James Goudkamp is Fellow of Keble College and Associate Professor in the Oxford Law Faculty. His expertise is principally in tort law, but his research interests span the law of obligations and extend also to civil procedure.
James completed undergraduate degrees in science and law at the University of Wollongong, taking the law degree with first class honours and the University Medal.
James then studied for the Bachelor of Civil Law and Master of Philosophy of Law at Magdalen College, Oxford, taking both degrees with distinction. He continued continued his studies at Magdalen and submitted a thesis on tort law defences to earn the degree of Doctor of Philosophy. He published a descendant of this thesis as a monograph: James Goudkamp, Tort Law Defences (Hart Publishing, Oxford, 2013). This book was as the Joint Runner-Up for the Society of Legal Scholars' Peter Birks Prize for Outstanding Legal Scholarship 2014.
James was previously a Fellow of Balliol College, Oxford (2011-2013), the Shaw Foundation Junior Research Fellow in Law, Jesus College, Oxford (2009-2011), Lecturer in Law, St Hilda's College, Oxford (2008-2009), Associate to the Hon Justice Michael Kirby AC CMG of the High Court of Australia (2005-2006) and Associate Lecturer in Law, Faculty of Law, University of Wollongong (2003-2005).
James holds or has held visiting positions at Harvard Law School, the Inner Temple, the National University of Singapore, the University of Western Australia and the University of Wollongong. He is an advisor to the American Law Institute's Restatement (Third) on the Law of Torts to the Person.
James is available to supervise research students in any area of the law of obligations (especially but not limited to tort law) and civil procedure.
J Goudkamp, 'Apportionment of Damages for Contributory Negligence: A Fixed or Discretionary Approach?' (2015) Legal Studies (forthcoming) [...]
In most of the common law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This article 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. This article classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation, and considers how the conflicts ought to be resolved. 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.
J Goudkamp and J Murphy, 'Tort Statutes and Tort Theories' (2015) 131 Law Quarterly Review 133 [...]
Although the legislature has made significant inroads into tort law, tort theorists have focused their attention overwhelmingly on the common law. 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). 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.
J Goudkamp, 'The Young Report: An Australian Perspective on the Latest Response to Britain's "Compensation Culture" ' (2012) 28 Journal of Professional Negligence 4
J Goudkamp, 'Insanity as a Tort Defence' (2011) 31 Oxford Journal of Legal Studies 727
J Goudkamp, 'Litigation tourism: Suing in the UK in respect of torts committed in Australia' (2011) 107 Precedent 8
J Goudkamp, 'Recent Developments in the Statutory Illegality Defences' (2011) 7 Australian Civil Liability 121
J Goudkamp, 'Self-Defence and Illegality Under the Civil Liability Act 2002 (NSW) ' (2010) 18 Torts Law Journal 61
The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned. Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law. Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence.
J Goudkamp, 'Bad Character Evidence and Reprehensible Behaviour' (2008) 12 International Journal of Evidence and Proof 116
J Goudkamp, 'A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort' (2007) 29 Sydney Law Review 445 [...]
Although the defence of illegality to liability in tort has a chequered history throughout the common law world and has been trenchantly criticised by judges and academic commentators alike, the legislatures of New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have seen fit to enact, as part of their tort ‘reform’ packages, far more potent statutory analogues of this de fence. This article offers an analysis of these statutory defences and their relationship with the common law defence. It will be argued that the statutory defences blight an already highly unsatisfactory body of law.
J Goudkamp, 'Judicial Bias and the Doctrine of Waiver ' (2007) 26 Civil Justice Quarterly 310
J Goudkamp, 'Can Tort Law be Used to Deflect the Impact of Criminal Sanctions? The Role of the Illegality Defence' (2006) 14 Tort Law Journal 20
J Goudkamp, 'Negligence and Especially Capable Defendants: Does the Objective Standard of Care Cut Both Ways?' (2004) 12 Tort Law Review 111
J Goudkamp, 'Securing Access to Sunlight: The Role of Planning Law in New South Wales' (2004) 9 Australasian Journal of Natural Resources Law and Policy 59
J Goudkamp, 'The Spurious Relationship between Moral Blameworthiness and Liability for Negligence' (2004) 28 Melbourne University Law Review 342
J Goudkamp, 'Proportionate Liability in Building and Subdivision Cases' (2003) 8 Australasian Journal of Natural Resources Law and Policy 179
J Goudkamp, 'Is there a Future for Advocates' Immunity?' (2002) 10 Tort Law Review 188
E Peel and J Goudkamp, Winfield & Jolowicz on Tort (Sweet & Maxwell 2014)
The law of torts recognises many defences to liability. 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.
