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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, 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, 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 . 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 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. He was appoin.ted a judge of the High Court (Chancery Division) 17. Causing the Behaviour of Others and Other Causal Mixtures 361 1985-1992, elevated to the Court of Appeal 1992-1995 and appointed a Lord of Appeal in Roderick Bagshaw Ordinary 1995-2009. From 1980 to 1985 he was a (part-time) member of the Courts of 18. Law's Approach to Harm in the Context of Scientific Uncertainty: Observations Appeal of Jersey and Guernsey. Lord Hoffmann remains an active arbitrator and mediator from the Perspectives of Precaution and Indeterminate Causation 383 at Brick Court Chambers and continues to be a non-permanent judge of the Court of Final John Paterson Appeal of Hong Kong. In his judicial career he has given judgments which have had a pro- found effect in shaping modern English Jaw, ranging from the reading of arbitration clauses Table of Cases 409 and patent specifications to the scope of the Convention rights under the Human Right) Table of Legislation 421 Act. Of his many influential speeches, some have concerned the problems in establishing Statutory Insttuments 425 causation in the context of indeterminate defendants and of medical negligence. His publi- Index 427 cations include: 'The Universality of Human Rights' (2009) 125 LQR 416; 'Patent Construction' (2006) 35 CIPA J 727; 'Tax Avoidance' (2005) BTR 197; 'Causation' (2005) 121 LQR 592; 'Separation of Powers' (2002) 7 JR 137; and 'Bentham and Human Rights' (2001) 54 CLP61.

JOSEPH SANDERS JD, PhD (Northwestern) isAA White Professor of Law at the University of Houston. His research and writing focus on both socio-legal and traditional legal topics, including jury decision-making, the attribution of responsibility across cultures, torts, mass torts and scientific evidence. With respect to the current book, his relevant writings are: Bendectin On Trial: A Study of Mass Tort Litigation (The University of Michigan Press, 1998) and Modern Scientific Evidence (with Edward Cheng, David Faigman, David Kaye and Michael Saks) (West/Thomson Publishing Co, 2007-2008) as well as a number of articles on scientific evidence and expert witnessing, including most recently, 'The Insubstantiality of the Substantial Factor Test For Causation' (with Michael Green and William Bowers Ir), (2008) 73 Missouri Law Review 399, and 'Science, Law and the Expert Witness,' (2009) 72 Law and Contemporary Problems 63. He has served on the advisory panel for the Law and Social Science Program at the National Science Foundation. He is a member of the American Law Institute and the Law and Society Association. Professor Sanders edited the Law and Society Review from 2001 to 2004. He teaches courses in torts, products liability, scientific evidence, the jury, and law and social science.

MARTJN HOGG LLB, LLM, PhD (Edin) is a Senior Lecturer at the Edinburgh Law School. His main areas of research lie in all aspects of the law of obligations, with a current particu- lar emphasis on obligations theory, causation and the concept of damage. He has published on a number of aspects of causation and the law and in relation to the idea of damage, LANDMARK CASES IN THE LAW OF TORT

