Tort Law Defences

by James Goudkamp

Overview

The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.

This book has been awarded Joint Second Prize for the 2014 Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship.

Product Details

ISBN-13:	9781849462914
Publisher:	Bloomsbury Academic
Publication date:	07/31/2013
Series:	Hart Studies in Private Law , #8
Pages:	270
Product dimensions:	6.14(w) x 9.21(h) x 0.62(d)

About the Author

James Goudkamp is a Fellow of Keble College, Oxford, and an Associate Professor in the Oxford Law Faculty. He holds or has held visiting positions at Harvard Law School, the Inner Temple, the National University of Singapore, the University of Western Australia and the University of Wollongong. James is also a barrister at 7 King's Bench Walk. Tort Law Defences was the Joint Runner-up for the Peter Birk's Prize for Oustanding Legal Scholarship (2014).

Table of Contents

Preface to the Paperback Edition vii

Preface to the Hardback Edition xxi

Acknowledgements xxiii

Contents xxvii

Table of Cases xxxv

Table of Statutes li

Table of Delegated Legislation lvii

Table of Conventions lviii

Table of Model Codes and Restatements lix

1 Introduction 1

1.1 Tort Law Defences 1

1.2 What is a 'Defence'? 1

1.2.1 Multiple Meanings 1

1.2.1.1 To include denials of elements of the tort in which the claimant sues 2

1.2.1.2 Liability-defeating rules that are external to the elements of the claimant's action 2

1.2.1.3 Principles that diminish the claimant's relief 3

1.2.1.4 Rules in respect of which the defendant carries the onus of proof 3

1.2.1.5 The final element of the claimant's cause of action 5

1.2.2 The Meaning Given to the Word 'Defence' in this Book 5

1.3 The Neglect of Defences 7

1.4 Why are Defences Worth Investigating? 11

1.5 The Temporal Logic of Tort Law 13

1.6 Labels in Tort Law 14

1.6.1 The Purpose of Labels 15

1.6.2 On What Basis are Labels Selected? 16

1.7 Complete Defences and Partial Defences 17

1.8 Who Can Raise Defences? 18

1.8.1 Insurers 18

1.8.2 The Court 19

1.9 Multiple Defences 19

1.10 Scope of the Book 20

1.10.1 Tort Law 20

1.10.2 Equitable Wrongs 21

1.10.3 Breach of Contract 23

1.10.4 Conclusion 24

1.11 Jurisdictions 24

1.12 Methodology 25

1.12.1 Taxonomic Analysis 25

1.12.2 Criminal Law Theorising Regarding Defences 25

1.13 Outline of the Argument 27

2 Torts and Defences 29

2.1 Introduction 29

2.2 Is the Distinction Exhaustive? 29

2.2.1 Standing Rules 30

2.2.2 Affirmative Answers to Defences 31

2.2.3 Conclusion 34

2.3 Defending Defences 34

2.3.1 Mere Assertions 35

2.3.2 An Inadequate Rationale 35

2.3.3 The Efficient Administration of Justice 36

2.3.4 Procedural Justice 36

2.3.5 Relative Value of the Parties' Interests 37

2.3.6 The Rule of Law: Duties and Privileges 39

2.3.7 Promoting Rationality in Judicial Reasoning 39

2.3.8 Harmonisation with Other Departments of the Law of Obligations 40

2.3.9 Discussion 40

2.3.9.1 Arguments that depend upon the allocation of the onus of proof 41

2.3.9.2 Is the distinction between torts and defences intrinsically significant? 41

2.3.9.3 Allocation of issues 44

2.4 Conclusion 45

3 Denials 46

3.1 Introduction 46

3.2 Denials of the Act Element 48

3.2.1 Involuntariness 48

3.3 Denials of a Fault Element 49

3.3.1 Involuntariness 49

3.3.2 Infancy 50

3.3.3 Insanity 51

3.3.4 Intoxication 52

3.3.5 Inevitable Accident 53

3.3.6 Act of God 54

3.3.7 Mistake 55

3.3.8 Voluntary Assumption of Risk 55

3.4 Denials of the Causation Element 58

3.4.1 Inevitable Accident 58

3.4.2 Act of God 58

3.4.3 Act of Third Party 59

