Donal Nolan is Professor of Private Law in the University of Oxford and Francis Reynolds and Clarendon Fellow and Tutor in Law at Worcester College, Oxford. He was educated at Brasenose College, Oxford (BA and BCL) and was previously a Lecturer in Law at King's College London. He has taught tort, contract, international trade law, restitution and commercial law, and has been a Visiting Professor in the Universities of Florida and Trento. He is currently a Senior Fellow of the University of Melbourne, and a member of the International Advisory Panel for the American Law Institute's Restatement of the Law Fourth, Property. He is also one of the articles editors of the Modern Law Review.
Donal's research is focused primarily on the law of tort, and in particular on the law of negligence, the law of private nuisance and the interface between tort law and public law. He is currently undertaking an empirical analysis of the operation of the contributory negligence doctrine with Dr James Goudkamp. He has also written on a range of topics in contract law, including offer and acceptance, estoppel and termination for breach of contract. Recent publications include: 'Contributory Negligence in the Court of Appeal: An Empirical Study' (2017) 37 Legal Studies 437 (with James Goudkamp); 'A Public Law Tort: Understanding Misfeasance in Public Office' in Barker et al (eds), Private Law and Power (Hart Publishing, 2017); 'Rights, Damage and Loss' (2017) 37 OJLS 255; 'Contributory Negligence in the Twenty-First Century: An Empirical Study' (2016) 79 MLR 575 (with James Goudkamp); and 'Preventive Damages' (2016) 132 LQR 68.
Donal is a co-author of Lunney, Nolan and Oliphant, Tort Law: Text and Materials (OUP, 6th edn, 2017), and a contributor to Burrows (ed), Principles of the English Law of Obligations (OUP, 2015); Oliphant (ed), The Law of Tort (LexisNexis Butterworths, 3rd edn, 2015); Sappideen and Vines (eds), Fleming's The Law of Torts (Thomson Reuters (Professional) Australia, 10th edn, 2011); and Bridge (ed), Benjamin's Sale of Goods (Sweet & Maxwell, 10th edn, 2017) . He is also the co-editor of Rights and Private Law (Hart Publishing, 2012) and of OSCOLA, the Oxford University Standard for Citation of Legal Authorities.
Professor of Private Law
- A note discussing the decision of Hickinbottom J in Wilkes v DePuy International Ltd  EWHC 3096 (QB),  3 All ER 589.ISBN: 0023-933XTable of Contents 1: General introduction 2: Intentional interference with the person 3: Negligence - introduction 4: Breach of duty 5: Causation and scope of liability 6: Defences to negligence 7: Negligence: duty of care - psychiatric illness 8: Negligence: duty of care - economic loss 9: Negligence: duty of care - omissions and acts of third parties 10: Negligence: duty of care - public bodies 11: Special liability regimes 12: Nuisance and the rule in Rylands v Fletcher 13: Defamation 14: Privacy 15: Vicarious liability 16: Damages for personal injury 17: Death and damages 18: How tort worksISBN: 9780198745525DOI: 10.1093/ojls/gqw018This article is an exploration of the relationship between the concepts of rights, damage and loss. The focus of the analysis is on the law of negligence, though some of the claims have wider ramifications. The article is divided into three main sections: first, on the relationship between rights and damage; second, on the relationship between rights and loss; and third, on the relationship between damage and loss. In each section, a separate, but related, claim is made: (i) that a concept of damage is a necessary component of a plausible rights-based conception of negligence law; (ii) that a right not to suffer loss is conceptually impossible; and (iii) that damage and loss are fundamentally different concepts.ISBN: 1464-3820DOI: 10.1111/lest.12153In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine's operation in first instance courts. Our dataset comprised every appellate decision in which contributory negligence was an issue that was handed down during the study period and which we were able to access electronically. The most important findings include the fact that appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50%.ISBN: 1748-121XThis chapter provides a theoretical analysis of the tort of misfeasance in public office. The current vitality of the tort is attested to by the frequency with which it appears in the law reports, and by the spirited opposition which met a (subsequently abandoned) proposal by the Law Commission of England and Wales that the cause of action be abolished. However, although case law has clarified the scope and elements of the cause of action for misfeasance, academic commentary demonstrates that the underlying nature of the tort remains highly contested. In this chapter, I argue that misfeasance in public office is best understood as a distinctively public law tort, put forward a public law rationale for its recognition, and consider some analogous legal doctrines. I also critique two rival conceptions of the cause of action, which I call the ‘tort law’ conception and the ‘private law’ conception. Finally, I consider some practical