Edited by Charles Mitchell and Paul Mitchell ~w..------__ --=~

Lfi

VI

Edt the judge's conception of his own role. In some cases judges have felt am, obliged, or inclined, to go beyond the immediate facts, so as to lay down Contents broad principles for the future. The essay on Alcock (among others) Ian explores some of the motivations behind such expansiveness, and the 13· limits which judges feel themselves bound by. The nature of the response may also be coloured by what legal materials are perceived as relevant. As frO! Preface v the essay on Fairchild demonstrates, the judges' request in that case to hear da~ Contributors IX argument about the position in European jurisdictions produced an ess Table of Cases xi original and distinctive analysis, with a hint that future harmonisation vol Table of Legislation xxvii would be welcome. The essay on Smith u Littleu/oods, by contrast, cor Table of Conventions, Treaties, etc xxxi ran highlights the delicate issues involved in actually bringing about a conver- gence of the Scots and English law on liability for the acts of a third party. inc A further factor influencing the 'educated reflex' may even be the judge's I R v Pease (1832) 1 pul own education (see the essay on Hedley Byrne). MARK WlLDE AND CHARLOTTE SMITH rei. The part of a judge's educated reflex that will be furthest removed from 2 Buran v Denman (1848) 33 ess the facts involves the use of legal theory. The decision in Tate & Lyle, it is CHARLES MITCHELL AND LESLIE TURANO in argued, made a far-sighted use of the concept of rights, which was ahead 3 George v Skioington (1869) 69 of its time. George v Skiuington, both as decided and as subsequently DAVID IBBETSON dn interpreted by courts and textbook writers, was capable of being under- 4 Daniel v Metropolitan Railway Company (1871) 95 cal stood in a variety of ways, which all raised fundamental questions about mi the limits of negligence liability. Perhaps most strikingly, several of the MICHAEL LOBBAN juc cases reveal concerns about legal categories: what should the role of the 5 Woodley v Metropolitan District Railway Company (1877) 127 sh law of negligence be in relation to the law of nuisance or the law of STEVE BANKS contract, and what should the role of tort be in relation to a wider 6 Cavalierv Pope (1906) 153 Sc regulatory scheme? More broadly, there is an engagement with the ~CHARDBAKERANDJONATHANGARTON ques~on, ~hat is the law of tort for? We believe that the essays collected ar 7 Hedley Byrne & Co Ltd v Heller & Partners Ltd (1963) 171 de here ~ummate the process of judicial law making generally, and also cast some light on these broader questions. PAUL tv1ITCHELL to 8 Goldman v Hargrave (1967) 199 Sl MARK LUNNEY in Charles Mitchell and Paul Mitchell 9 Tate & Lyle Food & Distribution Ltd v Greater London Council rc August 2009 (1983) 227 a1 JWNEYERS rr; 10 Smith v Littlewoods Organisation Ltd (1985) 251 ELSPETH REID II Alcock v Chief Constable of South Yorkshire Police (1991) 273 DONAL NOLAN

12 Hunterv Canary Wharf Ltd (1997) 3Il MARlA LEE 13 Fairchild v Glenhaven Funeral Services Ltd (2002) 335 KEN OLIPHANT

Index 359 Emerging Issues in Tort Law

Edited by Jason W Neyers, Erika Chamberlain and Stephen G A Pitel

• HA RT· PUBLISHING OXFORD AND PORTLAND, OREGON 2007 Contents

Foreword v Contributors xv Introduction 1 JASON W NEYERS, ERIKA CHAMBERLAIN AND STEPI lEN G A PITEL

1 General and Special Tort Law: Uses (and Abuses) of Theory 5 PETER CANE 1. The General/Special Distinction 5 n. A Two-Part Criminal Law 7 III. Transitional Stocktaking 13 IV. Tort Theory and the General/Special Distinction 15 V. Tort Theory Through the Lens of Criminal Law Theory 18 Vl. A Two-Part Tort Law? 21 VII. Coda: The Limits of Philosophy 27 A. The (Dis)Unity of Tort Law 27 B. The Politics of Legal Philosophy 29

2 Breach of Statute and Tort Law 31 LEWIS N KLAR I. Introduction 31 II. The Judgment in The Queen u Saskatchewan Wheat Pool 32 Ill. The Impact of Saskatchewan Wheat Pool on Canadian Law 35 A. Statutory Standards Applied Within Existing Common Law Duty Relationships 37 B. The Use of Statutes in the Absence of a Common Law Duty Relationship 39 C. The Suggested Correct Approach to the Interaction Between Statutes and Negligence Actions 52 IV. The Interaction Between Breaches of Statutory Duties and the Tort of Misfeasance in a Public Office 57 V. Conclusion 61

