James Goudkamp

The 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 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. And 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.

This article reports and discusses the results of an empirical study of punitive damages. It examines 146 claims that were decided in all parts of the UK (save for Scotland, which does not recognise punitive damages) by first instance courts in the first sixteen years of the twenty-first century. The study is the first of its kind to be conducted in the UK. In the morass of data, important evidence is uncovered regarding punitive damages. This evidence supports certain widely-held views regarding punitive damages and casts doubt on others.

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

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.

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.

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.

The conventional understanding that the tort of negligence comprises discrete elements is being attacked by stealth, with the courts quietly but surely placing increased pressure on the distinctions that have been traditionally drawn between the tort’s ingredients. The recent decision of the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 is an important development in this regard in that it contributes significantly to the erosion of the customary divide between the duty of care and breach elements of the action in negligence. The consequence of that erosion is that cases that would previously have been understood as being breach cases are increasingly being treated as – and only as – duty cases. In short, contrary to the conventional structure of the tort of negligence, the breach element of the action is gradually disappearing.

In this article 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 per cent.

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.

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.

Recent years have witnessed a surge of litigation involving the following structure: (1) a subsidiary company tortiously injures a claimant, who may or may not be its employee; (2) for one reason or another, the claimant is unable to obtain redress (or unable conveniently to obtain full redress) from the subsidiary; (3) accordingly, the claimant seeks relief from another company that is within the same corporate group as the subsidiary, usually the ultimate parent company. Although it is not the first case in Britain to involve this pattern, the landmark decision in Chandler v Cape plc [2012] EWCA Civ 525; [2012] 1 W.L.R. 3111 is widely recognised as having opened the door to such claims. The claimant in Chandler had contracted mesothelioma due to the negligence of his employer, a subsidiary company. The employer had been wound up by the time that the disease manifested itself and so the claimant sought relief from his erstwhile employer’s parent company, which was still in existence. The case turned on whether the parent owed the employee a duty of care. The Court of Appeal unanimously held that the parent owed a duty owed the claimant a duty of care on the basis of the Caparo test. Chandler precipitated a stream of claims with essentially the same structure as Chandler, which claims have met with varying degrees of success (see, e.g., Thompson v The Renwick Group plc [2014] EWCA Civ 635; [2015] B.C.C. 855; Lungowe v Vedanta Resources plc [2016] EWHC 975 (TCC); [2016] B.C.C. 774; AAA v Unilever [2017] EWHC 371 (QB)). These decisions triggered a deluge of academic commentary (see, e.g., Sanger (2012) 71 C.L.J. 478; Petrin (2013) 76 M.L.R. 603; Day [2014] L.M.C.L.Q. 545; Witting and Rankin (2014) 22 Tort L. Rev. 91; Turner (2015) 33 C.&S.L.J. 45). The latest case of this stripe, and the subject of this note, is HRH Emere Godwin Bebe Okpabi v Royal Dutch Shell plc [2017] EWHC 89 (TCC), which is a significant development in this nascent area of the law.

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.

Compensatory damages are awarded to compensate the claimant for loss suffered. By contrast, punitive damages are awarded in order to punish the defendant for his or her contumelious disregard of the claimant’s rights and to deter the defendant and others like him or her from acting similarly in the future. This article summarises the results of an investigation into punitive damages (see ‘An Empirical Study of Punitive Damages’, James Goudkamp and Eleni Katsampouka (2018) Oxford Journal of Legal Studies (forthcoming)). The study, which is the first of its kind in the UK, uncovers important evidence regarding punitive damages. This evidence comports with certain widely held views regarding punitive damages and casts doubt on others.

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.

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.