implications of my analysis for the future development of the tort.ISBN: 9781509905997ISBN: 9 780414 063969A summary of an empirical analysis of contributory negligence case law in the Court of Appeal of England and Wales.ISBN: 0306-6479DOI: 10.1515/9783110547559-012A general summary of the product liability regimes in a number of European countries (including the UK), followed by discussion of three example product liability cases from a European perspective.ISBN: 978-3-11-054600-2DOI: 10.1111/1468-2230.12202In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions considered were: how often a defendant’s plea of contributory negligence was successful; and by how much a claimant’s damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant’s age; the claimant’s gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine’s operation.ISBN: 1468-2230A summary of an empirical analysis of contributory negligence case law in first instance courts in England and Wales.ISBN: 0306-6479This article is an examination of ‘preventive damages’, which is to say damages that are awarded to compensate a claimant for expenditure incurred to prevent anticipated damage arising from another’s wrongful conduct. The analysis is a tentative one, with the emphasis on identifying the problems and possible solutions to them, rather than putting forward firmly held views as to how cases of this kind should be resolved. The circumstances in which preventive damages can and should be available are considered, and a number of example cases that squarely raise this issue are discussed. In some of these cases, the argument for recovery seems stronger than in others. Consideration is also given to possible limitations on the recovery of preventive damages, such as a test of reasonableness of the expenditure. Finally, the conceptual difficulties posed by claims for preventive damages are highlighted and some possible doctrinal bases for their recovery are explored.ISBN: 0023-933XA review of Paul Mitchell, A History of Tort Law 1900-1950 (CUP, 2015).ISBN: 00211273ISBN: 9781405763448In this chapter, I examine the defence of statutory authority in the law of private nuisance. I argue that if we let our guard down, the de facto extension of the defence could put at risk the continued vitality of private nuisance as a cause of action. Recent developments in the law of private nuisance have threatened in effect to extend the defence of statutory authority to encompass the defendant’s compliance with regulatory regimes governing his activity, and at least some instances in which planning permission has been granted for the use of land causing the alleged nuisance. I argue that there are fundamental objections to these de facto extensions of statutory authority, and that they are inconsistent with core features or aspects of that defence. The core message of the chapter is summed up by Tony Weir’s characteristically pithy remark that ‘administrators cannot authorise torts’.ISBN: 978-1849465267ISBN: 9780198746232DOI: 10.1093/ojls/gqu019Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar  UKHL 41,  1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam  HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.ISBN: 0143-6503A note on the decision of the Court of Appeal in Taylor v A Novo (UK) Ltd  EWCA Civ 194,  QB 150.ISBN: 1746 6709A note on the decision of Turner J in Furnell v Flaherty (t/a Godstone Farm)  EWHC 377 (QB).ISBN: 0023-933XIn this article, I subject to critical review the orthodoxy that the “duty of care” is an essential component of the common law of negligence. I argue that the duty of care concept is obscuring understanding of negligence law and hindering its rational development. I therefore propose the “deconstruction” of duty, a process whereby the disparate issues currently subsumed under the duty umbrella are separated out and reclassified under the other components of the negligence enquiry, namely fault, damage, causation, remoteness and defences. I also argue that scepticism about the duty of care is not incompatible with a rights-based approach to negligence law, and that deconstructing duty would improve the quality of judicial reasoning in negligence cases, give a sharper edge to scholarship in the field, and improve the understanding of those coming to negligence law for the first time.ISBN: 0023-933XDOI: 10.1515/jetl-2013-0018Although foundational to the tort law of both common law and civil law countries, the concept of damage has been the object of surprisingly little analysis by academics in the common law world. The aim of this article is to redress the balance somewhat by looking more closely at the meaning of damage in the English law of negligence. The first part of the article consists of general observations on the damage concept. It is argued that it is impossible to devise a meaningful general definition of damage, that damage is not the same thing as loss, and that the damage concept is compatible with rights-based analysis of negligence law. The remainder of the article is devoted to consideration of the two most common forms of damage, personal injury and physical