The Law of Tort: Revised September 2014 (English Law Series. Book 13)

Other academic work Rachael has acted as an academic expert witness for a class actions-related air cargo cartel matter in Canada. A Rocky Road Ahead? A Reply to Hello! PhD Supervision Professor Mulheron offers postgraduate supervision in the fields of class actions jurisprudence, tort law or medical negligence although availability of supervision is subject to workload capacity. Public Engagement Professor Mulheron's public engagement work centres around law reform research, advisory and published work which, for over a decade, has been principally aimed at three different areas of law: Government and law reform Appointments May General Secretariat of the Supreme Court of Japan Civil Affairs Bureau oral discussions, and provision of published materials, regarding class actions December —: Dept for Business, Innovation and Skills discussions and research memos for consultation on opt-out class actions, as and when requested ; and similarly for the predecessor Department of Business, Enterprise, and Regulatory Reform BERR January—November Jackson Costs Inquiry various written and oral assistance, as and when requested October Dept for Business, Enterprise and Regulatory Reform funded research report regarding opt-out class actions in competition law November —9: The International Bar Association Taskforce on International Procedures and Protocols for Collective Redress re Guidelines for collective redress oral and written contributions, as and when requested April Federal Court of Canada Rules Committee research memo, as requested.

Assistance Given for Court Matters — The overarching question in the case was whether the police owed the victim a duty of care. The House held in that famous case that the police did not owe a duty of care to a woman who had been killed by the Yorkshire Ripper. A majority of the Supreme Court held in Michael that the Hill principle — the rule that the police do not owe victims of crime a duty of care — applies even when the identities of both the victim and the perpetrator are known to the police. But the decision is of much wider significance. It arguably signals a major shift in the approach to determining when a duty of case exists generally.

This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm.

An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules. Both contributory negligence and apportionment are very frequently in issue in negligence cases and, when they are, they are often key points in dispute.

It is relatively rare, however, for the law in this area to be dealt with at any length on appeal. There are various possible causes of this situation, one of which is the well-established principle that appellate courts should disturb findings of a trial judge in relation to contributory negligence or apportionment only where those findings are clearly wrong. Jackson v Murray is, therefore, an important case. It is the first occasion on which the Supreme Court has engaged with this part of the law other than in passing. The decision casts light on several issues in the law of contributory negligence and apportionment.

It also raises some questions. This chapter is in three principal sections, though the sections are neither exhaustive nor hermetically sealed. We first examine what a defence actually is. We begin this section by considering a conundrum that pervades this field, namely whether it is possible to separate the definition of a defence from the consequences of something being a defence. We then consider the two main ways in which scholars have tried to understand the concept of a defence. In the second principal section of the chapter we turn to some general questions that the study of defences throws up across private law.

Themes addressed here include the interplay between causes of action and defences, the tendency for the law to evolve defences that apply in tightly-confined situations rather than defences that are potentially generally applicable, the implications of defences for major theoretical accounts of tort law and the connection between statutes and defences. Finally, we draw out some themes and defences that are most commonly associated with the criminal law, such as the distinction between justifications and excuses, which may also be of relevance to private law theorists.

Full details regarding the conference are available at the conference website. The conference, which is sponsored by Allens and Linklaters, will consider timeless and emerging problems in the law of contract. It will bring together judges, academics, and practitioners who are leading experts on contract law in order to explain and debate these problems.

As we discuss below, the speakers include some of the most distinguished legal thinkers from Australia, Canada, United Kingdom, New Zealand and Singapore. It addresses defences to liability arising in tort. The essays range from those adopting a primarily doctrinal approach to others that examine the law from a more theoretical or historical perspective.

Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of tort law as a whole. A number of the essays also draw upon concepts and literature that have been developed mainly in relation to the criminal law and consider their application to tort law. Richard Posner was on the crest of that wave, and his voluminous writings revolutionised how tort law is understood. He contended that tort law as well as the law generally is best explained on the ground that it maximises societal wealth. She was then aged around Upon her arrival, the claimant was granted a visitor visa on the ground that her purpose for being in the United Kingdom was to see relatives.

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In fact, the claimant had intended to study and work illegally for the respondents, Mr and Mrs Allen. The claimant worked as an au pair for the respondents, who were complicit in the claimant's immigration offences, although they neither paid her nor, as promised, provided her with education. The respondents' treatment of the claimant was, on any measure, highly exploitative.

It included physical abuse. Eventually, the claimant was dismissed from her employment, whereupon she brought several claims against the respondents, including a claim in the statutory tort of race discrimination with respect to her dismissal s 4 2 c of the Race Relations Act now s 39 2 c of the Equality Act The Employment Tribunal upheld that claim. The respondents relied on the illegality defence but the Tribunal found that it was inapplicable. The respondents' appeal to the Employment Appeal Tribunal was dismissed. The Court of Appeal [] IRLR reversed the findings below, holding that the illegality defence applied because the discrimination was inextricably linked with the claimant's illegal conduct.

The claimant appealed to the Supreme Court. 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 [] UKHL 33; [] A.

