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Contemporary Tort Theory and Tort Law’s Evolution

Published online by Cambridge University Press:  20 August 2019

John Murphy
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Abstract

Although grand, explanatory theories of tort law come apart from one another in many ways, they also have a fair amount in common. One core claim found in the work of various Kantian theorists, as well as a number of leading rights theorists, is that tort law develops, incrementally, in such a way as to achieve ever greater coherence (where such coherence is measured according to key tenets of the particular theories). This article takes issue with that claim. It shows, by reference to a host of legal landmarks, that tort law neither does, nor must, develop in this way. A great many important innovations in tort cannot be reconciled with central aspects of the theories in view, but they are easily explained by reference to major changes in material conditions of life, shifts in the ideological Zeitgeist, judicial partiality and juristic influence. As long as such factors are free to exert their influence – and there is nothing to suggest that they are not so free – it is implausible to suggest that tort law will inexorably move towards a state of ever greater coherence.

Keywords

contemporary tort theorylegal historyliability insurancejudicial partialityjuristic influence
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 2 , August 2019 , pp. 413 - 442
Copyright
© Canadian Journal of Law & Jurisprudence 2019 

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Footnotes

Thanks are due to Sara Fovargue, Josh Getzler, James Goudkamp, Phil Handler, William Lucy, and the anonymous referee for their comments on earlier versions of this article.

References

1. Successfully subjecting human conduct to the governance of rules—as tort broadly does—requires some degree of coherence in those rules: see Neil MacCormick, Legal Reasoning and Legal Theory (Oxford University Press, 1978) ch 7.

2. Arthur Ripstein is the notable exception. In Private Wrongs (Harvard University Press, 2016) he is completely silent on this matter and his theory is immune from the central claim in this article.

3. Ernest J Weinrib, The Idea of Private Law (Harvard University Press, 1995) at 13 [Weinrib, Idea of Private Law].

4. Ibid at 12. Although they are connected, Weinrib erroneously elides inconsistent and incoherent rules. Rules can be incoherent without being inconsistent: see text associated with note 146.

5. Ibid at 13.

6. Ibid.

7. Ibid.

8. Allan Beever, A Theory of Tort Liability (Hart, 2016) at 139 [Beever, Theory of Tort Liability].

9. Robert Stevens, Torts and Rights (Oxford University Press, 2007) at 348 [Stevens, Torts and Rights].

10. Ibid at 315.

11. Ibid at 318.

12. Ibid.

13. Stevens insists that his theory reveals the “truth of conceiving of torts as the infringement of primary rights”: ibid at 3. I assume that Stevens believes the true picture to be the best picture.

14. Andrew Burrows, “The Relationship Between Common Law and Statute in the Law of Obligations” (2012) 128:2 Law Q Rev 232 at 234.

15. J Beatson, “The Role of Statute in the Development of Common Law Doctrine” (2001) 117:2 Law Q Rev 247.

16. Although it is far from clear why Weinrib ignores statutes, the most likely reasons seem to be that he considers them incapable of forming part of tort law because (i) they are necessarily creatures of public (not private) law and (ii) they are concerned with distributive (not corrective) justice. For detailed discussion of these points, and a rejection of them, see James Goudkamp & John Murphy, “Tort Statutes and Tort Theories” (2015) 131:4 Law Q Rev 133 at 139-42.

17. Stevens addresses the compatibility of many statutes including the Congenital Disabilities (Civil Liability) Act 1976, c 28, the Latent Damage Act 1986, c 37, and the Fatal Accidents Act 1976, c 30: see Stevens, Torts and Rights, supra note 9 ch 8. Beever is not so far ranging, but he is assiduous in his endeavour to explain s 1 of the Compensation Act 2006, c 29, and various Australian equivalents: Allan Beever, Rediscovering the Law of Negligence (Hart, 2007) at 112-14 [Beever, Rediscovering].

18. Suppose that, prior to the development of the economic torts, 80% of tort law was coherent. Suppose also, that after their creation the economic torts accounted for 10% of tort law. This would mean that, after their creation, 82% of tort law would now be coherent.