3 'Sois Sage'- Responsibility for Childishness in the Law of Civil Wrongs 63 SHAUNA VAN PRAAGH I. Introduction 63 II. Learning Responsibility: Curious George and the Man With the Yellow Hat 65 III. Responsibility for Childish Behaviour 69 Contents IX VI11 Contents

Childhood: Where the Parents Are 74 A. The Three Elements of Duty and Liability for Physical IV. 149 \". Conelu ions 83 Loss B. A Second Category of Negligence: the Reliance Model 155 4 Claims of Involuntary Parenthood: '\ hy the Resi tance? 85 C. The Two Fundamental Categories of Negligence: ELlZABETH ADJlN-TEITEY Comparisons and Conclusions 165 168 I. )nrrod ucrion 85 III. The Requirements of Justice and a Proposed Solution n. Overview of Judicial and Legislative Positions on Claims of 191 Involuntary Parenthood 86 7 Breaches of Contracts and Claims by Third Parties Ill. Limited Recovery: Partial Recognition of Reproductive STEPHEN WADDAMS Autonomy 89 199 IV. Denial of Recovery of Maintenance Costs as a Matter of 8 Policy Issues in Defective Property Cases Distributive Justice 94 STEPHEN TODD v. Construction of Legal Injury or Com pen able Harm 98 l. Introduction 199 VI. Commodification Rationale for Den) ing Child H. An Overview of the Cases 200 Maintenance Costs 103 A. England 200 VII. Conclusion 109 B. Australia 203 C. Canada 206 5 liability for Psychiatric Damage: Searching for a Path D. New Zealand 208 between Pragmatism and Principle 113 III. Legal Principle 211 }'lICHAEL A JO}"TES IV. Policy Concerns 213 I. Introduction 113 A. Promoting Professional Accountability 214 II. Categories of Claimant 115 B. Imposing a Proportionate Burden of Liability 214 A. Psychiatric Harm Following Physical Injury co the C. Maintaining Contractual Certainty 216 221 Claimant 116 D. Responding to Need B. Claims for Pure Psychiatric Harm in the Paradigm E. Protecting the Vulnerable 225 229 'Nervous Shock' Action Involving Participation in or V. Negligent Inspections 230 Observation of a Traumatic Event VI. Limitation of Actions 117 231 C. Claims for Pure Psychiatric Harm where the Claimant VII. Conclusion Falls Outside the 'Nervous Shock' Paradigm of Sudden Traumatic Events Defective Structures and Economic Loss in the United States: 120 9 233 m. Cons~qu~ces of these Categorisations in Relation to Pure law and Policy Psychiatric Damage DAVID F PARTLETI 122 233 IV. 1. Introduction Psy~hiatricHarm Following Physical Injury to the 234 Claimant 125 II. Law, Legislation and Behaviour A. An Overview of United States Case Law 234 A. The Thin Skull Rule 125 V. The Medical Context B. Defective Buildings, Products Liability, and the United VI. Causation 130 235 134 States Supreme Court . VII. How ~h~uld Lavryers Respond to Claims Involving C. The Economic Loss Doctrine Always Applies: New Psychiatric Harm? 237 135 York Statutory Causes of Action: California and Nevada 239 6 D. Should White v J Re C· E. Duty to Construct Without Negligence: Colorado and First Principles ones present anadian law: A Return to 241 141 South Carolina PETER BENSON Comparative Policy Considerations Between the United I. F. 1:h.Two Routes to Liability Considered in States and England, Australia, Canada and New tte u jones 242 n. 143 Zealand ~he tundamenral Categories of Duty Relations in eg igence G. What's a Builder To Do? Insurance and Risk 149 Mitigation Cost and Availability of Insurance 243 x Contents Contents Xl