3.4.4 Claimant Default 60

3.4.5 Voluntary Assumption of Risk 60

3.4.6 Illegality 61

3.4.7 Novus Actus Interveniens 62

3.5 Denials of the Damage Element 62

3.5.1 Truth 62

3.6 Denials of Other Elements 65

3.6.1 Consent 65

3.6.2 Prescription 68

3.6.3 Exclusion of Liability by Contract or Notice 69

3.6.4 Voluntary Assumption of Risk 70

3.6.5 Illegality 71

3.6.6 Contributory Negligence 71

3.6.7 Truth 72

3.6.8 Common Enemy Rule 73

3.7 Conclusion 73

4 A Taxonomy of Tort Law Defences 75

4.1 Introduction 75

4.2 The Taxonomy 76

4.3 Challenges to the Taxonomy 76

4.3.1 Justifications 76

4.3.1.1 Denials of wrongdoing or explanations for wrongdoing? 76

4.3.1.2 Does tort law accept pleas of justification? 80

4.3.2 Excuses 82

4.3.2.1 Introduction 82

4.3.2.2 Excuses are assertions of responsibility 83

4.3.2.3 Justifications and excuses 85

4.3.2.4 Fletcher's analysis 86

4.3.2.5 Provocation, duress and excessive self-defence 88

4.3.2.6 Mistaken belief in the existence of justifying circumstances 90

4.3.2.7 Defective motive 97

4.3.2.8 Conclusion 101

4.3.3 Denials of Responsibility 101

4.3.3.1 Insanity

4.3.3.2 Infancy 103

4.3.3.3 Unfitness to plead 103

4.3.4 Public Policy Defences 104

4.4 Conclusion 104

5 Applying the Taxonomy 105

5.1 Introduction 105

5.2 Justification Defences 105

5.2.1 Private Justifications 106

5.2.1.1 Self-defence 106

5.2.1.2 Defence of one's property 108

5.2.1.3 Abatement 108

5.2.1.4 Recapture of land 109

5.2.1.5 Recapture of chattels 109

5.2.1.6 Distress 110

5.2.1.7 Qualified privilege 110

5.2.1.8 Innocent dissemination 112

5.2.1.9 Consent 113

5.2.2 Public Justifications 114

5.2.2.1 Public necessity 114

5.2.2.2 Defence of another person 116

5.2.2.3 Defence of another's property 116

5.2.2.4 Arrest 117

5.2.2.5 Discipline 117

5.2.2.6 Responsible journalism 118

5.2.2.7 Medical treatment 119

5.2.2.8 Justification 119

5.2.2.9 Statutory authority 121

5.3 Public Policy Defences 122

5.3.1 Public Policy Defences That Arise at the Time of the Tort 122

5.3.1.1 Judicial process immunities 122

5.3.1.2 Report of court proceedings 123

5.3 1 3 Parliamentary and executive privilege 123

5.3 1.4 Diplomatic, consular and related immunities 124

5.3.1.5 Foreign State immunity 124

5.3.1.6 Act of State 124

5.3.1.7 Trade union immunity 125

5.3.1.8 Crown immunity 125

5.3.1.9 Honest comment 126

5.3.1.10 Illegality at common law 126

5.3.1.11 Statutory illegality defences 127

5.3.1.12 Defunct defences 128

5.3.2 Public Policy Defences That Arise After the Tort 130

5.3.2.1 Limitation bars 130

5.3.2.2 Res judicata 131

5.3.2.3 Abuse of process 131

5.3.2.4 Contract of settlement 132

5.3.2.5 Release 132

5.3.2.6 Offer to make amends 133

5.3.2.7 Prior criminal proceedings 133

5.3.2.8 Bankruptcy 133

5.3.2.9 Reportage 134

5.3.2.10 Death 134

5.4 Conclusion 135

6 Implications 136

6.1 Introduction 136

6.2 Unwanted Side-effects 136

6.3 Burden of Pleading 138

6.4 Burden of Proof 138

6.5 Permissible Vagueness 139

6.6 Defendant's Knowledge of the Material Facts 140

6.7 The Relevance of the Defendant's Motive 141

6.8 Benefiting from a Defence Enjoyed by a Confederate 143

6.9 Invocation by the Court 144

6.10 Bad Character Evidence 145

6.11 Non-implications 145

6.11.1 Liability for Resisting the Conduct of an Aggressor 146

6.11.2 Vicarious Liability 147

6.11.3 Costs 147

6.11.4 The tribunal 148

6.11.5 Defendant Causing the Conditions of his Own Defence 148

6.11.6 Context Sensitivity 149

6.12 Summary 150

7 Rival Taxonomies 151

7.1 Introduction 151

7.2 A Derived System of Classification 151

