James Goudkamp

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.

This book is the third in a series of essay collections on defences in private law. It addresses defences to liability arising in contract. The essays range from those adopting a predominantly black-letter approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of contract law generally. One goal of the book is to determine what light can be shed on contract law doctrines by analysing them through the lens of defences. Many scholars are unaccustomed to thinking of defences to contract law and so fresh light is shed on an old topic. The essays make several original contributions to this complex, important but neglected field of academic enquiry. The contributors – judges and academics – are all leading jurists. The essays are addressed to all of the major common law jurisdictions. - See more at: http://www.bloomsburyprofessional.com/uk/defences-in-contract-9781509902132/#sthash.XlMSQNyQ.dpuf

This book is the first in a series of essay collections on defences in private law. It addresses defences to liability arising in tort. The essays range from those adopting a primarily doctrinal approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of tort law as a whole. A number of the essays also draw upon concepts and literature that have been developed mainly in relation to the criminal law and consider their application to tort law. The essays make several original contributions to this complex, important but neglected field of academic enquiry.

This chapter addresses 10 misconceptions regarding punitive damages. In 2001, Lord Nicholls said that punitive damages ‘ are a controversial topic, and have been so for many years’. As we shall see, some of the misconceptions discussed in this chapter have contributed to the controversies that surround the award of punitive damages, and our overall assessment is that punitive damages have often been seriously misunderstood by both the courts and commentators alike. Unless and until basic misapprehensions regarding punitive damages are corrected, judicial and academic analyses regarding punitive damages are destined to remain mired in confusion and reform eff orts are likely to be misguided. Our concern is ultimately with the English law of punitive damages although we periodically touch on the law elsewhere.

Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.

This article, written in honour and celebration of Beverley McLachlin’s towering contributions to the common law, focuses on several decisions of the Supreme Court of Canada in the law of obligations. Those decisions, which will be taken in chronological order, are Norberg v. Wynrib, Hall v. Hebert and Bazley v. Curry. Each case has been chosen for discussion for substantially the same reasons. Each has received significant attention, including from judges sitting at the ultimate appellate level, in other major common law jurisdictions, and they are hence excellent vehicles for assessing the influence and importance of McLachlin’s jurisprudence overseas. Each comprises a substantial opinion by McLachlin, which opinions are all exemplars of the lucid, progressive and deliberate style that earned McLachlin recognition as one of the world’s most distinguished jurists. And all of the decisions are closely related to each other in so far as McLachlin’s vision of the law of obligations is concerned with the result that it is profitable to study them collectively.

In the Supreme Court’s landmark decision in Patel v Mirza, Lord Toulson observed that the law of illegality is widely regarded as ‘present[ing] serious problems’. But how many problems are there? The modest goal of this chapter is to identify the principal issues that are in contention in light of Patel. This is a worthwhile exercise in circumstances where no effort has previously been made systematically to isolate the key questions from each other. The hope is that enumerating the salient issues and showing why they are distinct from each other will enable scholars to make it clearer than has sometimes been the case to date with which of the many contested points in this field they are grappling.

The purpose of this chapter is to address five disagreements regarding exemplary damages and to suggest how they should be resolved. These disagreements are as follows. First, should exemplary damages be available as a remedy for breach of contract? Secondly, should the ‘categories test’ developed in Rookes v Barnard be retained? Thirdly, does the apportionment provision for contributory negligence apply to awards of exemplary damages, and should it apply to such awards? Fourthly, should a defendant ever incur vicarious liability in respect of exemplary damages? Fifthly, are exemplary damages masquerading as another form of damages? The analysis that follows seeks to shine new light on these areas of persistent difficulty. Despite the scale of the literature that exists in relation to exemplary damages, theorising in relation to all five of these debates has (it will be argued) gone awry.