H. Risk Management rraregie 244 12 Decision Causation: Pandora's Tool-Box 309 Ill. Policy 246 VAUGHAN BLACK 1. Introduction 309 10 Harm Screening Under Negligence Law 251 n. The Cases 316 ISRAEL GILEAD Ill. Analysis 323 I. Introduction 25t II. Relational Screening: The- cope-of-Risk Rule 256 13 Non-Delegable Duties and Vicarious Liability 331 A. What Makes Conduct Faulty and a Risk Tortious? 256 ROBERT STEVENS B. The Four Aspects of Risk 257 I. Lntroduction 331 C. The 'Description Problem' and the Attack on II. Attribution 332 Relational Risk-Related Screening 258 Ill. Fault 337 D. The 'Harms/benefits Correlation Problem' 261 IV. Normal and Abnormal Risks 339 E. Rationale and Justifications for Risk-Related Screening A. The 'rule in Rylands v Fletcher' 339 of Foreseeable Harms 262 B. Australia 344 F. Tackling the 'Harms/Benefits Correlation Problem' 265 C. Qualified Privilege 345 ill. Unforeseeable Risks and Exceptions to V. Statutory Duties 348 Risk-Related Screening 267 VI. Miscellaneous Cases 349 A. Screening Unforeseeable Harms: Justifications 267 A. Fire 349 B. The Different Kinds of Unforeseeability 268 B. Private Nuisance 350 C. Unscreened Unforeseeable Harms: Undeserving Actors, C. Withdrawal of Support from Neighbouring Land 351 351 Deserving Plaintiffs and the Extent of Harm 270 D. Public Nuisance IV. Liability-Watch Screening: Justifications, Methods and VlI. Contractual and Consensual Duties 352 352 Increasing Complexity 272 A. Exigibility V. The Screening Devices and the 'Division of Labour' B. Bailment 354 Between Them C. Employer's Duty to an Employee 354 275 356 A. Screening Concepts: The Confusion 275 D. Carriers B. Distinguishing between Relational and Liability-Watch E. Hospitals 356 357 Screening Devices 276 F. Occupiers C. The Pros and Cons of the Third Restatement's G. Landlords 359 Screening 'Revolution' H. Assumed Duties Generally? 359 276 365 D. 'Divisi~n of Labour' between Duty and Legal 1. A Radical Thought and a Doubt VIII. Conclusion 366 Causation. An illustration 279 E. Three Observations 282 VI. A Shorr Summary 14 Juridical Foundations of Common Law Non-Delegable Duties 369 284 VII. Two Concluding Notes: Unforeseeability and C . JOHN MURPHY Justice orrecnve 1. Introduction 369 285 II. The Non-Delegable DutyNicarious Liability Relationship: 371 11 AR[ctsand Omissions as Positive and Negative Causes Some Red Herrings HARDC W WRIGHT 287 A. Two Misleading Rationales 371 T. Introduction B. Three Problematic Cases 374 ll. Positive and Negative Causation 287 C. Judicial Confusion 378 III. Overdetermined Positive Causation 290 III. The Juridical Foundations of Non-Delegable Duties 379 IV. Overdet~rmined Negative Causation 292 A. Two Competing Features? 380 V. ConclUSion 302 B. A Second Precondition: Affirmative Duty 387 307 IV. Conclusion 390 xii Contents Contents XIII

