James Goudkamp

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.

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 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.

The Supreme Court recently handed down judgment in the appeal in Patel v Mirza [2016]. In this landmark decision, the Supreme Court put to rest a long-running debate that had raged between justices of the Supreme Court regarding the proper approach to the law of illegality. Several Justices, spearheaded by Lord Sumption, had preferred a rule-based analysis, with the reliance test constituting the relevant rule. According to the reliance test, the claimant will fail in his or her action if he or she needs to rely on his or her own wrongdoing in order to establish the claim. The rival approach, championed by Lord Toulson, was a discretionary analysis. The discretion-based test involves examining all of the factors that weigh in favour and against permitting recovery and then reaching a conclusion as to the proper outcome in the light of those considerations. Salient factors might include the need to prevent wrongful profiting, the concern to deter offending, the imperative of maintaining both the dignity of the courts and the coherence of the legal system, any relevant statutory policy, and the importance of guarding against disproportionate reactions to what might be relatively insignificant illegality. In Patel, the Supreme Court rejected, by a majority, the rule-based approach in favour of the policy analysis. An important question that arises, however, and one that was not answered by the Supreme Court, is whether Patel applies beyond the field of unjust enrichment, which was the area of law in issue in the case, and extends to claims in tort law. If Patel applies to tort law, it arguably overrules sub silentio decisions in the law of torts that lay down an alternative approach. More particularly, it would conceivably follow that Patel overturns the momentous decision of the House of Lords in Gray v Thames Trains [2009], in which a causal test was embraced. Pursuant to the causal test, the claimant will fail if, by his or her own illegal act, he or she had caused the damage that was the subject of the claim. It is obvious that this test differs from the policy-based approach. The burden of this article is to consider Patel’s jurisprudential reach.

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 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.

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.

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 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.

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.

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.

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 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.

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.

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.

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.

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.

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, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. 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 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.

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?