The law of torts periodically spawns a new cause of action. For example, Wilkinson v Downton [1897] 2 QB 57 established the tort of wilful infringement of personal safety. The Protection from Harassment Act 1997 created the tort of harassment. Tort law sometimes also grows by absorbing a cause of action that was previously understood to pertain to another branch of the law. Thus, the action in breach of confidence, which was for centuries understood exclusively as a species of equitable wrongdoing, has been acknowledged, at least in cases that involve a breach of privacy as opposed to the divulgement of secret information, as a “tort” (see, e.g., Douglas v Hello! Ltd [2007] UKHL 21; [2008] 1 AC 1 [255] (Lord Nicholls)). The newest addition to the stable is the tort of malicious prosecution of civil proceedings. The Supreme Court recognised that action in its landmark decision in Willers v Joyce [2016] UKSC 43; [2016] 3 WLR 477. In doing so, the Court thereby gave the ancient tort of malicious prosecution of criminal proceedings a sibling. This article addresses the decision in Willers.

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.

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.

The recent decision of the High Court of Australia in Prince Alfred College v ADC is a landmark case in the law of vicarious liability. It is the first time in almost 14 years that the High Court has grappled in earnest with the second stage of the test for vicarious liability. This note observes that Prince Alfred College charts a far more restrictive course for the vicarious liability doctrine than has been followed by UK courts. It examines the different trajectories of the law in Australia and the UK and explores possible reasons for this difference.

This article addresses the Court of Appeal’s recent decision in Dunnage v Randall. Dunnage is a landmark ruling. It has ramifications for virtually every facet of the tort of negligence, including defences thereto. In particular, it has a bearing on the objective standard of care and the concept of involuntariness. The decision is perhaps particularly significant in relation to the latter given that law on involuntariness in tort is not particularly well developed. Dunnage also raises numerous pressing theoretical issues that are of considerable significance, including the nature of the relationship between tort law and the criminal law. Understanding Dunnage requires a tour of the action in negligence. It is argued in this article that: (1) the decision in Dunnage is contrary to authority that was binding on the Court; (2) the justifications that the Court offered in support of imposing a strict objective standard were inadequate; (3) the Court offered no compelling reason for excluding a lack of rational control from the scope of the involuntariness exception from liability; (4) that it was left unclear how the involuntariness exception operates within the structure of the action in negligence; and (5) that the Court missed a rare opportunity to consider whether a defence of insanity should be welcomed into tort law.

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.

In 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.

In 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.

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 second in a series of essay collections on defences in private law. It addresses defences to liability arising in unjust enrichment. The essays are written from a range of perspectives and methodologies. Some are doctrinal, others are theoretical, and several offer comparative insights. The most important defence in this area of the law, change of position, is addressed in detail, but many other defences are treated too, as well as the interrelations between these defences within the law of unjust enrichment. The essays offer novel claims and ways of looking at problems in this challenging area of legal study.

THIS BOOK IS the second in a series of four that is concerned with defences to liability arising in private law. We felt, and still feel, that the topic has not received the attention that it deserves. 1 We are not alone in holding this view. 2 By contrast, defences have dominated the research agendas of many scholars of the criminal law. 3 The asymmetry in attention to defences in these different fi elds is striking in part because of the apparent parallels between the two domains. For instance, the distinction in private law between causes of action and defences arguably mirrors that between offences and defences in the criminal law.

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.

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”.

The overarching aim of this chapter is to explore the reluctance of contract lawyers to think in terms of defences. The apparent opposition to terminology that is ubiquitous elsewhere in private law is, at least at first glance, a puzzling feature of contract law scholarship that merits attention. The analysis is in three parts. In Section II, we ask whether contract law has defences. We argue that, on three popular definitions of that term, there are defences to contract claims. This, combined with three further matters, which we canvass in Section III, explains what, specifically, is prima facie puzzling about the fact that contract lawyers do not think in terms of defences. Finally, in Section IV we address whether contract lawyers ought to speak in terms of defences. As a prelude to this analysis, we isolate a range of related questions that can be asked about defences. Considerable confusion, we believe, has flowed from a failure on the part of many theorists to be clear about the questions that they are asking. Having explained the question with which we are concerned, we offer reasons for and against using the language of defences in the contractual context.

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.

In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules.