If British lawmakers look to other jurisdictions for ideas as to how to reform tort law, it is not unlikely that they will turn their attention to Australia. Tort reform legislation swept across Australia at the start of the 21st Century. The purpose of this chapter is, therefore, to reflect upon what might be learned by British legislators from the Australian tort reform experience. It is hoped that this analysis might, in particular, assist legislators to understand, if they conclude that British tort law requires wider-scale statutory reforms than has occurred to date, which provisions in the Australian legislation might usefully be replicated or which at least deserve to be given serious consideration as a model for reform in Britain. It is also hoped that the analysis will help British legislators to appreciate which of the Australian provisions stand as nothing but warnings. Due to the small amount of space available only a handful of the Australian changes can be addressed. The analysis centres, therefore, on the most significant or interesting changes or those that seem to have the greatest prospect of being copied in Britain.

Since the fi rst wave of law-and-economics scholarship in the United States in the early 1970s, scholars have spent a tremendous amount of time trying to come to grips with tort law from a theoretical perspective. Richard Posner was on the crest of that wave, and his voluminous writings revolutionised how tort law is understood. He contended that tort law (as well as the law generally) is best explained on the ground that it maximises societal wealth. Posner, writing together with William Landes, asserted that ‘ the common law of torts ’ should be accounted for ‘ as if the judges who created the law through decisions operating as precedents in later cases were trying to promote effi cient resource allocation ’ . Many scholars, especially in the United States, remain in the thrall of Posner ’ s economic model.

When the legislature intrudes upon tort law, it tends to do so by way of changing the law governing defences. It has generally left that part of tort law that is concerned to define causes of action untouched. This chapter considers possible explanations for this striking focus. It then proceeds to categorise a range of different ways in which Parliament has legislated with respect to tort defences. Finally, the chapter explores several challenges posed by the legislative concentration on defences. These challenges include the risk that legislative defences will be overlooked in the sea of statutes, the role for judicial development of common law defences, the appropriateness of applying traditional principles of statutory interpretation to modern statutory defences, the problem of statutory obsolescence, and the analogical development of common law defences by reference to statutory developments.

The doctrine of contributory negligence is one of the most important rules in the law of torts, both in practical and in theoretical terms. It is significant for practical reasons because of the frequent and often powerful effect that it exerts on claims and litigation. The doctrine is of theoretical importance for several reasons, but primarily because it shows clearly that tort law is concerned not only with the quality of the defendant’s behaviour but also with the nature of the claimant’s conduct. Despite its significance, legal writers have shown relatively little interest in contributory negligence. Fairly modest progress has been made in terms of advancing our understanding in this connection since Williams published his seminal treatise Joint Torts and Contributory Negligence. That monograph, despite being over 60 years old and written when the apportionment legislation was in its infancy, remains by a significant margin the leading analysis in the field. Possibly as a result of the general juristic neglect of the doctrine of contributory negligence, many erroneous beliefs about it have flourished. The goal of this chapter is to identify and correct some of these mistakes. It will be argued that: 1. the traditional definition of the doctrine of contributory negligence is incomplete because it fails to account for the doctrine’s frequent exclusion for reasons of public policy; 2. contrary to widely held views, rules that specify the standard of care that defendants must achieve for the purposes of the tort of negligence should not be transplanted automatically to the contributory negligence context; 3. the doctrine of contributory negligence has often been conflated with various other rules including the defence of voluntary assumption of risk, the defence of illegality, the mitigation of damage principle and the doctrine of provocation; 4. in contrast with what some writers believe, post-tort fault on the part of the claimant should not result in, or be relevant to, the apportionment of damages; 5. the doctrine of contributory negligence is part of the law of remedies and not, as is widely thought, the law of liability; 6. scholars’ concentration on the direct effect of the apportionment legislation has meant that they have failed to notice the legislation’s significant indirect effects on many facets of the law of torts; 7. serious confusion exists as to the permissibility of apportioning responsibility in certain ways; and 8. in opposition to the views of some writers, the apportionment legislation does not apply, and should not apply, to awards of exemplary damages.