damage to property. It is argued that a central idea underpinning both these routine forms of damage is that of 'impairment', and that both forms of damage are subject to de minimis principles. As regards personal injury, particular attention is paid to the forms of psychiatric injury which ground a negligence claim. Finally, it is argued that for property to be damaged there must be a physical change in the property which impairs its utility or value, and that merely to incapacitate property is not to damage it. Although the primary focus is on English law (and the common law more generally), some comparative observations are made.ISBN: 1868-9620DOI: 10.1111/1468-2230.12013A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.ISBN: 0026-7961DOI: 10.1515/jetl-2013-0014In the wake of the global financial crisis, this article considers the tort liability of financial supervisory authorities to depositors and other investors following the failure of a bank or other financial institution. The analysis is comparative, with the primary focus being on the member states of the European Union. Consideration is given to the five liability categories or standards which are employed by EU member states in such cases. These are (1) a public law illegality standard; (2) a standard of ordinary fault/negligence; (3) a standard of gross fault/negligence; (4) a requirement of bad faith; and (5) complete immunity from liability. It is also shown that on the application of general tort principles claims by depositors against financial supervisors face a range of obstacles, including difficulties in establishing fault and causation, and conceptual difficulties based on the nature of the damage (the pure economic loss issue), liability for omissions and for the deliberate acts of third parties, liability for the exercise of judicial or quasi-judicial functions, and the protective purpose of the norm principle. Finally, consideration is given to alternative means of redress which may be available to depositors in such cases.ISBN: 1868-9612A summary (with commentary) of tort cases reported in the All England Law Reports in 2012.ISBN: 9781405778503DOI: 10.1093/acprof:oso/9780199661770.003.0017ISBN: 978-0-19-966177-0DOI: 10.1017/S0008197313000731This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?ISBN: 0008-1973A review of Stephen Girvin, Carriage of Goods by Sea, 2nd edn (OUP 2011).ISBN: 0023-933XDOI: 10.1093/indlaw/dws027A review of Douglas Brodie, Enterprise Liability and the Common Law (CUP 2010).ISBN: 0305-9332The Oxford University Standard for Citation of Legal Authorities is designed to facilitate accurate citation of authorities, legislation, and other legal materials. It is widely used in law schools and by journal and book publishers in the UK and beyond.ISBN: 9781849463676This chapter is a historical analysis of the Fatal Accidents Act 1846, which for the first time gave the relatives of a person who had been wrongfully killed a right to compensation from the wrongdoer. I argue that criticisms of the 1846 Act are largely groundless, and that giving the relatives of the deceased claims in tort was a pragmatic and rational response to the problem of wrongful death in the mid-nineteenth century. Furthermore, I argue that from the standpoint of legal analysis, the formula for recovery employed in the legislation was appropriate and effective, and that the legislation was a progressive measure, which had beneficial social effects. It is shown that the immediate catalyst for the legislation was the desire to protect the interests of the families of those who perished in mining accidents, and more generally it is argued that the passage of the Act was motivated by the humanitarian desire to reduce the incidence of fatal accidents and to make provision for those affected by them when they did occur. I conclude that the advent of the wrongful death action was an important and welcome development in the law of tort, which was appropriately brought about through legislative intervention.ISBN: 9781849461405A summary (with commentary) of tort cases reported in the All England Law Reports in 2011.The thesis of this chapter is that private nuisance can only properly be understood as a tort which protects rights in land, and that, understood in this way, it is a thoroughly coherent cause of action. I begin by introducing this ‘property tort analysis’ of private nuisance and by providing a definition of the tort. The bulk of the chapter is then devoted to showing that the central doctrines of private nuisance law are consistent with the property tort analysis. In the remainder of the chapter, I look at the relationship between private nuisance and trespass to land, identify some sources of confusion which have served to obscure the underlying coherence of private nuisance and consider the implications of the property tort analysis for the traditional distinction between property and obligations. I finish off by making some more general observations about the value of a rights-based analysis of private law.ISBN: 9781849461429This article examines the circumstances in which a public authority may