Apportioning damages for contributory negligence is bread and butter work of trial courts throughout the United Kingdom. Both contributory negligence and apportionment are very frequently in issue in negligence cases and, when they are, they are often key points in dispute. It is relatively rare, however, for the law in this area to be dealt with at any length on appeal. There are various possible causes of this situation, one of which is the well-established principle that appellate courts should disturb findings of a trial judge in relation to contributory negligence or apportionment only where those findings are clearly wrong. Jackson v Murray is, therefore, an important case. It is the first occasion on which the Supreme Court has engaged with this part of the law other than in passing. The decision casts light on several issues in the law of contributory negligence and apportionment. It also raises some questions.

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.

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.

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.

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.

IN Hounga v Allen [2014] UKSC 47; [2014] W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

This article offers an analysis of the decisions of the United Kingdom Supreme Court in Hounga v Allen, Les Laboratoires Servier v Apotex Inc and Jetivia SA v Bilta (UK) Limited (in liquidation). It seeks to understand the reasons given in those cases and their implications. It will be argued that the law in this area poses, partly as a result of this trilogy of cases, significant threats to the rule of law. Consideration is given to how these threats should be headed off.

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.

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.

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.

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.

In this chapter we argue that the rules governing the imposition of liability for unjust enrichment can be reduced to two categories. There are rules that define the elements of an action in unjust enrichment, and there are rules that specify situations in which liability will not arise, or will not arise in full, even though all of the elements of an action can be established. If this is correct, then it follows that there are two and only two types of response that a defendant can legitimately make with a view to avoiding or limiting his liability in unjust enrichment. He can argue that the claimant has failed to establish an element of his action. Or he can admit that the claimant has established all of the elements of his action but invoke a rule that wholly or partly exempts him from liability nonetheless. We term these responses ‘denials’ and ‘defences’ respectively. We then proceed to consider some possible rationales for dividing the liability rules in unjust enrichment between actions and defences. Finally, we examine whether certain of the defendant’s responses identified in Chapter 8 of the Restatement Third: Restitution and Unjust Enrichment, which is entitled ‘Defenses to Restitution’ and elsewhere in the Restatement are denials or defences. The analysis in this regard is descriptive rather than normative. Our aim is to determine how the responses under review should be classified in light of their presentation in the Restatement. We do not take a position on the normative issue of how particular responses ought to operate. That issue is best addressed once the descriptive analysis that we undertake here has been completed.

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.

There are at least four types of actions in tort to which the defence of illegality might be relevant. First, there are cases in which the loss about which the claimant complains is a criminal law sanction imposed upon him (e.g., Clunis v Camden and Islington HA [1998] Q.B. 978). Secondly, there are actions in which the claimant seeks redress in respect of lost illegal earnings (e.g., Hewison v Meridian Shipping Pte Ltd [2002] EWCA Civ 1821, [2003] I.C.R. 766). Thirdly, there are proceedings in which the claimant, when he was injured, was committing a criminal offence unilaterally, that is, an offence in which the defendant was not implicated (e.g., Vellino v CC of Greater Manchester [2001] EWCA Civ 1249, [2002] 1 W.L.R. 218). Lastly, and most importantly as a practical matter, there are cases in which the parties were engaged in a joint illegal enterprise when the claimant was hurt.

This article addresses the Young Report, which is an important recent response to Britain's putative ‘compensation culture’. This report is examined with reference to the far-reaching reforms of tort law that occurred in Australia at the start of the twenty-first century. The analysis reveals that while there are certain similarities in the way in which tort law has been reformed in Australia and Britain, the reform experience in these jurisdictions has been quite different. The main difference is that attention in Britain has centred on the system of procedure by which tort law is administered whereas in Australia the focus has been on the substantive law, including the law governing the assessment of damages. A possible reason for this divergence has to do with differences in political ideology.

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.

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.