15 Perish Vicarious Liability? 393 19 Tort Law in Practice: Appearance and Reality in Reforming DAVID R WINGFIELD Periodical Payments of Damages 487 1. Introduction 393 RIClIARD LEWIS II. Vicarious Liability was Once a Contractual Doctrine 395 1. Introduction 487 III. COntract Principle do not Explain or justify the It. The First Judicially Approved Structure 488 lmpo ition of Vicarious Liability in all Circumstance 398 Ill. The Need to Impose Periodical Payments 490 IV. Tort Principles do Explain and Justify the Imposition of IV. Limits on the Power to Impose Periodical Payments 492 Vicarious Liability in all Circumstances 404 V. Exercise of the Court's Discretion to Award Periodical V. Unfortunately Courts Still Look to Contract Principles fa Payments . 494 Ju rify the Imposition of Vicarious Liability 413 VI. A Change to the Method for Assessing Damages. 496 VI. Conclusion: In Order to Change our Contractual Mind et Vll. The Impact on the Bargaining Power of the Parties 497 We Need to use Tortious Words 417 VUf. Why COStS for Insurers Will Increase 499 IX. The Political Reasons for the Reform 501 16 Comparative Perspectives on Vicarious Liability: Defining the X. Canadian Comparisons 504 Scope of Employment 419 Xl. Conclusions 506 PAULA GILlKER 1. Introduction 419 20 The Structure of the Intentional Torts 509 Il. Scope of Employment 422 KEN OLIPIIANT m. Deciphering the 'Scope of Employment': the Common Law L Introduction 509 Approach 423 II. The Intentional Torts 511 IV. A Fresh Perspective: Liability for the Acts of others in Civil A. Meaning of 'Intentional Tort' . 511 Law 427 B. The Lack of General Principle in the Intentional Torts 513 A. The Concept of 'Abus de Fonction' 429 Ill. A General Liability for Intentional Injury? 516 V. Finding a Rationale for Vicarious Liability 433 A. The Early Tort Treatises 517 VI. Conclusion 438 B. Liability for Malice in 19th-century .Torr C.ases 520 C. The Rejection of Liability for MalicIOUS Injury per se 522 17 What is a Loss? 441 IV. Conclusion 530 Ai'1DREW TETrEl\TBORK I. Introduction 441 21 The Role of Intention in the Tort in Wilkinson v Downton 533 II. Traditional Ideas: Money, Loss and Other 441 DENISE REAUME A. Is There any Relevant Loss at All? 444 I. Introduction 533 B. Loss and its Impact on the Plaintiff 450 II. Reconstructing the Original Understanding of the Tort in C. The Wrong Directly Impacts on Someone other than Wilkinson v Doumton 536 the Plaintiff III. The Canadian Sequel 544 m. The Logic of Loss 452 454 A The Leap Across the Pond 544 [Y. A New Approach to the Problem of Loss B.' The Rahemtulla Test: Inrentional Inflicrion of Distress V. ConclUSIOn 456 465 Canadian-Style 546 C. Recent Developments 548 18 The Changing Face of the Gist of Negligence IV. 553 KUMARALINGAM AMlRTHALINGAM 467 Conclusion: Future Prospects I. Introduction 467 22 Where Principle Meets Pragmatism: Tort Law in Post-Colonial II. The Changing Face of the Gist of Negligence 557 A. IncreasedlIndustrial Risk 468 Hong Kong B. Medical Risk and Patient Autonomy 469 RICK GLOFCHESKI 476 1. Introduction 557 C. Loss of Chance 558 IIT. Conclusion and the Future of Negligence 478 II. The Common Law in Hong Kong 483 ill. Negligence 560 IV. Workers and Tort Law 563 xiv Contents

A. Employers' Duty of Care 563 B. Occupiers' Liability 564 Contributors C. Breach of Staturory Duty 567 V. Liability for the Wrongs of Other 568 A. Property Management Companies 568 B. Liability of Principal for Agent's Torts 569 Elizabeth Adjin-Tettey, LLB, LLM, LLM, DJur, Associate Professor of C. Employers' Vicarious Liability for the Torts of Law, University of Victoria Employees 572 VI. Intentional Torts 575 Kumaralingam Amirthalingam, LLB, PhD, Associate Professor of Law, VII. Defamation 576 National University of Singapore VIn. Conclusion 577 Epilogue 579 Peter Benson, AS, MSc, LLB, LLM, Professor of Law, University of Index 581 Toronto

Vaughan Black, BA, MA, LLB, LLM, Professor of Law, Dalhousie Univer- sity

Peter Cane, BA, LLB, DCL, Professor of Law, ANU College of Law, Australian National University

Erika Chamberlain, LLB, Assistant Professor of Law, University of Western Ontario

Israel Gilead, LLB, BA, LLD, Bora Laskin Professor of Law, Hebrew University of Jerusalem