be held liable in negligence for failing to confer a benefit. Close consideration is given to the implications of the decision in Gorringe v Calderdale MBC  UKHL 15,  1 WLR 1057 for the English law in this area, and the law after Gorringe is subjected to critical analysis. The article is divided into three main parts. In the first part, consideration is given to whether negligence liability for failure to confer a benefit can ever be based on the existence of a statutory duty or power imposed or conferred on a public authority defendant. In the second part, the focus changes to the application of ordinary private law principles to public authority defendants in cases involving failures to confer benefits. And in the third and final part, it is asked whether the current state of the law in this area is satisfactory.ISBN: 0023-933XISBN: 9780455218274DOI: 10.1017/CBO9780511920844.011The purpose of this chapter is to explore the different aspects of the relationship between the tort of private nuisance and the Human Rights Act 1998 (“HRA”). The chapter is divided into three main parts. In the first part, I consider the “vertical effect” of the HRA in environmental nuisance cases. In the second part of the chapter, I consider the relationship between the vertical effect of the HRA and the law of nuisance. In particular, I identify the advantages and disadvantages for a claimant of the two possible routes to redress, and the inter-relationship between the two types of claim when they arise on the same set of facts. And in the third and final part of the chapter, I consider the possible “horizontal effect” of the HRA on the law of nuisance itself, looking in particular at the standing rules and the statutory authority defence. I conclude that the horizontal effect of the HRA on the law of nuisance is likely to be very limited.ISBN: 9781107009325This chapter provides an overview of the relationship between rights and private law. The chapter is structured as follows: in part II, we examine the meaning of ‘rights’ (or ‘rights-based’) analysis of private law; in part III, we examine the meaning of the term ‘right’ in this context; in part IV, we explore the normative implications of rights-based theories of private law; part V is concerned with the relationship between rights and duties; part VI focuses on the relationship between rights-based analysis and liability rules which are not triggered by wrongs; in part VII, we look at the implications of the rights-based approach for private law remedies; part VIII is concerned with the relationship between rights-based and policy-based reasoning in private law; in part IX, we explain the relationship between rights-based theories and corrective justice; in part X, we explore the implications of rights analysis for the taxonomy of private law; and in part XI we consider the role of the state in a rights-based understanding of private law.ISBN: 97818494614291. Rights and Private Law Donal Nolan and Andrew Robertson 2. Rights in Private Law Peter Cane 3. Our Most Fundamental Rights Allan Beever 4. Social Purposes, Fundamental Rights and the Judicial Development of Private Law François du Bois 5. Rights and Other Things Robert Stevens 6. Beyond 'Right' and 'Duty': Lundstedt's Theory of Obligations TT Arvind 7. Of Rights Superstructural, Inchoate and Triangular: The Role of Rights in Blackstone's Commentaries Helge Dedek 8. Rule-Based Rights and Court-Ordered Rights Stephen A Smith 9. Rights and Responsibility in the Law of Torts John CP Goldberg and Benjamin C Zipursky 10. Damages and Rights Andrew Burrows 11. Explaining the Inexplicable? Four Manifestations of Abuse of Rights in English Law JW Neyers 12. Rights and the Basis of Tort Law Nicholas J McBride 13. Is the Role of Tort to Repair Wrongful Losses? Gregory C Keating 14. The Edges of Tort Law's Rights Roderick Bagshaw 15. Rights, Pluralism and the Duty of Care Andrew Robertson 16. 'A Tort Against Land': Private Nuisance as a Property Tort Donal Nolan 17. Private Nuisance Law: A Window on Substantive Justice Richard W Wright 18. Rights and Wrongs: An Introduction to the Wrongful Interference Actions Sarah Green 19. Misfeasance in a Public Office: A Justifiable Anomaly within the Rights-Based Approach? Erika Chamberlain 20. Unjust Enrichment, Rights and Value Ben McFarlane 21. Rights and Value in Rescission: Some Implications for Unjust Enrichment Elise BantISBN: 9781849461429A summary (with commentary) of tort cases reported in the All England Law Reports in 2010.ISBN: 9781405755726This chapter considers the landmark decision in Alcock v Chief Constable of South Yorkshire Police  1 AC 310 concerning liability for psychiatric injury, or ‘nervous shock’. In this chapter, I argue that Alcock was an essentially conservative decision, rather than the reactionary one which it is often assumed to have been, and hence that it is a landmark case not so much because it represented a significant change in the law’s direction, but because it codified or systematised what had come before. I also argue that the conservatism of Alcock was likely to have been influenced, not only by the facts of