This chapter addresses the landmark decision in Gray v Thames Trains Ltd. Although it was decided in the twilight years of the House of Lords, it was the first occasion on which the House had considered at any length the doctrine of illegality in the tort setting. The precise scope of the rules laid down in Gray is somewhat uncertain, but it is clear that they are the starting point for thinking about how the doctrine applies in negligence cases. Considering the growing significance of the doctrine in this area, Gray is, therefore, an important case. The goal of this chapter is to explore it generally, focusing on Lord Hoffman’s speech, which is the principal opinion. It takes account of how Gray has been understood by subsequent decisions. It will be argued that the Gray, owing to Lord Hoffmann’s speech, brought about a significant improvement in the law (for which there was much scope). However, it will also be contended that the reasons given by Lord Hoffmann for embracing the rules that he laid down are suspect in certain respects, and that there are grounds for thinking that those rules can be improved. Finally, it will be contended that Gray has been marginalised somewhat by two subsequent decisions at the highest level, namely, Stone & Rolls Ltd v Moore Stephens and Hounga v Allen, and that its status is therefore open to some doubt.
This chapter is an introduction to an edited collection on “Defences in Tort”, which is the first in a series of collections investigating defences in private law. 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.
J Goudkamp, 'General Defences' in K Oliphant (ed), The Law of Torts (LexisNexis 2015)
J Goudkamp and Lorenz Mayr, 'The Doctrine of Illegality and Interference with Chattels' in A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Tort (Hart Publishing 2015) [...]
The doctrine of illegality is now in vogue as an answer to liability in tort. 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. The doctrine’s role in other situations within tort law has been neglected. 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. 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.
Tort law and the criminal law are often considered to be profoundly distinct branches of the law. For example, Jules Coleman contends that ‘[t]he differences between torts and the criminal law are so fundamental that the net result of applying one’s understanding of the criminal law to torts is bad philosophy and total confusion’. 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.
J Goudkamp and Charles Mitchell, 'Denials and Defences in the Law of Unjust Enrichment' in Charles Mitchell and William Swadling (eds), The Restatement Third, Restitution and Unjust Enrichment: Comparative and Critical Essays (Hart Publishing 2013)
J Goudkamp, 'Rethinking Contributory Negligence' in Erika Chamberlain, Jason Neyers and Stephen Pitel (eds), Challenging Orthodoxy in Tort Law (Hart Publishing 2013)
J Goudkamp, 'Defences to Intentional Torts to the Person' in J Murphy and C Witting (eds), Street on Torts (Oxford University Press 2012)
J Goudkamp, 'Defences to Negligence' in J Murphy and C Witting (eds), Street on Torts (Oxford University Press 2012)
J Goudkamp, 'Statutes and Tort Defences' in Jenny Steele and TT Arvind (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing 2012)
J Goudkamp, 'A Taxonomy of Tort Law Defences' in S Degeling, J Edelman and J Goudkamp (eds), Torts in Commercial Law (Lawbook Co 2011)
J Goudkamp, 'Defences to Negligence' in Carolyn Sappideen and Prue Vines (eds), Fleming on the Law of Torts (Lawbook Co 2011)
J Edelman, J Goudkamp and S Degeling, 'The Foundations of Torts in Commercial Law' in Torts in Commercial Law (Lawbook Co 2011)
A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Tort (Hart Publishing 2015)
A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Unjust Enrichment (Hart Publishing 2015)
S Degeling, J Edelman and J Goudkamp (eds), Torts in Commercial Law (Lawbook Co 2011)
Mimi Zou and J Goudkamp, 'Hounga v Allen' (2015) 29 Journal of Immigration, Asylum and Nationality Law 56
J Goudkamp and Mimi Zou, 'The Defence of Illegality in Tort: Beyond Judicial Redemption?' (2015) 74 Cambridge Law Journal 13
J Goudkamp, 'The Defence of Illegality in Tort Law: Wither the Rule in Pitts v Hunt?' (2012) Cambridge Law Journal 481
J Goudkamp, 'Contributory Negligence and Trespass to the Person' (2011) 27 Law Quarterly Review 518
J Goudkamp, 'Ex Turpi Causa and Immoral Behaviour in Tort Law' (2011) 27 Law Quarterly Review 354
J Goudkamp, 'The Illegality Defence in the Law of Negligence after Miller v Miller' (2011) 7 Australian Civil Liability 130
J Goudkamp, 'Negligence and Defendants with Special Skills' (2010) Cambridge Law Journal 8
J Goudkamp, 'Apparent Bias: Helow v Secretary of State for the Home Department' (2009) 28 Civil Justice Quarterly 183
J Goudkamp, 'The Defence of Illegality: Gray v Thames Trains Ltd' (2009) 17 Torts Law Journal 205
J Goudkamp, 'Facing up to Actual Bias' (2008) 27 Civil Justice Quarterly 32
J Goudkamp, 'When is a Risk of Injury Foreseeable' (2008) 124 Law Quarterly Review 37
J Goudkamp, 'Delay in Commencing Proceedings within the Limitation Period in Australia' (2007) 26 Civil Justice Quarterly 185
J Goudkamp, 'Litigation Privilege: Timeless or Transient? Blank v Canada (Minister of Justice) ' (2007) 11 International Journal of Evidence and Proof 322
J Goudkamp, 'Michael Kirby: Paradoxes & Principles' (2012) University of Western Australia Law Review
A conference entitled Defences in Unjust Enrichment was held in All Souls College on 9 and 10 January 2015 […]
Research: Tort law; law of obligations; civil procedure; commercial law; criminal law