19. See, e.g., Weinrib, Idea of Private Law, supra note 3 at 175; Stevens, Torts and Rights, supra note 9 at 173.

20. See, e.g., Beever, Rediscovering, supra note 17 at 52-54; Weinrib, Idea of Private Law, supra note 3 at 220-21; Stevens Torts and Rights, supra note 9 at 307.

21. The words “demonstrably constitute” are vital. They signal my endeavour to avoid a “realist legal history” according to which past events have been reconstructed in order to give events a convenient complexion. My claims are anchored firmly to precise dicta, and (regarding statutory initiatives) a range of archival sources such as Parliamentary debates and reports of the Law Revision Committee.

22. [1957] AC 555.

23. Ibid at 591-92. Winfield made a similar observation 20 years earlier likening the role of the courts to that of medical scientists devising new cures as more and more human ills come to light: Sir Percy Henry Winfield, A Text-Book on the Law of Tort (Sweet & Maxwell, 1937) at 21 [Winfield, Text-Book on the Law]. He thought the facility to do this stemmed from the inherently ‘elastic’ nature of the law: Percy H Winfield, “The Foundation of Liability in Tort” (1927) 27:1 Colum L Rev 1 at 5 [Winfield, “Foundation of Liability”].

24. Fleming James Jr & John V Thornton, “The Impact of Insurance on the Law of Torts” (1950) 15 Law & Contemp Probs 431 at 431.

25. DJ Ibbetson, “The Tort of Negligence in the Common Law in the Nineteenth and Twentieth Centuries” in Eltjo JH Schrage, ed, Negligence: The Comparative Legal History of the Law of Torts (Duncker & Humblot, 2001) 229 at 258-59: “[A]s the century progressed it became compulsory to take out such liability insurance … [so] as between an injured plaintiff and an anonymous (and wealthy) insurance company it was easy to have sympathy with the plaintiff; and losses could be spread widely and relatively painlessly rather than borne by the individual plaintiff” [Ibbetson, “The Tort of Negligence”].

26. Jane Stapleton, “Tort, Insurance and Ideology” (1995) 58:6 Mod L Rev 820 at 823-24.

27. Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 at 576-77.

28. For a detailed study of the comparable impact of liability insurance on tort law in the United States, see Kenneth S Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (Harvard University Press, 2008).

29. Nettleship v Weston [1971] 2 QB 691 at 699 (“[m]orally the learner driver is not at fault; but legally she is liable … because she is insured”); Morris v Ford Motor Co Ltd [1973] QB 792 at 798 (“[t]he courts … would not find negligence so readily … except on the footing that the damages are to be borne, not by the man himself, but by an insurance company”).

30. Jonathan Morgan, “Tort, Insurance and Incoherence” (2004) 67:3 Mod L Rev 384.

31. [2003] 1 WLR 1607 [Vowles].

32. Stapleton made much of judicial equivocation in her rebuttal of the suggestion that insurance has impacted the shaping of tort’s liability rules: Stapleton, supra note 26 at 827.

33. Vowles, supra note 31 at 12.

34. See, e.g., Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] AC 211. Three key points were made: (i) liability insurance is integral to the proper functioning of the shipping industry; (ii) accurate computation of risk is central to the operation of the insurance market and (iii) accurate computation of risk requires there to be clear liability rules, hence their Lordships felt obliged to lay down such rules in this case. For other, comparable examples, see R Lewis, “Insurance and the Tort System” (2005) 25:1 LS 85 at 101-03.

35. Catholic Child Welfare Society and Others v Various Claimants [2013] 2 AC 1 at para 35. The proclamation was refined by Lord Reed in Cox v Ministry of Justice [2016] AC 660 at para 20. He noted, first, that “employers insure themselves because they are liable: they are not liable because they have insured themselves”, but then added that “the absence or unavailability of insurance … might be a relevant consideration” when it comes to refusing to impose vicarious liability.

