ABSTRACT
In this chapter, we conclude that the analysis of cases from three common law jurisdictions reveals that the untaken precaution approach is quite widespread. Regarding the implications of determination of negligence according to one conceptualization on that of the other, one can say that under certain conditions, even when the untaken precaution approach is used we can infer negligence or otherwise with respect to the due care approach. Therefore, cases can be identified in which the untaken precaution approach is used and the question of efficiency is not indeterminate. Further, cases have been identified where one party is nonnegligent by the due care approach and the nonnegligent party is declared negligent by the untaken precaution approach; in these cases, we can unambiguously say that the court decision would be inefficient. When both the parties are negligent by the due care approach, they would be negligent by the untaken precaution approach as well. The extent of negligence would, however, depend on whether negligence is construed in terms of the due care approach or the untaken precaution approach. This would be significant in case of rules that require apportionment of liability, like in cases of comparative negligence.
