Tort and Crime 1

CAMBRIDGE UNIVERSITY PRESS CONTENTS Uruversiry Printing House. Cambridge CB2 8BS. United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University's mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence, wv.".; .cambridge.org Information on this title: www.canlbridge.org/9781107066113 List of contributors vii ~ Cambridge University Press 2014. Foreword ix This publication. is in copyright. Subject to statutory exception Preface xi and to the provisions of relevant collective licensing agreements. Table of cases xii no reproduction of any part may take place without the written permission of Cambridge University Press. Table of legislation xxvi First published 2014 1 Disentangling and organising tort and crime 1 Printed in the United Kingdom by Clays, St lves pic MATTHEW DYSON A catalQgue record for this publicntioll is IlI'aihlblc from the British Library 2 Policing tort and crime with the MIB: remedies, penalties Library of Congress CAtaloguing ill Publication data and the duty to insure 22 Unravelling tort and crime I edited by Matthew Dyson. pages em ROB MERKIN AND JENNY STEELE ISBN 978-1-107-06611-3 (Hardback) 1. Torts-England, 2. Criminal law-England. 3 Tort law and criminal law in an age of austerity 58 L Dyson, Matthew. 1982- editor of compilation. NICHOLAS J. MCBRIDE KDl949.A1U57 2014 346.4203-dc23 2014007592 4 Wrongs and responsibility for wrongs in crime and tort 82 ISBN 978-1-107-06611-3 Hardback G. R. SULLIVAN Additional resources for this publication at www.cambridge.orgi9781107066113 Private rights and public wrongs III Cambridge Univers.itr Press has no responsibility for the persistence or accuracy of 5 URLs for external or third-party internet websites referred to in this publication. ROBERT STEVENS and does not guarantee that any content on such websites is, or will remain. accurate or appropriate. 6 Torts, crimes and vindication: whose wrong is it? 146 R. A. DUFF 7 illegality's role in the law of torts 174 GRAHAM VTRGO 8 Defences in tort and crime 208 JAMES GOUDKAMP v CONTENTS vi 9 Causation in tort law and crim.inallaw: unity CONTRIBUTORS or divergence? 239 SANDY STEEl. 10 Complicity 275 PAUl. S. DAVIES 11 Civil liability for crimes 304 j . R. SPENCER JOHN BLACKIE is Emeritus Professor of Law at the University of 12 Consent and assumption of risk in tort and Strathclyde criminal law 330 PAUL S. DAVIES is fellow and tutor at St Catherine's College and KENNETH W. SIMONS Associate Professor, University of Oxford 13 The interaction of crime and delict in Scotland 356 JOHN BLACKIE R. A. DUFF is Emeritus Professor, Department of Philosophy at the University of Stirling and Russell M. and Elizabeth M. Bennett Chair in 14 The properties of the law: restoring personal property Excellence at the University of Minnesota Law School through crime and tort 389 MATTHEW DYSON AND SARAH GREEN MATTHEW DYSON is fellow in law at Trinity College, University of Cambridge Index 422 JAMES GOUDKAMP is fellow and tutor at Keble College and Associate Professor, University of Oxford SARAH GREEN is fellow and tutor at St Hilda's College and Associate Professor, University of Oxford NICHOLAS J. MCBRIDE is James Campbell Fellow in Law at Pem- broke College, University of Cambridge and Quondam Fellow, All Souls College, University of Oxford ROB MERKIN is Lloyd's Professor of Commercial Law at the Univer- sity of Exeter KENNETH W. SIMONS is Professor of Law and The Honorable FrankR Kenison Distinguished Scholar in Law at Boston University School of Law J. R. SPENCER QC is Bye Fellow of Murray Edwards College, retired fellow of Selwyn College and Emeritus Professor of Law at the University of Cambridge vii Table of Contents Foreword by Lord Hoffmann v Preface , vii Contributors xi Table of Cases xiii Table of Legislation xxvii Table of Delegated Legislation xxxi Table of Conventions xxxiii Table of Restatements and Model Codes xxxv A. General Issues and Themes 1 1. Central Issues in the Law of Tort Defences ANDREW DYSON, JAMES GOUDKAMP AND FREDERICK WILMOT-SMI1H 3 2. Pleading Defences in Tort: The Historical Perspective DAVID IBBETSON 25 3. Defining 'Defences' LUtS DUARTE D·ALMEIDA · ··..··· 35 4. Tort Law's Missing Excuses JOHN CP GOLDBERG 53 5. Duties to Try and Duties to Succeed STEPHEN A SMITH 65 6. Balancing Defences RODERICK BAGSHAW ·..·· · 87 7. Defences and Third Parties: Justifying Participation PAUL S DAVlES · · 107 B. Specific Defences 133 8. Justifying Necessity as a Defence in Tort Law GRA'HAM VIRGO 135 9. A Defence of Duress in the Law of Torts? JAMES EDELMAN AND ESTHER DYER 159 10. Nuisance, Planning and Regulation: The Limits of Statutory Authority DONAL NOLAN 183 x Table of Contents 11. Weaving the Law's Seamless Web: Reflections on the Illegality Defence in Tort Law BEVERLEYMcLACHlIN 207 12. The Doctrine of Ulegality and Interference with Chattels Contributors Jfu\1ES GOUDKAMP Al\'D LOREt~Z MAYR 223 13. Should Contributory Fault be Analogue or Digital? Roderick Bagshaw is a Fellow and Tutor in Law at Magdalen College, Oxford, and ROBERT STEVENS 247 an Associate Professor of Law at the University of Oxford. 