Great Debates in Tort Law (Great Debates in Law)

“Invaluable to both students and scholars, Morgan’s Great Debates in Tort Law is smart, concise and highly readable. It introduces some of the most intractable debates within the field with ease, leaving the reader with a superb grasp of the fundamental issues at stake.” Stephen Bogle, University of Glasgow, UK “Debates in tort law are as numerous as they are difficult to navigate. From contested theories of justice to the formulation of specific torts, disagreement is pervasive. This is an ideal companion for the intellectual tort law journey, guiding the reader through the most significant of these debates without dogmatism.” Sarah Green, Law Commission, UK “In this excellent volume, Dr Morgan carves clear and helpful pathways through the densest, most prominent and hotly contested theories of tort law. For newcomers, it is an essential roadmap to what would otherwise probably be a daunting and trackless morass, with warnings of all the major hazards carefully highlighted.” John Murphy, Lancaster University, UK “This sophisticated and wide-ranging guide to current debates in tort law and scholarship will enable students to rapidly develop a deep understanding of this dynamic and challenging subject. Great Debates in Tort Law brilliantly weaves together a plethora of writings on tort law and makes fascinating connections between different parts of the syllabus. As a supplement to the core textbooks it is without equal.” Donal Nolan, University of Oxford, UK “Great Debates in Tort Law is a gem of a book. The reader is taken on an engaging and insightful tour of the most significant controversies in tort law by a wise and even-handed guide. This is tort theory at its practical best.” Andrew Robertson, University of Melbourne, Australia ‘Tort law is deceptively difficult. Legal doctrine, theory, and public policy all jostle for attention. Jonathan Morgan is a sure-footed guide to the subject, alive to the flaws and limitations within these traditions. His work is incisive, and sometimes contentious – but never dull.’ Warren Swain, University of Auckland, New Zealand Contents 8 Long Contents 10 Acknowledgements 16 Table of Cases 18 Table of Legislation 28 1. Introduction 30 Not an Introduction 30 What Makes a Good Theory? 32 PART I: TRESPASS 36 2. Trespass: Tort and the Vindication of Rights 38 Introduction 38 Debate 1: Justifying Strict Liability and Actionability Per Se 41 Strict Liability and Defences 41 Actionability Per Se and Vindication 46 Debate 2: Remedies and Vindication of Rights 48 The Lumba Debate 51 Nominal Damages 53 Vindication by Declaration? 56 Rights and Loss 59 Debate 3: Trespass and ‘Constitutional Rights’ 60 Debate 4: ‘Informed Medical Consent’ – Which Tort? 65 Conclusion: Negligence and Trespass Distinguished 68 PART II: NEGLIGENCE 72 3. Negligence: Introduction 74 Negligence and Rights 74 Tort as an Instrument of Social Policy 76 The Structure of Negligence 78 Negligence: Further Issues 80 Breach of Duty 80 Defences 80 Pure Economic Loss 80 Omissions and Public Authority Liability 81 Assumption of Responsibility 81 4. Causation and Corrective Justice 82 Debate 1: Causation and Compensation 83 Accident Compensation Schemes 84 Compensation and Tort Doctrine 84 Fairchild Enclave: ‘Single Causal Agent’ 86 Fairchild Enclave: ‘Scientific Uncertainty’ 89 Fairchild Enclave: A Special Rule for Mesothelioma? 91 Debate 2: Causation and Deterrence 95 Punishment and Justice: Tort and Crime 95 Deterrence, Economic Analysis and Causation 98 Causation, the Burden of Proof and the ‘Empty Duty’ Argument 101 Exceptional Cases? Fairchild and Chester 104 Conclusion 105 Debate 3: Questioning Corrective Justice – Moral and Doctrinal Critique 106 ‘Two Hunters’ (or ‘the Indeterminate Defendant’) 106 The ‘Matching’ Problem: Sindell v Abbot Laboratories 111 Aggregation and Corrective Justice 113 Moral Critique of Corrective Justice 117 Conclusion 121 5. Concepts of Causation: But-For and Remoteness 124 Introduction: Causation, Proof, 'Damage' and Consequential Loss 124 Debate 1: The But-For Test 129 The Problem of Multiple Causes: But-For ‘Disapplied’ 131 Multiple Sufficient Factors: Each Causal? 132 The ‘No Better Off’ Principle 136 Does It Make Any Difference? 138 Conclusion: ‘Involvement’ or ‘Necessity’? 141 Debate 2: Remoteness, Causation and ‘Common Sense’ 142 ‘Foreseeable Kind of Harm’ 144 Interventions 149 Coincidences: Chester v Afshar 152 ‘The Scope of Duty’ Limitation 155 Conclusion: ‘Common Sense Causation’ and the Scope of Responsibility 156 6. What Is the Function of the Duty of Care? 162 Debate 1: Is the Duty of Care an Essential Component of the Tort of Negligence? 164 Foreseeability: The Unity of Duty, Breach and Damage? 168 The Triviality of Foreseeability? 169 The Redundancy of Foreseeability? 171 Debate 2: Does the Duty of Care Serve a Useful Function? 174 Duty of Care: Then and Now 175 Abolishing the Duty of Care? 177 Conclusion 180 7. Defining the Duty of Care 182 Debate 1: The Caparo ‘Test’ – Decline and Fall? 183 A Defence of the Three-Stage Test 186 Duty: Division between Justice and the Public Interest? 