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 , , at [3. We are not alone in holding this view. We argue here that Hounga perpetuates and possibly aggravates the difficulties from which this area of law suffers.

It is also very regularly discussed by scholars. It has generated a literature that is large enough to justify the publication of a bibliography. However, the attention that has been lavished on the doctrine as it operates within tort law has largely been confined to the context of actions for negligently inflicted personal injury.

This chapter begins the process of redressing this situation. It does so by analysing the doctrine in relation to actions for interference with chattels. We postulate a wide range of hypothetical cases and consider how these cases would be decided if they arise. This discussion reveals the existence of significant lacunae in this area of the law, with no authority that provides definitive guidance as to whether the doctrine applies in particular situations.

We also ask, in the in relation to those cases that would fail on the ground of illegality, what the precise legal route is by which that result is achieved. Finally, we investigate how the hypothetical cases ought to be decided.

Professor Rachael Mulheron, BCom, LLB (Hons), LLM (Adv) (UQ), DPhil (Oxon)

We contend that what little law there is on the doctrine of illegality in the chattels context sometimes produces the wrong outcome and, where it delivers the right outcome, it frequently does so for the wrong reasons. It seeks to understand the reasons given in those cases and their implications.

It will be argued that the law in this area poses, partly as a result of this trilogy of cases, significant threats to the rule of law. Consideration is given to how these threats should be headed off. Fairchild established, of course, that it was unnecessary for a claimant who had suffered indivisible damage on account of his being tortiously exposed to asbestos by several defendants to demonstrate that any one defendant was a but-for cause of the damage in order to recover compensation. It was sufficient for the claimant to establish that a given defendant had increased materially the risk of damage.

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Fairchild was, on any measure, a revolution in private law. It laid down an important exception to orthodox principles. The ultimate appellate court has been called on several times to address questions presented by Fairchild. This note is concerned with the latest installment in this saga: This important decision lays down significant rules regarding the liability of insurers of Fairchild defendants.

Its financial impact will be enormous. It further increases the responsibility of insurers for tortiously caused asbestos-related diseases such responsibility has, of course, already been vastly expanded beyond what insurers could have predicted at the time that they accepted premiums. It also raises fascinating questions about judicial methodology and the proper development of the common law.

It is necessary to observe at the outset that the reasons delivered in Zurich are extraordinarily prolix. The judgment runs to a staggering 95 pages comprising paragraphs. Consequently, it has been necessary in this note to be selective in choosing aspects of the case on which to focus.

Serious consideration has never been given to the challenges that statutory tort law poses for theories of tort law. In this article we begin to redress this omission by examining the implications of statutes for corrective justice and rights-based theories of tort law. Our central task is to determine whether these leading theories accurately explain tort law once statutory tort law is taken into account.

As a precursor to this analysis, we consider whether statutes form part of tort law some influential theorists believe or arguably believe that they do not.

Torts in Canada

We contend that statutes are part of tort law and that the theories under examination fail to explain important aspects of statutory tort law. Partly because of this failure, they are not satisfactory accounts of the whole of tort law, which is often how they are presented by their proponents. 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.

Tort law and the criminal law are often considered to be profoundly distinct branches of the law. It has generally left that part of tort law that is concerned to define causes of action untouched. This chapter considers possible explanations for this striking focus. It then proceeds to categorise a range of different ways in which Parliament has legislated with respect to tort defences. Finally, the chapter explores several challenges posed by the legislative concentration on defences.

These challenges include the risk that legislative defences will be overlooked in the sea of statutes, the role for judicial development of common law defences, the appropriateness of applying traditional principles of statutory interpretation to modern statutory defences, the problem of statutory obsolescence, and the analogical development of common law defences by reference to statutory developments. There are rules that define the elements of an action in unjust enrichment, and there are rules that specify situations in which liability will not arise, or will not arise in full, even though all of the elements of an action can be established.

If this is correct, then it follows that there are two and only two types of response that a defendant can legitimately make with a view to avoiding or limiting his liability in unjust enrichment. He can argue that the claimant has failed to establish an element of his action. Or he can admit that the claimant has established all of the elements of his action but invoke a rule that wholly or partly exempts him from liability nonetheless.

We then proceed to consider some possible rationales for dividing the liability rules in unjust enrichment between actions and defences. The analysis in this regard is descriptive rather than normative. Our aim is to determine how the responses under review should be classified in light of their presentation in the Restatement.

We do not take a position on the normative issue of how particular responses ought to operate. That issue is best addressed once the descriptive analysis that we undertake here has been completed. It is significant for practical reasons because of the frequent and often powerful effect that it exerts on claims and litigation. Despite its significance, legal writers have shown relatively little interest in contributory negligence.

Fairly modest progress has been made in terms of advancing our understanding in this connection since Williams published his seminal treatise Joint Torts and Contributory Negligence. That monograph, despite being over 60 years old and written when the apportionment legislation was in its infancy, remains by a significant margin the leading analysis in the field. Possibly as a result of the general juristic neglect of the doctrine of contributory negligence, many erroneous beliefs about it have flourished. The goal of this chapter is to identify and correct some of these mistakes.

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It will be argued that: While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences.

The book shows that much can be learned about a given defence from the way in which it is classified. First, there are cases in which the loss about which the claimant complains is a criminal law sanction imposed upon him e. Secondly, there are actions in which the claimant seeks redress in respect of lost illegal earnings e.

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.

Tort Law - Oxford University Press

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. This report is examined with reference to the far-reaching reforms of tort law that occurred in Australia at the start of the twenty-first century. The analysis reveals that while there are certain similarities in the way in which tort law has been reformed in Australia and Britain, the reform experience in these jurisdictions has been quite different.

The main difference is that attention in Britain has centred on the system of procedure by which tort law is administered whereas in Australia the focus has been on the substantive law, including the law governing the assessment of damages. A possible reason for this divergence has to do with differences in political ideology. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane.

This result should be realized by providing for a generally applicable affirmative defence of insanity. Pritchard on whether the Law Reform Contributory Negligence Act permitted a reduction from a supermarket employee's full damages for the torts of assault and battery by the store manager on the ground that her behaviour, in belligerently confronting the manager after he refused consent for a day's leave, contributed to the loss. Considers whether apportionment should be available in the context of trespass to the person.

The central thesis that Professor Brown develops in the biography, which is encapsulated in its subtitle, is that Kirby is committed to a range of principles that are inconsistent with each other, or at least do not sit together comfortably. Perhaps the most significant of these supposed shortcomings was its willingness to award compensation to plaintiffs injured while in breach of the criminal law. At the height of the insurance crisis, media stories decrying the deficiencies of the common law in this respect were commonplace.

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This barrage of criticism led to the inclusion in the civil liability legislation in all jurisdictions except for Western Australia and Victoria of generally applicable illegality defences. The aim of this short article is to discuss the interpretation of these defences by the courts. It canvasses flashpoints in modern contract law. Themes addresses include the interpretation and rectification, good faith, illegality, the penalties doctrine and remedies.

This landmark case concerned the defence of illegality to liability arising in the tort of negligence. It established that parties to a joint illegal enterprise do not owe duties of care inter se if the nature of the enterprise is such that it would be "impossible" or not "feasible" to ask how the reasonable person would have acted in their circumstances.

The High Court recently reconsidered the defence in Miller v Miller. This was the first opportunity since Gala that the court has had to address this defence directly. The High Court replaced the principle in Gala with a test based on the legislature's purpose in creating the offence that the plaintiff committed. Therefore in trade secret law, unlike other intellectual property, contracts frequently are key evidence of the substance of the trade secret and the standard of behavior required for former employees to avoid infringing trade secrets … more.

Reform of the legal requirements for divorce September Individual cases include narratives in their recitation of the facts and procedural history. Sequences of cases can be studies as narratives, with events both internal and external to the law woven into a story about how and why the law changed. Some legal narratives stress the internal development of the law: Abstract The idea that the state is a fiduciary to its people has a long pedigree — ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents.

Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. These topics include the proper roles of public officials and judges; the validity and operation of positive rights; and the concepts of political representation, legitimacy, and obligation. The essay also presents several important critiques of public fiduciary theory. Provenance, Promise, and Pitfalls November 29, Of the four IT categories discussed, two stand out: There is a strong fairness argument to compensate patients injured from ITs because their injury led to improved knowledge benefitting future patients.

Crucially, category 2 patients also deserve compensation, notwithstanding that their treatment was BI …. Fairness or Also Efficiency Law, Innovation and Technology, Forthcoming. Abstract This chapter provides a brief account of the history of family property law in New Zealand from the nineteenth century to the present day, in the context of relationship property on death. The reference for a preliminary ruling stemmed from a French case in which a hepatitis B vaccine manufactured by Sanofi Pasteur allegedly caused personal injury to Mr W in the form of multiple sclerosis, a disease that ultimately led to his death.

The case is of particular significance as it presented the Court with an opportunity to clarify aspects of the causal link that a plaintiff needs to establish in order to be successful in a claim under the European Product Liability Directive the Directive. This is the third decision in a series of recent judgments of the Court on the interpretation of several grey areas of the original text of the Directive. Sanofi comes after a clarification of the material scope of the Directive and its relationship to special liability systems provided under national laws in Novo Nordisk Pharma , and a revision of the concept of defect and defectiveness in cases involving complex technological products in Boston Scientific.

This article contends that the decision in Sanofi endorses a dangerous method for the determination of a causal link between the administration of a vaccine and subsequent personal injury, whereby factual causation can effectively be reduced to speculative correlation. While there is undeniable value in vindicating the autonomy of legal reasoning in cases involving uncertain scientific issues, this should not result in arbitrariness. Rizzi, Marco, A Dangerous Method: Journal of European Tort Law , volume 9, issue 3 December Abstract The electronic will is here … almost. The last two years have seen rapid development in the area of electronic wills.

As of September , several states either have enacted electronic will statutes or are in the process of considering such legislation. This article provides the history of e-wills and reviews e-will statutes, both enacted and proposed, along with the Summer draft of the Electronic Wills Act. The Rise of the Electronic Will November 29, Abstract A tension arises whenever the South African private law fails to meet constitutional right norms.