Jenny Steele

Tort law : text, cases, and materials

I. INTRODUCTORY 1. The shape of tort law today II. INTENTIONAL INTERFERENCES 2. Torts of intention III. THE TORT OF NEGLIGENCE 3. Essentials of negligence: establishing liability 4. Particular causation problems 5. Defences to negligence 6. Duty of care: applications IV. GENERAL MATTERS 7. Limitation and contribution 8. Damages, compensation, and responsibility 9. Vicarious liability and non-delegable duties V. NUISANCE AND DUTIES RELATING TO LAND 10. Nuisance 11. Rylands v Fletcher and strict liability 12. Liability for dangerous premises VI. DEFAMATION AND PRIVACY 13. Defamation 14. Privacy VII. STRICTER LIABILITIES 15. Product liability 16. Breach of statutory duty 17. Trespass to land and goods, and conversion

Insurance and the Law of Obligations

It is widely acknowledged that insurance has a major impact on the operation of tort and contract law regimes in practice, yet there is little sustained analysis of their interaction. The majority of academic private lawyers have little knowledge of insurance law in its own right, and the amount of discussion directed to insurance in private law theory is disproportionately small in relation to its practical importance. Filling this substantial gap in the literature, this book explores the multiple influences of insurance in the law of obligations, and the nature and impact of insurance law as an inherent and significant aspect of private law. It combines conceptual and doctrinal analysis, informing the theoretical discussion of the nature of private law, including the role of judicial and public purpose, and the place of formalism and of contextualism in normative theories of private law. Arguing for the wider recognition of the multiple impacts of insurance, the book claims that recognition of the presence of insurance necessarily marks a departure from the two-party framework sometimes described as definitive of private law. The structured exploration and interpretation of the contemporary role of insurance in the law of obligations, and of its implications, illuminates this under-explored area of private law, and equips the reader for further enquiry and debate.

DAMAGES IN TORT AND UNDER THE HUMAN RIGHTS ACT: REMEDIAL OR FUNCTIONAL SEPARATION?

Since the creation of a new domestic action for violation of “Convention rights” under the Human Rights Act 1998 (“HRA”),

Free Trade: What is it Good for? Globalization, Deregulation, and 'Public Opinion'

Deliberation is an essential element in legitimate and sound decision making. The deliberative ideal has much resonance with ideas of ‘localization’, employing the value of local and applied knowledge. Participation is also of particular value under globalization. We argue that the capacity of the World Trade Organization (WTO) to absorb and reflect participatory aspects of decision making is crucial to its future legitimacy and status. Should the WTO be seen as one of the darker forces of globalization? Or as an emerging institution of global accountability? The latter depends upon recognition that the potential deregulatory effect of the WTO is contingent, and that the liberalization of international trade should enhance welfare, rather than be a goal in its own right. Deliberative solutions require a strong public sphere, and we therefore consider whether solutions based on ‘empowered consumer choice’, rather than public deliberation, are unsatisfactory responses to the deregulatory impact of international trade disputes and their outcomes.

Scepticism and the Law of Negligence

The law of negligence invites scepticism, and it has attracted it from many sources. A brief survey of the torts problems will indicate how broad the reasons to be sceptical have become—and how unusually broad the sources of that scepticism are.

DRIFTING TOWARDS PROPORTIONATE LIABILITY: ETHICS AND PRAGMATICS

This article investigates an apparent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers. This shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is in no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

Insurance between Neighbours: Stannard v Gore and Common Law Liability for Fire

Liability under Rylands v Fletcher has since its inception been justified by ideas of risk-creation and loss-spreading, in circumstances where parties are free from blame. Pollock described it as amounting to an ‘insurance’ between neighbours; in its contrast with negligence liability, it has more recently been described as the ‘conscience’ of the law. Here we are concerned with the nature and limited existence of Rylands liability for damage done by the escape of fire after the Court of Appeal’s decision in Stannard v Gore. How does ‘insurance’ through liability compare with the well-recognised and widespread practice in relation to fire, of insuring oneself? We particularly discuss the possible purposes of the long disembodied section 86 of the Fires Prevention (Metropolis) Act 1774, the significance of insurance in that statute, and the importance of rival interpretations of its applicability to Rylands liability. We identify the current difficulties in this area of law as lying in the elusiveness of the social purposes which have shaped its principles, suggesting that any justification of Rylands liability for fire should indeed take account of the long-established practice of first party insurance.

Satisfying Claims? Money, Tort, and ‘Consumer Society’

Tort law has been a favoured location for jurisprudential contests between principled and sceptical accounts of legal evolution, and it has even been regarded – for example, by Simon (1988) – as providing an obvious example of the decline of principle and growth of pragmatic reasoning. But beyond court-focused analyses of these sorts, the social significance of tort can appear limited: functional or policy-based analyses of tort typically lead into a blind alley, suggesting that much of tort law should be, or in reality has been, replaced. The fate of tort law contrasts here with that of its private law cousin, contract. While ‘contractual’ can readily be used as an adjective to describe certain sorts of social relations (though not without the risk of misrepresenting contracting), the same is not true of ‘tort-like’ or ‘delictual’: these are legal terms, and no more. For scholars of the law of tort, it is therefore especially promising that The Currency of Justice treats the development of this branch of law as an important and integral part of a much wider set of developments in ‘consumer societies’. Such societies, it argues, are regulated in particular ways through the medium of money, and both civil and criminal liabilities feed into this process. The claim is a broad one: