligens homo had been explored in the natural law texts of Grotius, Pufendorf, Burlamaqui and Barbeyrac, which were available in English translations.69Yet an examination of the case law shows that nineteenth-century judges who developed the law of torts did not make reference to these writers; and even the general terminology of culpa played a minor role in forensic argument.70 Instead, these questions were developed as judges explored what kinds of duties defendants were under in particular fact-situations, and what kind of conduct had caused harm. It was in the courtroom, and not in the schoolroom, that these concepts were developed. In the mid-nineteenth century, judges focused on recognizing particular duties, as a means of anchoring negligence liability, by limiting it to categories of conduct already regulated by the common law. By the later part of the century, some judges and jurists attempted to expand the duty of care more broadly, to embrace a general duty of care.71 The main judicial exponent of this view wasW.B. Brett.72 Its main juristic exponent was Frederick Pollock, whose views were strongly influenced by the theory of Oliver Wendell Holmes.73 These men did not draw their theory from the learned law. Brett’s view was informed in no small part by his own personal vision of morality.74 Pollock and m i cha e l lob ban 155 69 Ibbetson, Historical Introduction, p. 166, noting that these writers were “particularly influential in [eighteenth-century] England.” 70 Only occasionally did judges use the terminology of culpa found in Roman law in negligence cases: see e.g., Godefroy v. Dalton (1830) 6 Bing. 460 at 467-8; Grocers’ Company v. Donne (1836) 3 Bing. N.C. 34 at 38, In re Hall and Hinds (1841) 2 M. & G. 847 at 852. 71 I explore these developments in some detail in Cornish et al, Oxford History, vol. XII, pp. 903-57. See also the discussion in M. Lobban, ‘Common Law Reasoning and the Foundations of Modern Private Law,’ Australian Journal of Legal Philosophy 32 (2007), pp. 39-66. 72 See esp. Heaven v. Pender (1883) 11 QBD503 (CA) at 509. 73 F. Pollock, The Law ofTorts: aTreatise on the Principles of Obligations arising from Civil Wrongs in the Common Law(London, 1887);O.W. Holmes, The Common Law(Boston, 1881). 74 His judgment in Heaven v. Pender was given before Pollock had written his treatise; though after the publication of Holmes’s work.
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