7.3 General Defences and Special Defences 152

7.4 Cane's System 153

7.5 Wigmore's System 155

7.6 The Division Adopted by the Restatement (Second) of Torts 157

7.7 Defences That Apply Immediately and Delayed-onset Defences 158

7.8 Dobbs's System 159

7.9 Bipolar and Non-bipolar Defences 160

7.10 Goldberg and Zipursky's System (1) 161

7.11 Goldberg and Zipursky's System (II) 162

7.12 Conclusion 163

8 Denials of Responsibility 164

8.1 Introduction 164

8.2 Unpacking the Concept of Basic Responsibility 165

8.3 Should Insanity Be a Tort Defence? 166

8.3.1 The Case Against Recognition 167

8.3.1.1 The causation argument 167

8.3.1.2 The fraud argument 169

8.3.1.3 The imported difficulties argument 172

8.3.1.4 The unsatisfactory evidence argument 174

8.3.1.5 The deterrence argument 174

8.3.1.6 The avoidance and deinstitutionalisation arguments 176

8.3.1.7 The goal of tort law argument 179

8.3.1.8 The self-support argument 180

8.3.1.9 The distributive justice argument 180

8.3.1.10 The justified expectations argument 181

8.3.1.11 The price for membership of society argument 182

8.3.1.12 The consistency argument 182

8.3.1.13 The resistance and asset recovery argument 182

8.3.2 The Case for Recognition 183

8.3.2.1 The free will paradigm argument 183

8.3.2.2 The sanction argument 184

8.3.3 Conclusion 184

8.4 Should Infancy Be a Tort Defence? 184

8.4.1 The Case Against Recognition 184

8.4.2 The Case for Recognition 185

8.4.3 Conclusion 186

8.5 Should Unfitness to Plead Be a Tort Defence? 186

8.5.1 The Case Against Recognition 187

8.5.1.1 The repugnant consequences argument 187

8.5.1.2 The party autonomy argument 188

8.5.2 The Case for Recognition 188

8.5.2.1 The fairness argument 189

8.5.2.2 The decisional rectitude argument 189

8.5.3 Conclusion 190

8.6 Further Questions 190

8.6.1 Implications of a Defence being a Denial of Responsibility 190

8.6.2 The Priority Thesis 191

8.7 Conclusion 192

9 Future Directions 193

9.1 Statutes and Defences 193

9.1.1 Legislative Techniques 193

9.1.2 Reasons for the Focus of Legislatures on Defences 195

9.1.3 The Balkanisation of the Law of Defences 195

9.1.4 Challenges Created by the Statutorification of Defences 196

9.2 Reforming the Law of Tort Defences 198

9.2.1 Coherent Development 198

9.2.2 Certainty in Classification 199

9.2.3 Creation of Defences versus Abolition of Defences 200

9.3 Interactional Effects 201

9.3.1 Interactions Between the Elements of Torts and Defences 201

9.3.2 Interactions Between Defences 202

9.3.3 Interaction with the Apportionment Legislation 202

9.3.3.1 Oblique impact 202

9.3.3.2 Are complete defences anomalous? 204

9.3.4 Interaction with Criminal Law Defences 204

9.3.5 Interaction with the European Convention on Human Rights 206

9.3.5.1 Impact to date 207

9.3.5.2 Potential future impact 208

9.4 A Taxonomy of Defences to Civil Liability 211

Index of Authors 213

Index 215

Editorial Reviews

... a highly original and insightful analysis into the law of defences to torts as a whole [that] is certainly worthwhile reading.
Australian Law Journal

...a welcome contribution. With its careful analysis and clear prose, the book warrants our serious attention.
New Zealand Law Journal

...this book is a gem. It is beautifully clear in its exposition, and thorough in its examination of the area which has long needed such a look. Academic tort lawyers will love it and practitioners will find it extremely useful in clarifying their approach to arguing defences. It is worth having in your library.
Australian Civil Liability

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