P. S. Atiyah was one of the great legal scholars of the twentieth century. The law of torts (especially in so far as that field concerns personal injury and death) and the law of contract were his principal interests, and he made immense contributions to those areas. His research also encompassed legal history and legal institutions. His most important works include Accidents, Compensation and the Law, the first edition of which was published in 1970, and The Rise and Fall of Freedom of Contract, which was published in 1979.

This article addresses the law governing claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits serious consideration as an alternative to the significantly more complicated principles that common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

For the most part, English law approaches liability for damage resulting from pharmaceutical products in the same way as it does liability for damage caused by any other product. With some minor exceptions, which will be discussed below, no special rules of civil liability exist in this area, although that is not to say, of course, that significant legal issues are not posed by the pharmaceutical context. The purpose of this article is to sketch the central features of the relevant English law and to consider how they apply to claims in respect of damage caused by pharmaceutical products.

Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the results of our study can be found in James Goudkamp and Donal Nolan, “Contributory Negligence in the Court of Appeal: An Empirical Study” (2017) 37 Legal Studies (forthcoming). This study builds upon an earlier exploration of the handling of the contributory negligence doctrine at first instance: James Goudkamp and Donal Nolan, “Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions” (2016) 79 Modern Law Review 575.

Rapid changes to employment practices and structures have tested and will continue to test the limits of liability in tort law. To date, much of this pressure has been applied to the principles governing vicarious liability. That corner of tort law has undergone significant development in response to, for example, the increasing sophistication of many employees and a growing tendency of businesses to outsource work. One important recent change is that vicarious liability can now arise in the absence of a relationship of employment. An relationship that is akin to employment may suffice. Another noteworthy change concerns the recognition of so called ‘dual vicarious liability’, pursuant to which more than one defendant can incur vicarious liability for a tortfeasor’s wrong. These and related developments are reactions to the changing way in which work is being done in the modern world. They are the result of the courts’ efforts to ensure that the law of vicarious liability produces outcomes that are thought fair and just to contemporary eyes. Another part of tort law that has come under significant pressure on account of shifts in employment structures concerns the duty of care element of the action in negligence. Increased outsourcing of work raises the question whether a company within a supply chain might owe a duty of care to employees of another company within the chain. It is this question with which this article is concerned. It is convenient to discuss it by way of the following paradigm scenario. Suppose that Company A requires certain goods for its business but, for one reason or another, it chooses to source them from Company B rather than to fabricate them itself. Company B tortiously injures one of its employees, Employee. If Employee cannot obtain an effective remedy from Company B for some reason (say, because Company B is insolvent, been wound up, or is without liability insurance, Employee may look to Company A for redress). A claim by Employee against Company A is likely to be confronted with numerous difficulties. However, a key issue in any such claim will be whether Company A owed Employee a duty of care. What are the prospects of a duty being owed in this scenario? This question has arisen for determination by the courts in some other jurisdictions and has received a certain amount of academic scrutiny. However, the issue has never been considered by an English court. It has not been the subject of sustained analysis in this country either. This article fills this gap.

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to both concurrent and non-concurrent contractual actions that are based on a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

The law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. It is argued that most existing learning on this point is contaminated with serious confusion. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence.

Given the undoubted and immense significance of the apportionment legislation, it is surprising how little is known about the process of apportionment, both as a matter of theory and practice. The subject rarely has been addressed in the literature and certainly not at any length. Scholars usually simply identify the factors that judges take into account in determining the extent to which damages should be reduced. It is widely accepted throughout the common law world that one relevant factor in this regard is the parties’ relative blameworthiness. This criterion requires consideration of the extent to which each party took less care than the reasonable person in their position would have taken. The purpose of this article is to assess the merits of an additional criterion that is also relevant in many jurisdictions: the causal potency of the parties’ respective acts. It will be argued that this criterion should never have been adopted. It is at best a mere surplusage. At worst it is an unwelcome distraction which provokes barren disputes and which increases the already considerable uncertainty that afflicts the process of apportioning damages for contributory negligence.