36. These must now be read in the light of the Enterprise and Regulatory Reform Act 2013, c 24, stipulating that, unless expressly stated, breach of workplace regulations will not give rise to civil liability.

37. For examples, see Lewis, supra note 34.

38. 1969, c 37.

39. Editorial (1968) 118 NLJ 1138 at 1139.

40. 1969, c 57.

41. HL Deb, vol 301, col 999 (May 1, 1969).

42. Unfair Contract Terms Act 1977, c 50, s 1(3).

43. Ibid at s 11(1).

44. Congenital Disabilities (Civil Liability) Act 1976, c 28, s 2.

45. HL Deb, vol 371, col 364 (May 27, 1976).

46. 1945, c 28.

47. HC Deb, vol 408, col 1027 (Feb 22, 1945).

48. For many other tort law developments also prompted by social change, see Paul Mitchell, A History of Tort Law: 1900-1950 (Cambridge University Press, 2015).

49. See Beever, Rediscovering, supra note 17 at 190: “when a court denies or creates liability because of insurance … [this will] do violence to the coherence of tort law”. In similar vein see Ernest J Weinrib, “The Insurance Justification and Private Law” (1985) 14:3 J Legal Stud 681 at 683 and Weinrib, Idea of Private Law, supra note 3 at 220-21; Stevens, Torts and Rights, supra note 9 at 109.

50. 1871, 34 & 35 Vict c 31.

51. R v Bunn (1872) 12 Cox 316. Here, the illegal purpose was said to be the coercion of the employer’s free will.

52. 1875, 38 & 39 Vict c 86. On the TUC’s influence over the contents of the Acts of 1871 and 1875, see Michael J Klarman, “The Judges Versus the Unions: The Development of British Labor Law, 1867-1913” (1989) 75:8 Va L Rev 1487.

53. [1892] AC 25 [Mogul].

54. [1893] 1 QB 715.

55. Quinn v Leathem [1901] AC 495 [Quinn]. Cf Allen v Flood [1898] AC 1 [Allen] (no unlawful means or malicious purpose present).

56. Quinn, supra note 55.

57. Allen, supra note 55 at 124, Lord Herschell.

58. On which see, e.g., David Ibbetson, “‘The Law of Business Rome’: Foundations of the Anglo-American Tort of Negligence” (1999) 52:1 Current Leg Probs 74 at 84-87; Ibbetson, “The Tort of Negligence”, supra note 25.

59. In a painstaking trawl of the closed shop cases, Michael Klarman provides clear evidence of a widespread “judicial preference for uncoerced individual action”: Klarman, supra note 52 at 1574. Less convincingly, but nonetheless plausibly, he also suggests two further grounds for the view that, at the turn of the 20th Century, judges held a pronounced anti-union bias. The first was “the judges’ conscious desire to curtail union power that they perceived as threatening to the reigning economic…order”; the second, was rooted in “judges’ unconscious class prejudices”: ibid at 1574.

60. Quinn, supra note 55 at 506. See also the very similar view expressed by Lord Macnaghten: ibid at 511-12.

61. Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426.

62. Ibid at 431.

63. 1906, 6 Edw 7 c 47.

64. [1908] 2 KB 844 at 855-56.

65. Ibid at 856.

66. HL Deb, vol 166, col 705 (Dec 4, 1969).

67. [1898] AC 1.

68. Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (Weidenfeld & Nicholson, 1979) at 93.

69. According to Stevens, “the most significant fact about [Quinn] … was that Halsbury had chosen his panel carefully. Herschell was dead, and the other two Liberals, Davey and James, were not invited to sit”. Cf Beever, Theory of Tort Liability, supra note 8 at 125-28 for the view that evidential matters best explain the difference between Allen and Quinn.

70. Quinn, supra note 55 at 506. He was cognisant, too, of the clash with Allen, yet was content to observe (ibid) that “every lawyer must acknowledge that the law is not always logical”.