the case itself, but also by the large number of man-made disasters that occurred in the UK in the late 1980s, by developments in Australia and the United States, and by broader trends in English tort law. Finally, I critique the claim that in Alcock the House of Lords overstepped the proper limits of adjudication, and engaged in ‘judicial legislation’.ISBN: 9781849460033This chapter explores the application of the ‘offer and acceptance’ rules in contract formation to new modes of communication. The analysis is structured around the technologies under scrutiny, and the chapter is therefore divided into two main parts, the first dealing with contracts formed by email exchanges, and the second with contracts formed through websites. The discussion suggests that there may be rather less to the legal issues surrounding electronic commerce than has sometimes been suggested. I argue that while the proliferation of electronic commerce raises some interesting questions about the precise mechanics of contract formation by email and through websites, the offer and acceptance model is likely to prove sufficiently flexible to accommodate these new forms of communication without great difficulty. By reasoning from first principles, and by analogy with the rules governing older means of communication, the courts should prove well able to deal with the issues posed by offer and acceptance in the Electronic Age.ISBN: 9780199583706A review of Alan Davidson, The Law of Electronic Commerce (CUP 2009).ISBN: 03062945DOI: 10.1017/S0008197310000784Page v Smith  AC 155 was one of a series of landmark decisions of the House of Lords that concerned the extent of negligence liability under English law for the causing of psychiatric harm. Page was controversial when it was decided and hard to analyse, and has caused a range of difficulties in subsequent litigation. There have been suggestions that it should be reconsidered by the Supreme Court. The purpose of the present article is to provide a contemporary evaluation of the decision in Page and to review it with an eye to its possible overruling or modification. In the first half of the article we critically examine the original litigation, and in the second half we consider the impact the decision has had in subsequent cases. Throughout the article we draw upon the significant corpus of judicial and academic criticism which has built up around the decision. We conclude that Page should now be discarded, and replaced with clearer, more rational principles, and that in the meantime the courts should continue to distinguish Page where the circumstances are sufficiently different and its application would produce injustice.ISBN: 0008-1973A summary (with commentary) of tort cases reported in the All England Law Reports in 2009.In this chapter, I explore the relationship between causation and the “goals” of tort law. My contention is that it is impossible to understand or to resolve difficult questions concerning causation unless it is appreciated that these issues go to the heart of what tort law is about. The chapter is divided into three parts. In the first part, I consider the problem of causal indeterminacy in tort law by reference to the leading English cases on the subject. In the second part of the chapter I look at the loss of a chance theory, according to which some cases of causal indeterminacy in tort law can be resolved by re-characterising the claimant’s injury as the loss of a chance of avoiding injury, as opposed to the injury itself. And in the third and final part of the chapter, I look at the relationship between causal indeterminacy and the “goals” of deterrence and compensation. In particular, I argue that recent developments in the English law on causation are only explicable by reference to these two goals, and that they also underlie the push towards recovery for lost chances. I finish by identifying some of the drawbacks of modifying tort law in this way in response to instrumentalist concerns.ISBN: 9781841139098A summary (with commentary) of tort cases reported in the All England Law Reports in 2008.This chapter discusses the decision of the Court of Appeal in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, The Hong Kong Fir  2 QB 26, one of the most important English contract cases of the 20th century. In this analysis of the Hongkong Fir case I argue that close consideration of the case law, coupled with an appreciation of the historical background, reveals certain flaws in the current general understanding of the decision. In particular I argue, first, that the reasoning in the case was not as novel as has sometimes been suggested; secondly, that the most novel aspect of that reasoning (the suggestion that there was a third category of terms—later christened ‘innominate’ or ‘intermediate’ terms—alongside conditions and warranties) was not as central to the analysis as it is generally assumed to have been; and, thirdly, that another, very important, aspect of the reasoning in the case (the very strong connection between the rules governing discharge by frustration and discharge for breach) tends now to be overlooked.