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavour to account for tort law in at least the major common law jurisdictions, or even throughout the common law world. These include Ernest Weinrib’s corrective justice theory, Robert Stevens’s rights theory, and Richard Posner’s economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law, which is an important feature of these theories that has not hitherto been properly appreciated. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. While each of the theories contains a great many valuable insights, they nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant”.

On 18 and 19 December 2015 UNSW Law will host a conference entitled Contracts in Commercial Law. Full details regarding the conference are available at the conference website. The conference, which is sponsored by Allens and Linklaters, will consider timeless and emerging problems in the law of contract. It will bring together judges, academics, and practitioners who are leading experts on contract law in order to explain and debate these problems. As we discuss below, the speakers include some of the most distinguished legal thinkers from Australia, Canada, United Kingdom, New Zealand and Singapore.

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.

Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law’s liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane. This result should be realized by providing for a generally applicable affirmative defence of insanity.

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.

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 defence. 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.

The suggestion that persons convicted of criminal offences could obtain compensation or indemnity in tort in respect of penalties imposed by the criminal law would undoubtedly strike most people as bizarre and abhorrent. However, in recent years, an increasing number of actions have been brought seeking to do just this. While these actions have generally been unsuccessful as a result of the application of the illegality defence, the courts have failed to properly articulate the public policy considerations which support and militate against the invocation of this defence in this context. This article explores these considerations and concludes that sanction-shifting actions may be permissible in limited circumstances.

Although access to sunlight is highly prized by landowners, this interest is atIorded extremely limited protection by the common law. Indeed, the common law has been accused of stagnating and failing to keep reasonably abreast of the developing needs of society in this connection. However, to an extent, the limitations of the common law have been compensated for by planning law. This article examines the contribution of planning law in New South Wales to the problem of sohir access and offers some proposals for reform.

Despite 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.

Despite 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. ‘This concise book … will assist courts and practitioners in understanding this area of the law, and in applying a consistent approach when assessing, in the most common types of case, the extent to which damages should be reduced for contributory negligence. It is greatly to be welcomed.’ The Rt Hon Lord Reed

Winfield & Jolowicz is a leading textbook on the law of tort and a definitive, all embracing guide to the subject. Though centred firmly on English law, Winfield & Jolowicz continues to follow significant developments in other major Commonwealth countries and, where appropriate, European systems of tort law.

Recent years have witnessed a surge of interest in the historical foundations of tort law. In 2014, Paul Mitchell published his excellent A History of Tort Law 1900–1950. Now Mark Lunney has published A History of Australian Tort Law 1901–1945: England’s Obedient Servant? Lunney’s book is ultimately concerned to test the claim, which he regards as being received wisdom, that in the period between 1901 and 1945 Australian private law, and Australian tort law in particular, essentially mirrored that in England and that there was little evidence of Australian exceptionalism. Lunney takes the following remark of GW Paton (the Dean of Melbourne Law School) made in 1952 that ‘there are very few significant differences’ between English and Australian law as embodying the conventional view.

The majority reasons in Darnley concentrated on whether a duty of care was owed by the defendant trust to Mr Darnley. However, it is surprising that this was the Court’s focus given that it is, of course, very well established that hospitals owe a duty of care to their patients (which Mr Darnley was, or was closely analogous to, on account of his having presented himself at the A&E department for treatment despite his not having been admitted). The fact of the matter is that Darnley is not a duty of care case at all and the Court of Appeal erred in analysing it as such. There should not even have been any serious dispute between the parties as to whether a duty of care was owed considering that the case fell within a recognised duty category. Darnley, properly understood, is in fact a case concerned with the breach element of the action in negligence.