Discusses uncertainty surrounding the scope of ex turpi causa in terms of immoral behaviour in the context of tort of the Queen's Bench Division rulings in: (1) Nayyar v Denton Wilde Sapte relating to the role of a solicitor, advising in a personal capacity a consortium of travel agents which paid an unrewarded bribe to an Indian official in order to secure rights to sell Air India flight tickets in the UK; and (2) Safeway Stores Ltd v Twigger on whether a damages claim by a company subject to an anti-competitive practices finding against directors and employees allegedly responsible for those practices should be struck out under the Competition Act 1998.

This is a book review of AJ Brown, Michael Kirby: Paradoxes & Principles (2011). The central thesis that Professor Brown develops in the biography, which is encapsulated in its subtitle, is that Kirby is committed to a range of principles that are inconsistent with each other, or at least do not sit together comfortably. This review engages with this thesis and offer some remarks about the book based on the reviewer’s experience as one of Kirby’s judicial associates.

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.

This articles is a prelude to the presentations that will be delivered at the conference Contract in Commercial Law. It canvasses flashpoints in modern contract law. Themes addresses include the interpretation and rectification, good faith, illegality, the penalties doctrine and remedies.

In 1991, the High Court delivered judgment in Gala v Preston. This landmark case concerned the defence of illegality to liability arising in the tort of negligence. It established that parties to a joint illegal enterprise do not owe duties of care inter se if the nature of the enterprise is such that it would be "impossible" or not "feasible" to ask how the reasonable person would have acted in their circumstances. The High Court recently reconsidered the defence in Miller v Miller. This was the first opportunity since Gala that the court has had to address this defence directly. The High Court replaced the principle in Gala with a test based on the legislature's purpose in creating the offence that the plaintiff committed. This article delineates that approach and identifies some difficulties with it.

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.

The Civil Liability Act 2002 (NSW) provides for a number of defences to liability. This article seeks to add to our understanding of two of these defences: ‘self-defence’ and ‘illegality’. It is argued that although these defences may seem to have relatively little to do with each other, there are important connections between them. An examination of the circumstances in which they apply is also undertaken. This analysis demonstrates that the enactment of these defences was a step in the wrong direction.

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.

Appraises the House of Lords judgment in Helow v Secretary of State for the Home Department, reported as Helow v Advocate General for Scotland, on whether a judicial decision was tainted by apparent bias. Considers the Court's decisions on: (1) whether inactive membership of an association implied support of the association's views; (2) whether the non-disclosure of such membership by a judge would create an appearance of bias; and (3) the qualities of the fictitious and fair-minded observer. Considers the pros and cons of attributing the observer with judicial sensibilities.

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.

The Criminal Justice Act 2003 ushered in a new system for determining the admissibility of bad character evidence in criminal proceedings. Unfortunately, this system is riddled with anomalies and plagued by obscurity. These problems contaminate its core as it is unclear what constitutes 'bad character' evidence. This uncertainty is in large part due to the fact that the Act offers little clue as to the meaning of the words 'reprehensible behaviour', evidence of which is 'bad character' evidence. Accordingly, this article asks whether the decisions in which the expression 'reprehensible behaviour' has fallen for consideration shed light on its content. It is concluded that the authorities offer scant guidance and have introduced several difficulties.

Discusses the reluctance of the courts to consider allegations of actual bias against judges. Outlines the different types of bias which may be alleged and explains that allegations of actual, rather than apparent or presumed bias, are relatively rare. Suggests reasons why this might be the case, including the fact that it is easier to prove apparent bias and that legal representatives may be wary of alienating a judge. Criticises the reasons given by the House of Lords in R v Gough (Robert) for the courts' discouragement of allegations of actual bias.

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.

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.

Discusses the High Court of Australia decision in Batistatos v. Roads and Traffic Authority of New South Wales on whether pre-issue delay by a claimant could constitute an abuse of process leading to the striking out of proceedings once issued, even when issued within the limitation period. Notes the court's approach to the purpose and effect of a limitation period. Questions the public benefit and balance of prejudice between claimant and defendant in the court's decision. Compares the court's approach with attitudes to delay in the English courts.

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?

