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 University of Florida, the University of Trento and Sichuan University. He is a Senior Fellow of the University of Melbourne, a founding member of the World Tort Law Society, and an elected member of the American Law Institute (ALI). He is also a member of the International Advisory Panel for the ALI's Restatement of the Law Fourth, Property, and a member of the editorial committee 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 has recently undertaken a major empirical study of the operation of the contributory negligence doctrine with Professor 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: 'Injunctions' in Day and Worthington (eds), Challenging Private Law: Lord Sumption on the Supreme Court (Hart 2020); 'Pioneers, Consolidators and Iconoclasts: The Story of Tort Scholarship' (with James Goudkamp) and 'Sir Percy Winfield (1878-1953)', both in Goudkamp and Nolan (eds), Scholars of Tort Law (Hart 2019); 'Assumption of Responsibility: Four Questions' (2019) 72 CLP; 'The Duty of Care After Robinson v Chief Constable of West Yorkshire Police' in Clarry (ed), The UK Supreme Court Yearbook Volume 9: 2017-2018 Legal Year (Appellate Press 2019); 'The Essence of Private Nuisance' in McFarlane and Agnew (eds), Modern Studies in Property Law, Volume 10 (Hart 2019); 'Tort and Public Law: Overlapping Categories?' (2019) 135 LQR 172; and (with James Goudkamp) Contributory Negligence in the Twenty-First Century (OUP 2019) and Contributory Negligence: Principles and Practice (OUP 2018).
Donal is a co-author of Lunney, Nolan and Oliphant, Tort Law: Text and Materials (OUP, 6th edn, 2017) and Winfield & Jolowicz on Tort (Sweet & Maxwell, 20th edn, 2020), and a co-editor of Rights and Private Law (Hart 2012), Scholars of Tort Law (Hart 2019) and OSCOLA, the Oxford University Standard for Citation of Legal Authorities. He is also 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, 11th edn, 2020).
Professor of Private Law
- ISBN: 9781405763448An extended commentary on the decision of Mance J in Huyton SA v Peter Cremer Gmbh & Co  1 Lloyds Rep 620.ISBN: 1351-170XThis chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.ISBN: 9781509910571ISBN: 9780414080225Id: 12436This chapter is concerned with the availability of injunctions in nuisance cases following Coventry v Lawrence. In that case, the Supreme Court introduced a more flexible approach to the exercise of the discretion to refuse an injunction and significantly degraded the authority of the Court of Appeal decision in Shelfer v City of London Electric Lighting Co. I consider the previous case law and academic writing on the topic, as well as arguments for and against a radical reappraisal of the role of the injunction remedy. I also consider whether the more general shift away from the Shelfer criteria towards a broader discretion is to be welcomed, and which factors should be taken into account when that discretion is exercised. I conclude that while there are good reasons why injunctions should continue to be the default remedy in cases of continuing wrongs, the remedial flexibility signaled in Coventry is to be welcomed. I also argue that, in determining whether to issue an injunction, the courts should take into account at least three factors in addition to more well-established considerations: (1) the possibility that injunctive relief will incentivise the defendant to seek out alternative beneficial ameliorative measures; (2) whether the claimant’s motivation in litigating is primarily financial; and (3) the ease of assessing damages in lieu of an injunction on the facts.ISBN: 9781509934874Id: 12281ISBN: 9786555150896Id: 12282In this introductory chapter to the edited collection Scholars of Tort Law the editors provide an overview of the contributions made by the scholars discussed in the book and divide them into three categories: pioneers, consolidators and iconoclasts.ISBN: 9781509910571Id: 11136This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.ISBN: 9781509910571Id: 11137In this chapter I consider the implications of the Supreme Court’s decision in Robinson v Chief Constable of West Yorkshire Police for the duty of care question in negligence. I argue that the unequivocal rejection of the so-called Caparo three-stage test in Lord Reed’s leading judgment in Robinson amounts to a clear signal from the Supreme Court to courts at all levels that the test should no longer be used to determine the existence of a duty of care in any negligence case. I also argue that the approach to the duty question taken by Lord Reed is not only the best of the alternatives available, but the only approach that is consistent with common law method and the rule of law. The legal nature of the duty of care issue requires the courts to do as Lord Reed says they should, and to work with the relevant authorities to determine whether the case is covered by binding precedent, and, if not, to reason by analogy and by reference to relevant considerations in order to decide whether or not a duty of care is owed. I also seek to explain why exactly it is that general tests of duty, such as the Caparo test, inevitably fail. I conclude that the decision in Robinson has the potential to usher in a new era in the troubled history of the duty of care, one marked by greater transparency, predictability and consistency.ISBN: 978-1-911250-18-0Id: 11013Although contributory negligence is usually associated with accident cases, it is frequently pleaded by defendants who have been sued for negligence in the performance of their professional duties, and yet very little is known about the impact of the doctrine in professional negligence litigation. In this chapter, we seek to fill this gap, by means of both empirical and qualitative analysis of recent contributory negligence case law in the United Kingdom. This analysis suggests that there are certain distinctive features of the operation of the contributory negligence doctrine in the professional negligence context.ISBN: 9781509917501Id: 10489One meaning of the word ‘essence’ is the feature or set of features that defines a thing. My claim in this chapter is that the essence