14. Assumption of Risk in a System of Strict Liability: Andrew Burrows, QC (Hon), FBA, DCL is a Senior Research Fellow of All Souls Conceptual Tangles and Social Consequences College, Oxford, and Professor of the Law of England at the University of Oxford. RICHARD A EPSTEIN 265 Paul S Davies is a Fellow and Tutor in Law at St Catherine's College, Oxford, and 15. Privacy Claims: Transformation, Fault, and the Public an Associate Professor of Law at the University of Oxford. Interest Defence Luis Duarte d' Almeida is a Chancellor's Pellow in Law at the University of BARBARA McDONALD 289 Edinburgh. 16. Some Recurring Issues in Relation to Limitation of Actions Esther Dyer is a graduate lawyer at Aliens. ANDREW BURRO'\VS 311 Andrew Dyson is an Assistant Professor in Private Law at the London School of Index af Authars.......................... .................................. 331 Economics and Political Science . Illdex......................................... 333 The Hon Justice James Edelman is a Justice of the Supreme Court of Western ............................................................ _. Australia. He is also an Adjunct Professor at the TC Beirne Scbool of Law, University of Queensland and the Faculty of Law, University of Western Australia and a Conjoint Professor at the Faculty of Law, University of New South Wales. Richard A Epstein is the Laurence A Tisch Professor of Law at the New York University School of Law, the Peter and Kirsten Bedford Senior Fellow, the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago. John CP Goldberg is the Eli Goldston Professor of Law at Harvard Law School. James Goudkamp is a Fellow and Tutor in Law at Keble College, Oxford, and an Associate Professor of Law at the University of Oxford. He is also an Honorary Senior Research Fellow at the Faculty of Law, University of Western Australia and an Honorary Fellow at the Faculty of Law, University of Wollongong. David Ibbetson, FBA, is President of Clare Hall, Cambridge, and Regius Professor of Civil Law at the University of Cambridge. Lorenz MaYT is a doctoral candidate and a Research Fellow at the Institute of International and Foreign Law at the University of Passau. Barbara McDonald is a Professor of Law at the University of Sydney. She also a Commissioner at the Australian Law Reform Comm.ission and a Visiting Professor at the New College of Humanities. The Rt Hon Beverley McLachlin, PC is the Chief Justice of Canada. Donal Nolan is the Porjes Foundation Fellow and Tutor in Law at Worcester College, University of Oxford. CONTENTS Foreword by the J(igh, Honourable Lord Mackay of Clashfern v Notes on the Contributors xi lutroduction xix PERSPECTIVE 1: THE LAW 1. Causation 3 Ilt Hon Lord Hoffmann 2. Risky Business: Causation in Asbestos Cancer Cases (and Beyond?) 11 Joseph Sanders 3. Developing Causal Doctrine 41 Martin Hogg 4. Causation, Politics and Law: The English - and Scottish -Asbestos Saga 57 Jonathan Morgan 5. Inferring Cause In Fact and the Search for Legal 'Truth' 93 Russell Brown 6. Causation in French Law: Pragmatism and Policy III Duncan Fairgrieve and Florence G'sell-Macrez PERSPECTIVE II: SCIENTIFIC EVIDENCE 131 7. The Role of Scientific and Statistical Evidence in Assessing Causality 133 A Philip Dawid 8. Using Scientific Evidence to Resolve Causation Problems in Product liability: UK, US and French Experiences 149 Richard Goldberg 9. Biostatistics and Causation in Medicinal Product Liability Suits 179 Peter Feldschreiber, Leigh-Ann Mulcahy and Simon Day 10. Proving Causation: Probability versus Belief 195 Richard W Wright 11. Liability for Future Harm 221 Ariel Porat and Alex Stein 12. Scientific and Medical Evidence in Causation Decisions: The Australian Experience 241 Ian Freckelton x Cements 13. The Challenge of Developing Science for the L1W of Torts 261 Carl F Cranor PERSPECTIVE III: LEGAL THEORY 283 NOTES ON THE CONTRIBUTORS 14. The JESS Account of Natural Causation: A Response to Criticisms 285 Richard \V Wright 15. NESS for Beginners 323 LORD HOFFMANN has been r lonorary Professor of Intellectual Property Law, Queen Mary, University London since June 2009, following his retirement as a Lord of Appeal Chris Miller or in Ordinary. He attended the University of Cape Town and then Queen's College, Oxford, 16. The MMTS Analysis of Causation 339 as a Rhodes Scholar and won. the Vinerian Scholarship. He was an advocate of the Supreme Horacio Spector Court of South Africa 1958-60, called to English Bar by Gray's Inn in 1964 and appointed Queen's Counsel in 1977.

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