In recent years, the courts in many jurisdictions have frequently been called upon to consider the right to an impartial tribunal. In doing so, the courts have had cause to examine the circumstances in which this right may be waived. This article offers an analysis of the doctrine of waiver as it operates in this context. It also sets out the arguments that support and militate against its application. It is argued that, contrary to the position which the law presently adopts, the presence of the doctrine in this setting is misconceived. The right to an impartial tribunal exists principally for the purpose of upholding public confidence in the administration of justice. Permitting individual litigants to waive this right impedes the realisation of this objective.

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.

The objective standard of care is probably the most familiar feature of the tort of negligence. The reasonable person, who sets the benchmark for this standard, is a well-known acquaintance of all lawyers. However, notwithstanding the centrality of the objective standard in the negligence equation, some issues remain largely unexplored. One intriguing question that has received little attention is whether the standard exonerates especially capable individuals who met the reasonable person test but who could have performed better. For instance, assume that a patient suffers injury as a result of a bungled medical procedure, and that the surgeon, who is especially gifted, met the standard of the reasonable surgeon, but failed to exercise his or her surgical skills to his or her full potential. Had the surgeon lived up to his or her potential, the injury to the patient would have been avoided. Would a defendant in such a case be released from liability? In other words, does the objective standard permit extraordinarily capable people to ‘live down’ to the level of the reasonable person? This note argues that the despite a dearth of authority, it seems likely that the objective standard of care probably applies to people of substandard and extraordinary ability alike. The note also considers whether this position is satisfactory.

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.

Traditional learning maintains that liability for negligence is ultimately premised on notions of moral blameworthiness. It is thought that the legal principles which define the scope of negligence loosely conform to such notions. This article challenges that view. While there is a certain amount of evidence which supports the conventional view it is argued that this evidence is eclipsed by many important instances where the tort of negligence is insensitive to considerations of moral blameworthiness.

Litigation arising out of defective building work is often complex due to a multiplicity of both parties and actions. Parties to building litigation frequently include designers, architects, engineers, builders and their subcontractors, suppliers and local planning authorities. Larger construction projects generally draw in larger numbers of parties. These parties may be sued in negligence, contract and for breach of the Trade Practices Act 1974 (Cth). It is thus not surprising that building litigation sometimes generates difficult questions as to how liability for defective building work should be apportioned between concurrent wrongdoers. Traditionally, concurrent wrongdoers were jointly and severally liable to the plaintiff. In recent years however, legislation has been enacted in New South Wales, the Northern Territory, South Australia and Victoria in an attempt to sever the joint and several liability of concurrent wrongdoers in building cases, and to introduce a system of proportionate liability. The New South Wales scheme also extends to subdivision cases. This note surveys this legislation and comments on its operation. In section two, some introductory comments are made concerning the relationship between joint and several liability and proportionate liability. Section three canvasses reasons for the introduction of proportionate liability in building and subdivision cases. Section four outlines the legislation and notes some differences between the jurisdictions. Decisions in which the legislation has been interpreted are discussed in section five. Finally, in section six, an assessment is made of the schemes’ effectiveness in substituting joint and several liability for proportionate liability.

Immunities from tortious liability are being dismantled. The immunity of landlords was vanquished by Northern Sandblasting Pty Ltd v Harris. The immunity accorded to health care professionals who act in accordance with a responsible body of medical opinion was demolished by Rogers v Whitaker. The Crown immunity from tort has been reduced to a shadow of its former existence. And, most recently, the immunity of highway authorities for nonfeasance was exploded by the conjoined decisions in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council. However, in contrast to this trend is the High Court’s decision in Giannarelli v Wraith, in which a majority confirmed the two-century-old rule that advocates enjoy, in certain circumstances, immunity from liability in negligence. This decision has been adamantly defended by the legal profession, although it is has been subject to almost universal criticism in academic circles. This article examines four inter-related issues. First, the foundation and scope of the immunity. Second, the arguments for and against its abolition. Third, whether it is appropriate for the High Court to reconsider the immunity or whether this task should be left to the legislature. Fourth, the possible methods by which the immunity could be clarified if it is to remain part of Australian law.