of the tort of private nuisance in this sense is interference with (or impairment of) the usability of the claimant’s land. Although this claim is merely a clarification of the orthodox definition or conception of the tort, the clarification turns out to be significant. Furthermore, while this central defining feature of private nuisance is well-established, it has been the subject of very little sustained analysis, and one of the aims of this chapter is to begin the task of plugging that gap. And finally, the orthodox conception of private nuisance has come under attack recently, and there is a danger that without a robust defence of it the coherence and utility of the tort will be compromised. In this chapter I seek to provide such a defence. The chapter is divided into three main parts. In the first part, I show how orthodox it is to define private nuisance by reference to interference with the use and enjoyment of land, seek to clarify this defining idea as concerned with the abstract usability of the land, and consider the implications of this analysis for the scope of the private nuisance action. In the second part, I summarise and then critique a recent challenge to the orthodox conception of the tort, which I call the ‘physical invasion’ view. And in the final part, I briefly consider some of the implications for property theory of the orthodox conception of private nuisance, properly understood.ISBN: 9781509921379Id: 10615ISBN: 9781474309486Id: 10051This 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: 9781509905997Id: 8390ISBN: 9 780414 063969Id: 9177DOI: 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: 978-3-11-054600-2Id: 9171ISBN: 9781405763448Id: 4248In 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: 978-1849465267Id: 4249ISBN: 9780198746232Id: 9180A summary (with commentary) of tort cases reported in the All England Law Reports in 2012.ISBN: 9781405778503Id: 4250DOI: 10.1093/acprof:oso/9780199661770.003.0017ISBN: 978-0-19-966177-0Id: 4251This 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: 9781849461405Id: 4253A summary (with commentary) of tort cases reported in the All England Law Reports in 2011.Id: 4254The 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: 9781849461429Id: 4255ISBN: 9780455218274Id: 4256DOI: 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: 9781107009325Id: 4257This 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: 9781849461429Id: 4252A summary (with commentary) of tort cases reported in the All England Law Reports in 2010.ISBN: 9781405755726Id: 4258This 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: 9781849460033Id: 4259This 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: 9780199583706Id: 4260A summary (with commentary) of tort cases reported in the All England Law Reports in 2009.Id: 4261In 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: 9781841139098Id: 4262A summary (with commentary) of tort cases reported in the All England Law Reports in 2008.Id: 4263This 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.ISBN: 9781841137599Id: 4264A summary (with commentary) of tort cases reported in the All England Law Reports in 2007.ISBN: 978-0-4057-2828-7Id: 4265ISBN: 9781405712408Id: 4266A summary (with commentary) of tort cases reported in the All England Law Reports in 2006.ISBN: 9781405725286Id: 4267A summary (with commentary) of tort cases reported in the All England Law Reports in 2005.ISBN: 1405714743Id: 4268A summary of, and critical commentary on, the tort cases published in the All England Law Reports in 2004.ISBN: 1-405-70360-1Id: 4269A summary of English case law developments in the law of tort in 2003.A summary (with commentary) of tort cases reported in the All England Law Reports in 2003.ISBN: 406965439Id: 4270A summary (with commentary) of tort cases reported in the All England Law Reports in 2002.ISBN: 406965439Id: 4271ISBN: 406896720Id: 4272A summary (with commentary) of tort cases reported in the All England Law Reports in 2001.ISBN: 406950423Id: 4273A summary (with commentary) of tort cases reported in the All England Law Reports in 2000.ISBN: 406940967Id: 4274A summary (with commentary) of tort cases reported in the All England Law Reports in 1999.Id: 4275DOI: 10.1093/indlaw/dwaa021ISBN: 1464-3669.Id: 12305A note discussing the decision of Hickinbottom J in Wilkes v DePuy International Ltd  EWHC 3096 (QB),  QB 627, which is now the leading case on the application of the Consumer Protection Act 1987 in the case of an alleged design defect. It is argued in the note that the approach taken by Hickinbottom J to the issue of defectiveness should be seen as complementing or supplementing the guidance given in A v National Blood Authority  3 All ER 289, and that taken together with that earlier decision – and provided that due attention is paid to the significance of the standard/non-standard product distinction that the facts of the two cases encapsulate – the decision in Wilkes represents a solid foundation for future analysis of that issue under the strict product liability regime laid down by the 1987 Act. .ISBN: 0023-933XId: 9822A note on the decision of the Court of Appeal in Taylor v A Novo (UK) Ltd  EWCA Civ 194,  QB 150.ISBN: 1746 6709Id: 4277A note on the decision of Turner J in Furnell v Flaherty (t/a Godstone Farm)  EWHC 377 (QB).ISBN: 0023-933XId: 4278A note on the decision of the House of Lords in Jolley v Sutton LBC  1 WLR 1082.ISBN: 1039-3285Id: 4279An extended commentary on the decision of Mance J in Huyton SA v Peter Cremer Gmbh & Co  1 Lloyds Rep 620.ISBN: 1351-170XId: 4280A note on the decision of the House of Lords in Reeves v Commissioner of Police of the Metropolis  1 AC 360.ISBN: 1039-3285Id: 4281Winfield & Jolowicz on Tort has been the leading work on the subject since the first edition was published over 80 years ago, and with the publication of this twentieth edition it continues to be a clear, authoritative and comprehensive guide to this area of law. It is widely adopted for use by students, an invaluable resource for practitioners, and regarded in other legal systems as providing a definitive account of the English law of tort. For this edition, the entire text has