“The development of the law of negligence has been by an incremental process rather
than giant steps. The established method of the court involves examining the decided
cases to see how far the law has gone and where it has refrained from going. From
that analysis it looks to see whether there is an argument by analogy for extending
liability to a new situation, or whether an earlier limitation is no longer logically or
socially justifiable. In doing so it pays regard to the need for overall coherence. Often
there will be a mixture of policy considerations to take into account.”
Michael v Chief Constable of South Wales [2015] UKSC 2, per Lord Toulson, 27.
Critically evaluate the above proposition, with reference to relevant case law.
1,250 words max, excluding footnotes and bibliography
In Michael v Chief Constable of South Wales Police, Lord Toulson describes negligence
law’s evolution as comprising three elements: (1) “an incremental process rather than giant
steps”1, meaning courts develop the law gradually through analysis of familiar cases rather
than arbitrary decision; (2) an “established method of the court”2, “established” meaning a
habitual, recognised judicial approach; and (3) assessing whether earlier limits remain
“logically or socially justifiable”3, assuming that new verdicts align with logic and social
expectations. This essay supports Toulson’s view that negligence law is (primarily)
incremental, yet it simultaneously acknowledges that “giant steps”4 do occur, notably in
Donoghue v Stevenson and Anns v Merton, which challenges his claim that incrementalism
is wholly “established”5. Nevertheless, the retracement or refinement of such verdicts (as in
Caparo v Dickman) reinforces the incrementalist trajectory. Toulson’s view that laws are in
accordance with logic is arguably stronger than his emphasis on social justification, as
illustrated in Bolitho v City and Hackney HA and Toulson’s own decision in Michael. Using
two criteria (‘consistency with past decisions’ and the ‘longevity of the law’), this essay will
demonstrate that, although “giant steps”6 have occurred in negligence law, the overarching
pattern confirms Toulson’s claim that the law evolves logically and incrementally.
To assess whether negligence law truly evolves incrementally, this essay adopts the
definition of incrementalism as a “case-by-case”7development, whereby newer judgments
refine or build upon established precedents. Having established this, it is crucial to
demonstrate how successive cases rely on prior decisions to adjust the law, demonstrating a
methodological progression consistent with an incrementalist approach. Toulson’s reasoning
in Michael v Chief Constable of South Wales exemplifies the incremental method in action.
Rather than creating a new duty of care, he relied on a “well-established line of authority
dating back to Hill v Chief Constable of West Yorkshire”8, which precluded liability for police
omissions. This reliance on precedent satisfies the first criterion, ‘consistency with past
decisions’, as the court reaffirmed existing judgments instead of taking a “giant step”9 (an
irrational or arbitrary judgment), suggesting an incremental approach. Toulson’s
1
Michael v Chief Constable of South Wales Police [2015]
2
Ibid
3
Ibid
4
Ibid
5
Ibid
6
Ibid
7
Madden, S., (2005) Exploring tort law, Cambridge: Cambridge University Press
8
Michael v Chief Constable of South Wales Police [2015]
9
Ibid
than giant steps. The established method of the court involves examining the decided
cases to see how far the law has gone and where it has refrained from going. From
that analysis it looks to see whether there is an argument by analogy for extending
liability to a new situation, or whether an earlier limitation is no longer logically or
socially justifiable. In doing so it pays regard to the need for overall coherence. Often
there will be a mixture of policy considerations to take into account.”
Michael v Chief Constable of South Wales [2015] UKSC 2, per Lord Toulson, 27.
Critically evaluate the above proposition, with reference to relevant case law.
1,250 words max, excluding footnotes and bibliography
In Michael v Chief Constable of South Wales Police, Lord Toulson describes negligence
law’s evolution as comprising three elements: (1) “an incremental process rather than giant
steps”1, meaning courts develop the law gradually through analysis of familiar cases rather
than arbitrary decision; (2) an “established method of the court”2, “established” meaning a
habitual, recognised judicial approach; and (3) assessing whether earlier limits remain
“logically or socially justifiable”3, assuming that new verdicts align with logic and social
expectations. This essay supports Toulson’s view that negligence law is (primarily)
incremental, yet it simultaneously acknowledges that “giant steps”4 do occur, notably in
Donoghue v Stevenson and Anns v Merton, which challenges his claim that incrementalism
is wholly “established”5. Nevertheless, the retracement or refinement of such verdicts (as in
Caparo v Dickman) reinforces the incrementalist trajectory. Toulson’s view that laws are in
accordance with logic is arguably stronger than his emphasis on social justification, as
illustrated in Bolitho v City and Hackney HA and Toulson’s own decision in Michael. Using
two criteria (‘consistency with past decisions’ and the ‘longevity of the law’), this essay will
demonstrate that, although “giant steps”6 have occurred in negligence law, the overarching
pattern confirms Toulson’s claim that the law evolves logically and incrementally.
To assess whether negligence law truly evolves incrementally, this essay adopts the
definition of incrementalism as a “case-by-case”7development, whereby newer judgments
refine or build upon established precedents. Having established this, it is crucial to
demonstrate how successive cases rely on prior decisions to adjust the law, demonstrating a
methodological progression consistent with an incrementalist approach. Toulson’s reasoning
in Michael v Chief Constable of South Wales exemplifies the incremental method in action.
Rather than creating a new duty of care, he relied on a “well-established line of authority
dating back to Hill v Chief Constable of West Yorkshire”8, which precluded liability for police
omissions. This reliance on precedent satisfies the first criterion, ‘consistency with past
decisions’, as the court reaffirmed existing judgments instead of taking a “giant step”9 (an
irrational or arbitrary judgment), suggesting an incremental approach. Toulson’s
1
Michael v Chief Constable of South Wales Police [2015]
2
Ibid
3
Ibid
4
Ibid
5
Ibid
6
Ibid
7
Madden, S., (2005) Exploring tort law, Cambridge: Cambridge University Press
8
Michael v Chief Constable of South Wales Police [2015]
9
Ibid