Paula Giliker, BA, BCL, PhD, Reader in Comparative Law, University of Bristol

Rick Glofcheski, BA, LLB, LLM, Associate Professor of Law, University of Hong Kong

Lewis N Klar QC, BA, BCL, LLM, Professor of Law,

Michael A Jones, BA, LLM, PhD, Professor of Common Law, University of Liverpool

Richard Lewis, BA, MA, Professor of Law, Cardiff University

John Murphy, LLB, LLM, Reader in Law, University of Manchester

Jason W Neyers, BA, LLB, MSt, Associate Professor of Law, University of Western Ontario PHILOSOPHICAL FOUNDATIONS OF

The Law of Torts

EDITED BY John Oberdiek

OXFORD IS-

    John Oberdie 1. TORT LAW AND RESPONSIBILITY 17 Law at the Ru John c.P. Goldberg and Benjamin C. Zipursky inCamden,N I. Introduction 17 Rutgers Instit n. Responsibility Theories of Tort Law 19 Ill. Civil Recourse Theory as a Responsibility Theory of Tort Law 26 IV. Concluding Thoughts: The Importance of Recognizing Responsibility-Based Accounts of Tort Law 36 2. TORTS, RIGHTS, AND RISK 38 Stephen Perry I. Introduction 38 rr~~~~ru~ ~ III. Risk, Harm, and Rights 44 IV. Harm and Fundamental Moral Rights 49 V. The Role of Reasonable Foreseeability 60

    3. COMPENSATION AS A TORT NORM 65 Mark A. GeistJeld I. Introduction 65 II. Injury Compensation and Liberal Egalitarianism 67 III. A Compensatory Tort Right and the Correlative Compensatory Duty 70 IV. Compensation and Corrective Justice 79 V. Conclusion 85

    4. TORT AS A SUBSTITUTE FOR REVENGE 86 Scott Hershovitz

    1. Introduction 86 II. Corrective Justice 89 III. Corrective Justice Corrected 92 IV. The Message in the Money 96 V. Tort or Revenge? 98 VI. Corrective Justice and Criminal Law 99 VII. Conclusion 100 TABLE OF CONTENTS viii TABU' 01' CONTENTS ix