71. Though note Lord Hoffmann’s description of Lord Esher MR’s attitude in Temperton v Russell (1893) 1 QB 715: “[o]ne cannot read the description of the union’s actions by the Master of the Rolls without seeing disapproval dripping from every sentence”: Leonard Hoffmann, “The Rise and Fall of the Economic Torts” in Simone Degeling, James Edelman & James Goudkamp, eds, Torts in Commercial Law (Thomson Reuters, 2011) 105 at 109.

72. Charlesworth, though slightly equivocal, thought the tort was first properly conceived by analogy with the crime of conspiracy in the Mogul Steamship case: see J Charlesworth, “Conspiracy as a Ground of Liability in Tort” (1920) 36:1 Law Q Rev 38 at 38.

73. Hazel Carty, An Analysis of the Economic Torts, 2nd ed (Oxford University Press, 2010) at 139.

74. Sales and Stilitz have argued that, despite its many names, the “first recognizable formulation” occurred in Allen, supra note 55: see Phillip Sales & Daniel Stilitz, “Intentional Infliction of Harm by Unlawful Means” (1999) 115:3 Law Q Rev 411 at 411.

75. Garret v Taylor (1620) Cro Jac 567; Tarleton v M’Gawley (1793) Peake NP 270.

76. Hoffmann, supra note 71 at 105.

77. [1964] AC 1129, 1185, Lord Evershed. Writing extra-judicially, Lord Hoffmann likewise observed that “excessive trade union power … had alienated the judges”: Hoffmann, supra note 71 at 112. On the tort of intimidation being “resuscitated” in order to get around the protections afforded by the 1906 Act, see John Murphy, “Understanding Intimidation” (2014) 77:1 Mod L Rev 33 at 34.

78. Willers v Joyce [2016] 3 WLR 477 at para 179 [Willers]. In similar vein, see ibid at para 182, Lord Reed.

79. The classic explanation of this point is Peter Benson, “The Basis for Excluding Liability for Economic Loss in Tort” in David Owen, ed, Philosophical Foundations of Tort Law (Oxford University Press, 1995) 427. Benson’s argument is endorsed and substantially replicated in Beever, Rediscovering, supra note 17 at 251, Stevens, Torts and Rights, supra note 9 at 21, and Ernest J Weinrib, “The Disintegration of Duty” (2006) 31:2 Adv Quart 212 at 228. Cf Jason Neyers, “Rights-Based Justifications for the Tort of Unlawful Interference with Economic Relations” (2008) 28:2 LS 215.

80. Stevens, Torts and Rights, supra note 9 at ch 8.

81. Weinrib, for example, maintains that “so far as corrective justice is concerned, the norms of tort law—and indeed of private law more generally reflect … the bipolar structure of private law”: Ernest J Weinrib, ‘Deterrence and Corrective Justice’ (2002) 50:2 UCLA L Rev 621 at 623.

82. Beever does not explicitly sign up to the structural imperative, but it seems to be implicit in his claim that the three-party economic torts discussed here can be explained in terms of a supposedly pervasive coercion principle according to which, in tort, A will be liable to B “if he constrains B and that constraint is not consistent with equal maximum freedom”: Beever, Theory of Tort Liability, supra note 8 at 26, 154. Whether even a generous interpretation of the leading cases genuinely reveals such a principle at work is questionable; but that is a matter for another day.

83. [2008] UKHL 19.

84. Ibid at para 77.

85. Hoffmann, supra note 71 at 105. His opera impresario remark is a reference to the tort of inducing breach of contract minted in Lumley v Gye (1853) 2 El & Bl 216.

86. I recognise that “crises” are rarely univocally constructed. My use of the term here is, however, justified by virtue of the level of celebrity attached to each of the examples I invoke.

87. (1868) LR 3 HL 330.

88. St Helen’s Smelting Co v Tipping (1865) 11 HLC 642.

89. (1865-66) LR 1 Ex 265, 286 [emphasis added].

90. AW Brian Simpson, Leading Cases in the Common Law (Oxford University Press, 1995) at 217.

91. For details of the steady growth in the fault principle during the era in which Rylands was decided see section D, below.

