The Negligence Plus Model

As many proponents of the negligence model recognise, the negligence plus version of that model is a non-starter. This is because, in the presence of a genu­ine assumption of responsibility, the remainder of the negligence model is otiose.

If the defendant genuinely assumed responsibility to the plaintiff but then failed to live up to that responsibility, the assumption itself must be sufficient for liability. It merely wastes time and confuses the pertinent issues to examine the elements of the negligence enquiry such as the duty of care. In short then, the negligence plus model is conceptually unstable, because the plus renders the neg­ligence redundant. In this way, this version of the negligence model collapses into the contract model.

Conversely, if we deny that a defendant needs genuinely to assume respon­sibility in order to be liable under Hedley Byrne, then we are not really dealing with the negligence plus model. This is the ordinary negligence model in dis­guise, where use of the notion of an assumption of responsibility is occluding the real basis of the liability. This helps to explain why many proponents of the negligence model are so hostile to the employment of the concept of assump­tion of responsibility in this context.^[484] It is the ordinary negligence model that deserves our attention.

IV.