This case involved a claim for damages under Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 on account of the death of a man known as Mr Rohan Rupasinghe (“the deceased”). The deceased had died as a result of the defendant’s negligence. The claim under the 1976 Act was brought by deceased’s widow, Dr Kumari Rupasinghe.

In this group litigation, 126 claimants sought damages from Barclays Bank Plc (“the Bank”) in respect of alleged sexual assaults to which they were subjected by a doctor – Dr Gordon Bates – between 1968 and 1984. Most of the claimants were, at the time of the alleged assaults, applicants for employment with the Bank (the rest were existing employees). As part of the Bank’s recruitment process, applicants were required to attend a medical assessment, with Dr Bates having been nominated by the Bank to carry out the assessments for applicants from North East England. Dr Bates practised from a consulting room at his home, which is where the alleged sexual assaults took place. He died in 2009. A recent police investigation into the cases of 48 complainants found sufficient evidence to prosecute Dr Bates had he been alive. The Court had to determine, as a preliminary issue, whether the Bank was vicariously liable for assaults that Dr Bates allegedly committed. The Bank contended that Dr Bates was not an employee but an independent contractor and it was, therefore, not vicariously liable. The Bank also argued that Dr Bates was not performing a role for the Bank that was akin to employment.

In January 2015 the Supreme Court of the UK delivered its much-anticipated decision in Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] 2 All E.R. 635. The proceedings arose as a result of a failure by police services to intervene in time to prevent a woman from being murdered. The police had been advised of the identities of both the murderer and the victim. The overarching question in the case was whether the police owed the victim a duty of care. Standing in the way of the recognition of a duty of care was the decision of the House of Lords in Hill v Chief Constable of West Yorkshire [1989] A.C. 53; [1988] 2 All E.R. 238. The House held in that famous case that the police did not owe a duty of care to a woman who had been killed by the Yorkshire Ripper. Crucial to the decision in Hill was the fact that the woman was merely one of a vast number of the Ripper’s potential victims. A majority of the Supreme Court held in Michael that the Hill principle — the rule that the police do not owe victims of crime a duty of care — applies even when the identities of both the victim and the perpetrator are known to the police. Michael is obviously important for what *L.Q.R. 520 it says about the private law responsibilities of police officers. But the decision is of much wider significance. It arguably signals a major shift in the approach to determining when a duty of case exists generally.

The claimant, Ms Hounga, travelled to the United Kingdom from Nigeria in 2007. She was then aged around 14. Upon her arrival, the claimant was granted a visitor visa on the ground that her purpose for being in the United Kingdom was to see relatives. In fact, the claimant had intended to study and work illegally for the respondents, Mr and Mrs Allen. The claimant worked as an au pair for the respondents, who were complicit in the claimant's immigration offences, although they neither paid her nor, as promised, provided her with education. The respondents' treatment of the claimant was, on any measure, highly exploitative. It included physical abuse. Eventually, the claimant was dismissed from her employment, whereupon she brought several claims against the respondents, including a claim in the statutory tort of race discrimination with respect to her dismissal (s 4(2)(c) of the Race Relations Act 1976 (now s 39(2)(c) of the Equality Act 2010)). The Employment Tribunal upheld that claim. The respondents relied on the illegality defence but the Tribunal found that it was inapplicable. The respondents' appeal to the Employment Appeal Tribunal was dismissed. The Court of Appeal ([2012] IRLR 685) reversed the findings below, holding that the illegality defence applied because the discrimination was inextricably linked with the claimant's illegal conduct. The claimant appealed to the Supreme Court.