188 Debate 2: Policy and the Duty of Care 189 Common Law Rights, Public Interest Legislation? 193 Policy and Legal Certainty 195 Policy, Evidence and Judicial Capacity 198 The Politics of Corrective Justice 202 Policy: Conclusions 204 Debate 3: ‘Incrementalism’ 206 Fashion and Incrementalism 206 Incrementalism: Critique 211 Incrementalism: Conclusions 216 8. 'Physical Injury' in Negligence 220 Introduction 220 Personal Injury: So Obvious That It Goes Without Saying? 220 Clarification: ‘Gist Damage’ and ‘Consequential Loss’ 224 Debate 1: What is ‘Personal Injury’? The Boundaries of ‘Bodily Harm’ 225 Minor Injuries: A ‘Hook’ for Consequential Loss? 226 ‘Actionable Damage’ and Limitation Periods 228 The Outer Limits of ‘Personal Injury’? 229 Debate 2: ‘Preventive’ Damages 231 Caught in the Crossfire: Preventive Damages and Anns 235 Debate 3: ‘Wrongful Birth’ and Physical Injury 236 ‘Wrongful Life’ 237 ‘Wrongful Birth’ and the Sanctity of Life 238 ‘Wrongful Race’? 240 Categorisation: Duty and Damage 241 Gendered Reasoning About ‘Actionable Damage’? 242 ‘Loss of Autonomy’ as Actionable Damage? 245 Conclusion 247 9. Psychiatric Illness, Emotional Harm and 'Shock' 248 Debate 1: Physical Injuries, Shock, Distress and ‘Recognisable Psychiatric Illness’ – What Interest Should Tort Law Protect? 248 A Preference for the Physical? 248 ‘Psychiatric Illness’ or ‘Nervous Shock’? 249 ‘Recognisable Psychiatric Illness’ 252 ‘Mere Distress’ 254 Debate 2: Justifying the Restrictive Rules on Psychiatric Illness 257 The Alcock Rules on ‘Secondary Victims’ 257 Alcock Rules: Rights-Based Critique 260 Alcock Rules: Policy Critique 261 ‘Floodgates’ 264 ‘Primary Victims’: Zone of Danger or ‘Involvement’? 265 Stress at Work 269 Debate 3: How Should the Law on Psychiatric Illness be Reformed? 273 A Foreseeability-Based Approach? 274 Outright Abolition? 278 The Law Commission and ‘Muddling Through’? 280 Retention: ‘Recognisable Psychiatric Illness’ 280 Abolition: ‘Sudden Shocking Event’ 281 Abolition: Proximity in Time and Space; Own Unaided Senses 283 Reform: Ties of Love and Affection 284 Another Compromise: Quid Pro Quo? 285 Conclusion 286 PART III NUISANCE 290 10. Private Nuisance and Property Rights 292 Debate 1: Is Nuisance a Tort for Protecting Property Rights? 292 Property Rights: Standing to Bring a Claim 293 Property Rights: Compensation 295 Nuisance and Human Rights 297 The Boundaries of Nuisance: The Absence of Rights 300 Debate 2: Justifying the Rights-Based Approach 305 Protecting the ‘More Fundamental’ Use of Land:Beever’s Theory of Nuisance 307 Beever’s Theory: Appraisal and Criticism 309 Defining Property Rights: The Role of the Public Interest 313 Purity and Transparency 317 Debate 3: Balancing or Strict Liability? Property Damage, Nuisance and Trespass 318 Strict Liability for Property Damage and Trespass 319 Balancing Rights: ‘Live and Let Live’ 322 Balancing Rights: Locality and ‘Ordinary Human Existence’ 324 Conclusion 329 11. Economic Analysis of Nuisance 332 Coase's Analysis 332 Critique of Coase: Misdescription of Nuisance Doctrine 337 Critique of Coase: Judicial Capacity to Identify 'Highest Value Use of Land' 339 Information Theory in Nuisance and Trespass: Clear Rules and 342 12. Nuisance and the Environment: Tort, Regulation and Pollution 350 Debate 1: Nuisance and Environmental Protection – Potential and Limits 351 Private Property and the Environment 351 Private Enforcement 354 Debate 2: The Interaction of Tort and Regulation – Nuisance and Planning Permission 356 The Defence of Statutory Authority 357 Planning Permission: No Defence 358 Regulation and the Scope of Nuisance 362 Remedies and Planning Permission 363 Tort and Regulation: Analysis 367 Conclusion 372 Debate 3: Pollution and the Industrial Revolution – Nuisance in the Nineteenth (and the Twenty-First) Century 373 The Received Historical Account 374 Nuisance and Pollution Control: Underrated? 377 Conclusion: Climate Change andNuisance in the Twenty-First Century 379 Index 384 Exploring the key discussions and arguments in tort law, this book enables students to get a deeper and more rounded understanding of the subject. Part of the Great Debates series, it is an engaging introduction to the more advanced legal concepts, such as negligent breach of duty and vicarious liability. Each chapter is structured around questions and debates that provoke deeper thought. It features summaries of the views of notable experts on key topics and each chapter ends with a list of further reading. This book is ideal for use by ambitious students alongside a main course textbook, encouraging them to think critically, analyse the topic and gain new insights. The development of these skills and the discursive nature of the series, with an emphasis on contentious topics, means the book is also useful for students when preparing their dissertations. Suitable for use on courses at all levels, this book helps students to excel in coursework and exams.