    v. 0 excep~ 5. STRUCTURE AND JUSTIFICATION IN CONTRACTUALIST Ill. Rehabilitating the Compensatory Model .~ifhin legal I 103 201 TORT THEORY IV. Ate Living African-Americans Wronged by Chattel Slavery? , togcther~tt 204 lohn Oberdiek V. Is Saying "Sorry" Enough? from arou nd 210 1. Introduction .• . 103 disci pli ne!>~ LO. REPAIRING HARMS AND ANSWERING POR WRONGS 212 to the phil..rs IT. Introducing Contractualist Tort Theory: Keating s SOCial R.A. Duff 106 zround breal Contract Theory t> 1. In troduction debates and . IIT. Rawlsian Distributive Justice and the Bilateral Struct.ure of Tort Law 108 212 II. Punishing Wrongs and Repairing Harms thus deepen] IV A Primer on Justification in Scanlonian Contractualisrn 113 212 Ill. A Gap-and How Civil Recourse Can Fill It Conrributior v: Justification to a Subject and "the PalsgrafPerspective" 114 218 IV. Questions about Civil Recourse: (i) The Accounting areas of tort I VI. Conclusion 121 222 V. Questions about Civil Recourse: (ii) The Remedy 225 responsibilio 6. ON THE "PROPERTY" AND THE "TORT" IN TRESPASS 122 VI. Civil Recourse, Cost-Allocation, and Criminal Law 229 morality ofh Eric R. Claeys and the relat II. TORT PROCESSES AND RELATIONAL REPAIR 1. Introduction 122 231 pro pert)' law Linda Radzik II. Property in a Lockean Morality of Labor 125 III. The Unconsented-Entry Paradigm 128 I. Introduction 231 john Oberd IV. Affirmative Defenses 130 II. What Stands in Need of Correction? 233 La w at the fl v. Conforming the Prima Facie Tort to the Underlying Ill. Damaged Relations and the Moral Obligation to Repair Them 236 inCamden, Substantive Right 132 IV. Forms of Corrective Justice 239 Rutgers Inst V1. Harm-Based Exceptions to Rights-Based Torts 135 V. Contributors to Corrective Justice 242 VI. VII. Property Foundations and Tort Implementation 137 From Morality to Law 245 Vill. Making Accident Torts Complement Rights-Based Torts 141 VII. Conclusion 248 IX. Conclusion 146 12. TORT LIABILITY AND TAKING RESPONSIBILITY 250 David Enoch 7. TORT LAW AND PUBLlC FUNCTTONS 148 Peter Cane 1. Introduction 250 II. New Zealand and Apologies 1. Introduction 148 252 II. Public Institutions and Public Functions 151 III. Taking Responsibility: The Intuitive Idea. and Some Examples 254 III. Demarcating the Province of Tort Law 153 IV. The Taking and the Responsibility 258 IV. Theorizing the Tort Law of Relationships of Juridical Inequality 161 V. Tort Liability and Taking Responsibility 266 V. Conclusion 168 VI. Is This Enough? 270 13. EXPLORING THE RELATIONSHIP BETWEEN CONSENT, PART II: HARMS, WRONGS, RESPONSIBILITY, AND LIABILITY ASSUMPTION OF RISK, AND VICTIM NEGLIGENCE 272 Kenneth W. Simons 8. WHAT MIGHT HAVE BEEN I. Introduction 171 272 Victor Tadros II. Legal Background 275 1. Introduction III. The Phenomenology and Structure of Consent 277 171 II. The Currency of Harm and Compensation IV. Comparing Consent (IT) with AR 281 173 III. Incomparable Problems V. Conclusion 290 177 IV. Meeting Comparative Complaints 178 14. STRICT LIABILITY WRONGS 292 V. \Vhy Time Is Not of the Essence 181 Gregory C. Keating Vl. In Defense of Counterfactualism I. Introduction VII. Conclusion 185 292 191 II. Harm-Based Strict Liability 2% 9. WHY REPARATIONS? III. Right-Based Strict Liability 297 Rahul Kumar 193 I. Introduction 193 II. Two Approaches to Reparative Obligations 195

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    follow ©Cambridge University Press :!OOI tortpt page ix Contributors negli~ This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements. 1 be un no reproduction of an) part rna} take place without introduction: Search for an Explanatory Theory of Torts a con me written permission of Cambridge University Press. GERALD J. POSTEMA A Social Contract Conception of the Tort Law of Accidents 22 conce Em publi: hed 2001 2 GREGORY c. KEATING relate Printed in the United States of America Responsibility for Outcomes, Risk, and the Law of Torts 72 expla 3 STEPHEN R. PERRY Typeface Times Roman 10112pt. System QuarkXPress 4.04 lAG) 131 This ( 4 The Significance of Doing and Suffering profe A ctualog record/or this book is available from the British library. MARTIN STONE Tort Law and Tort Theory: Preliminary Reflections on Method ] 83 in ph !ibmr}' of Congress Cataloging in Publication Data 5 JULES COLEMAN !heor 214 bette Philosophy and !he law of lOJ'tS I edited by Gerald J. Postema. 6 Corrective Justice in an Age of Mass Torts p. em. - (Cambridge studies in philosophy and law) ARTHUR RTPSTETN AND BENJAMIN C. ZIPURSKY Includes bibliographical references and index. Economics, Moral Philosophy, and the Positive Analysis 7 250 I. TOrts - Philosophy. I. Postema, Gerald J. II. Series. of Tort Law K923 P49 20001 MARK GEISTFELD 346.03'0 I~c21 Pluralism in Tort and Accident Law: Towards a Reasonable 8 276 00-{)65I74 Accommodation BRUCE CHAPMAN ISBN 0 52l 62282 4 hardback 323 References 335 Index