James Goudkamp

The Failure of Universal Theories of Tort Law

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinribs corrective justice theory, Robert Stevenss rights theory, and Richard Posners economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

Defences in Tort and Crime

© Cambridge University Press 2014. Tort law and the criminal law are often considered to be profoundly distinct branches of the law. For example, Jules Coleman contends that ‘[t]he differences between torts and the criminal law are so fundamental that the net result of applying one’s understanding of the criminal law to torts is bad philosophy and total confusion’. While this may be something of an exaggeration, there is no doubt that there are many significant differences between tort and crime. Some of these differences have been explored in detail. For example, careful thought has been given to the fact that the criminal law pays far greater attention to mental states than tort law, to the fact that only the criminal law provides for liability for attempts and to the fact that tort law and the criminal law place different emphasis on the importance of retribution and compensation. However, one respect in which tort law and the criminal law part company that has received virtually no scholarly attention concerns defences. Hence, the goal of this chapter is to explore several ways in which the defence regimes of tort law and the criminal law are distinct from each other. Two preliminary points need to be made at the outset about the way in which the examination will proceed. First, the analysis will not be concerned with differences in the fine details between specific criminal law and tort law defences, such as with the different way in which the tort and criminal law versions of the defence of self-defence respond to unreasonable mistakes by the defendant as to the need for defensive force. Rather, this chapter will focus on the more fundamental question of whether major types of criminal law defences are also recognised by tort law and vice versa. The second preliminary point concerns the meaning of the word ‘defence’. Untold confusion has been nourished by the incautious use of that word and it is important, therefore, to be clear about how it will be used in this chapter.

Vicarious liability in Australia: on the move?

ABSTRACT The recent decision of the High Court of Australia in Prince Alfred College v ADC is a landmark case in the law of vicarious liability. It is the first time in almost 14 years that the High Court has grappled in earnest with the second stage of the test for vicarious liability. This note observes that Prince Alfred College charts a far more restrictive course for the vicarious liability doctrine than has been followed by UK courts. It examines the different trajectories of the law in Australia and the UK and explores possible reasons for this difference.

BREACH OF DUTY: A DISAPPEARING ELEMENT OF THE ACTION IN NEGLIGENCE?

All causes of action in tort, like all causes of action generally, are constituted by elements or ingredients. It is often the case that these elements are not crisply separated from each other. That is certainly so in relation to the cause of action in negligence, it having regularly been pointed out that none of its elements is self-contained. Denning L.J. took that view further than most. In Roe v Minister of Health [1954] 2 Q.B. 66, 86, he asserted: “you will find that the three questions, duty, causation, and remoteness, run continually into one another. It seems that they are simply three different ways of looking at one and the same problem.” More commonly it is accepted that although the various elements of the tort of negligence overlap, they nonetheless retain separate identities. Thus, determining whether the tort of negligence has been committed is not generally understood as requiring a single homogeneous enquiry but an analysis whereby one examines each element of the action seriatim in order to determine whether it is present. This conventional understanding was embraced by Lord Simons, delivering the advice of the Privy Council in Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. [1961] A.C. 388, 425, when he said: “It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a breach of duty owed by him to the defendant, a breach of that duty by the defendant, and consequent damage.”

Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions

In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions at which we looked were: how often a defendants plea of contributory negligence was successful; and by how much a claimants damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimants age; the claimants gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrines operation.

THE DEFENCE OF ILLEGALITY IN TORT LAW: BEYOND JUDICIAL REDEMPTION?

IN Hounga v Allen [2014] UKSC 47; [2014] W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

The Defence of Illegality in Tort Law: Wither the Rule in Pitts v Hunt?

There are at least four types of actions in tort to which the defence of illegality might be relevant. First, there are cases in which the loss about which the claimant complains is a criminal law sanction imposed upon him (e.g., Clunis v Camden and Islington HA [1998] Q.B. 978). Secondly, there are actions in which the claimant seeks redress in respect of lost illegal earnings (e.g., Hewison v Meridian Shipping Pte Ltd [2002] EWCA Civ 1821, [2003] I.C.R. 766). Thirdly, there are proceedings in which the claimant, when he was injured, was committing a criminal offence unilaterally, that is, an offence in which the defendant was not implicated (e.g., Vellino v CC of Greater Manchester [2001] EWCA Civ 1249, [2002] 1 W.L.R. 218). Lastly, and most importantly as a practical matter, there are cases in which the parties were engaged in a joint illegal enterprise when the claimant was hurt.

Negligence and Defendants with Special Skills

Discussions of the objective standard of care in the criminal law tend to focus on its treatment of incompetent defendants. Relatively little has been said about its application to defendants who are especially capable. This focus is understandable. For one thing, the incompetent are much more likely to fall short of this standard than the gifted. Another reason for this focus is that it is a greater philosophical challenge to justify holding the incompetent to the objective standard than those who have the capacity to meet it.

Bad character evidence and reprehensible behaviour

The Criminal Justice Act 2003 ushered in a new system for determining the admissibility of bad character evidence in criminal proceedings. Unfortunately, this system is riddled with anomalies and plagued by obscurity. These problems contaminate its core as it is unclear what constitutes ‘bad character’ evidence. This uncertainty is in large part due to the fact that the Act offers little clue as to the meaning of the words ‘reprehensible behaviour’, evidence of which is ‘bad character’ evidence. Accordingly, this article asks whether the decisions in which the expression ‘reprehensible behaviour’ has fallen for consideration shed light on its content. It is concluded that the authorities offer scant guidance and have introduced several difficulties.