been thoroughly updated and several chapters have been extensively rewritten. New in this edition: Discussion of hundreds of recent cases, including Michael v Chief Constable of South Wales, Robinson v Chief Constable of West Yorkshire Police and Poole BC v GN (duty of care); Patel v Mirza (illegality); Wilkes v DePuy International (product liability); Lachaux v Independent Print Ltd (defamation); O v Rhodes (intentional infliction of physical or emotional harm); Willers v Joyce (malicious prosecution); JSC BTA Bank v Ablyazov (No.14) (conspiracy); and five major Supreme Court decisions on vicarious liability and non-delegable duties, including Barclays Bank v Various Claimants and WM Morrison Supermarkets v Various Claimants. A new section on damage in the law of negligence, incorporating discussion of Dryden v Johnson Matthey. Comprehensive coverage of new legislation, as well as the impact on existing legislation of the UK’s withdrawal from the European Union. More extensive citation of academic commentary. Trusted by generations of students and practitioners throughout the common law world, Winfield & Jolowicz on Tort remains the leading textbook on the English law of tort.ISBN: 9780414066212Id: 12258Despite the centrality of the contributory negligence doctrine in practice, almost nothing is known about how it functions in reality. The authors, seeking to fill this deficit in understanding, have undertaken a wide-ranging empirical study of how the doctrine is handled by the courts. They report their methodology and findings in this volume, framing their discussion within the law of contributory negligence. The study is based on 572 first instance decisions on contributory negligence from across the United Kingdom decided between 2000 and 2016, and 129 appellate decisions handed down in the same period. The analysis considers the operation of the contributory negligence doctrine at first instance and on appeal, and in a range of contextual settings, including road accidents, accidents at work, and professional negligence claims. The authors also consider how the study can be used to inform future developments in this area of law. Substantial appendices set out the key data on which the book is based, enabling academics to utilize the dataset in their own research and allowing practitioners to compare their cases easily with previously decided claims.ISBN: 9780198814245Id: 10601Despite the centrality of the contributory negligence doctrine in practice, very little is known about how it functions in reality. This volume provides legal practitioners with a one-stop-shop where they can find a clear and succinct exposition of the legal principles governing contributory negligence alongside an empirically informed analysis of the way that the doctrine operates in various recurrent factual scenarios, based on cases decided between 1998 and 2017. For each of the given recurring acts of contributory negligence, the average discount, the range of discounts, and the distribution of discounts are reported. These statistics are supplemented by way of illustrations drawn from the case law. Short summaries of typical cases for the relevant act of contributory negligence are given, along with summaries of cases that fall towards the higher and lower ends of the range of discounts.ISBN: 978019881423Id: 10347Table 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: 9780198745525Id: 8909The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.ISBN: 9781509910571Id: 111351. 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: 9781849461429Id: 4276DOI: 10.1093/clp/cuz002Although the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a distinct ground on which liability is imposed, or merely a foil for policy arguments – or for another, more general, test for the recognition of duties of care. Matters are complicated by the fact that assumption of responsibility does not fit neatly within the orthodox categories of ‘tort’ and ‘contract’, but hovers uncertainly between the two. The aim of this article is to try to bring some clarity to the controversies surrounding assumption of responsibility. Four questions frame the analysis. What does assumption of responsibility mean? When does it matter? Why do we need it? And where does it belong? Although the answers to some of these questions are necessarily tentative, at least one conclusion should become clear, namely that assumption of responsibility is a meaningful and distinctive basis on which to impose negligence liability.ISBN: 0070-1998Id: 11036This article explores the relationship between tort law and public law as legal categories. The principal argument of the article is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. I begin my analysis with the two tort doctrines that seem to me most clearly to fall within public law, namely the tort of misfeasance in public office and the availability of exemplary damages in cases of oppressive, arbitrary or unconstitutional action by servants of the government. I then go on to look at a more ambivalent doctrine, the tort of malicious prosecution. Finally, I consider the implications of conceiving of these various doctrines as part and parcel of public law, rather than private law. It follows from my analysis that there is no clear boundary between ‘tort law’ and ‘public law’, but rather a degree of overlap between the two categories. There are lessons here for both private lawyers and public lawyers. The lesson for private lawyers is that attempts to reconcile these doctrines with general private law principles are misguided. The lesson for public lawyers is that closer examination of these doctrines may further understanding of the nature and purposes of public law.ISBN: 0023-933XId: 10575DOI: 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: 1464-3820Id: 8021DOI: 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: 1748-121XId: 8568DOI: 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: 1468-2230Id: 7958This 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: 0023-933XId: 7401DOI: 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: 0143-6503Id: 4234In 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.