To say that the landmark decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd has presented problems that were unanticipated by its architects would be a significant understatement. Fairchild established, of course, that it was unnecessary for a claimant who had suffered indivisible damage on account of his being tortiously exposed to asbestos by several defendants to demonstrate that any one defendant was a but-for cause of the damage in order to recover compensation. It was sufficient for the claimant to establish that a given defendant had increased materially the risk of damage. Fairchild was, on any measure, a revolution in private law. It laid down an important exception to orthodox principles. The ultimate appellate court has been called on several times to address questions presented by Fairchild . This note is concerned with the latest installment in this saga: International Energy Group Ltd v Zurich Insurance Plc UK Branch . This important decision lays down significant rules regarding the liability of insurers of Fairchild defendants. Its financial impact will be enormous. It further increases the responsibility of insurers for tortiously caused asbestos-related diseases (such responsibility has, of course, already been vastly expanded beyond what insurers could have predicted at the time that they accepted premiums). It also raises fascinating questions about judicial methodology and the proper development of the common law. It is necessary to observe at the outset that the reasons delivered in Zurich are extraordinarily prolix. The judgment runs to a staggering 95 pages (comprising 211 paragraphs). Consequently, it has been necessary in this note to be selective in choosing aspects of the case on which to focus.

Comments on the Court of Appeal decision in Co-operative Group (CWS) Ltd v. Pritchard on whether the Law Reform (Contributory Negligence) Act 1945 permitted a reduction from a supermarket employee's full damages for the torts of assault and battery by the store manager on the ground that her behaviour, in belligerently confronting the manager after he refused consent for a day's leave, contributed to the loss. Considers whether apportionment should be available in the context of trespass to the person.

The civil liability legislation was a reaction to perceived inadequacies in the common law. Perhaps the most significant of these supposed shortcomings was its willingness to award compensation to plaintiffs injured while in breach of the criminal law. At the height of the 2001-2002 insurance crisis, media stories decrying the deficiencies of the common law in this respect were commonplace. This barrage of criticism led to the inclusion in the civil liability legislation in all jurisdictions except for Western Australia and Victoria of generally applicable illegality defences. The aim of this short article is to discuss the interpretation of these defences by the courts.4 In order to set the scene for the analysis that follows, some observations about the defences will first be made.

Discussions of the objective standard of care in the criminal law tend to focus on its treatment of incompetent defendants. Relatively little has been said about its application to defendants who are especially capable. This focus is understandable. For one thing, the incompetent are much more likely to fall short of this standard than the gifted. Another reason for this focus is that it is a greater philosophical challenge to justify holding the incompetent to the objective standard than those who have the capacity to meet it.

Gray v Thames Trains Ltd was the first occasion on which the House of Lords directly considered the defence of illegality to liability in tort. In it, the House recognised two versions of the defence. Then arrow version prevents damages from being recovered in respect of a criminal sanction imposed on the claimant. The wide version applies when the claimant caused his or her loss by committing an illegal act. The principal problem with the House’s decision is that it failed to realise that the wide version is indefensible. Gray is a wasted opportunity to give the illegality defence an appropriate scope.

Explains the test for foreseeability arising from the High Court of Australia ruling in Wyong Shire Council v Shirt that the consequence of negligence was foreseeable unless "far-fetched or fanciful" as a result of the negligent action and traces subsequent case law where this test was applied. Considers the narrowing of the application of the test, as being too hard on defendants, but criticises the failure of the courts in Australia to overrule it. Notes Australian legislation which could make it harder to prove negligent breach of duty cases.

Litigation privilege has become unfashionable. It is under attack on multiple fronts throughout the common law world. In the United Kingdom, perhaps the most notable inroad on the privilege is that made by the House of Lords in Re L (A Minor) (Police Investigation: Privilege). In that case it was held that the privilege is an incident of adversarial proceedings and that, consequently, it did not obtain in respect of material generated for the purposes of proceedings that were not predominantly adversarial in nature. There are signs that more radical restrictions are to come. In Three Rivers District Council v Governor and Company of the Bank of England (No. 6) Lord Scott of Foscote foreshadowed that a fundamental reconsideration of litigation privilege may be necessary?