92. In fact, strict liability is regarded as being completely incompatible with Weinrib’s theory of tort law. For him, corrective justice—by virtue of it being a principle of justice—demands fault on the part of D. How could it possibly be just to impose liability on D when D was not at fault? Weinrib spends all of chapter 7 in The Idea of Private Law tackling the problem of “apparently” strict liability torts. Prime among the ones that he identifies as awkward is the rule in Rylands v Fletcher. He attempts to show that, properly understood, it is best seen as instantiating fault-based liability. Since his arguments to this effect ultimately fail (on which, see John Murphy, “The Heterogeneity of Tort Law” (2019) 39 Oxford J Legal Stud [forthcoming]), Rylands must be seen as a strict liability tort which, given that it was first formulated in an era dominated by a move towards an increasingly fault-based body of law renders it an example of move away from an increasingly coherent law of tort.

93. For a full account, see James Goudkamp, “The Young Report: an Australian Perspective on the Latest Response to Britain’s ‘Compensation Culture’” (2012) J Professional Negligence 4.

94. Ibid at 6-7.

95. Ibid at 12.

96. See Goudkamp & Murphy, supra note 16 at 153-56; James Goudkamp & John Murphy, “The Failure of Universal Theories of Tort Law” (2015) 21:2 Leg Theory 47 at 71-77.

97. The tragedy concerned children all over the world born with serious deformities caused by the sedative drug, Thalidomide, taken by their mothers during pregnancy.

98. Law Commission, Report on Injuries to Unborn Children: Advice to the Lord Chancellor under Section 3(1)(E) of the Law Commissions Act 1965 (HM Stationary Off, 1974).

99. The Thalidomide tragedy was also a driver behind the European Directive on liability for defective products and, in turn, Part I of the Consumer Protection Act 1987, c 43.

100. For the argument that a specifically Canadian action may lie in respect of tortiously inflicted pre-natal injuries, see Lorraine E Weinrib & Ernest J Weinrib, “Constitutional Values and Private Law in Canada” in Daniel Friedmann & Daphne Barak-Erez, eds, Human Rights in Private Law (Hart, 2003) 43. Their arguments, however, do not impinge on the claims made here in relation to the action under the English Congenital Disabilities (Civil Liability) Act.

101. 1846, 9 & 10 Vict c 93.

102. (1808) 1 Camp 493.

103. Donal Nolan, “The Fatal Accidents Act 1846” in TT Arvind & Jenny Steele, eds, Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2013) 131 at 135.

104. Ibid at 132.

105. Rande W Kostal, Law and English Railway Capitalism 1825-1875 (Clarendon Press, 1994) at 281.

106. RL Howells, “Priestley v Fowler and the Factory Acts” (1963) 26:4 Mod L Rev 367 at 374-75.

107. The dependency action cannot be reconciled with the structural imperative (and thus the theories in view) on the basis that it produces a just result. Baker stands in the way of any such reconciliation because the theoretical claim in issue here concerns the structure of tort actions, and not the remedies that such actions are capable of providing. For details of the admission, and extent, of the problem of fit for rights theory caused by this action, see Goudkamp & Murphy, supra note 16 at 147-49.

108. The Poor Law Amendment Act 1834, 4 & 5 Will IV c 76—which, according to Simpson (supra note 90 at 123) was “designed to curb expenditure upon the poor”—had been passed just about a decade earlier and was symptomatic of a growing concern to cut back on the cost of poor relief.

109. Nolan, supra note 103.

110. In fact, it would have been impossible for it to have done so since it was only in the late 19th Century (in the work of figures like of Holmes and Pollock) that pioneering efforts to offer a principled, coherent account of tort law began to emerge.

111. Jerome Frank, Law and the Modern Mind (Transaction Publishers, 1930) at 111.

112. Roscoe Pound, “The Call for a Realist Jurisprudence” (1931) 44:5 Harv L Rev 697.

113. (1837) 3 M & W 1 [Priestley].

114. Kostal, supra note 105 at 263.

115. Priestley, supra note 113 at 5.

116. Ibid. For a concession that judges will decide such cases et aequo et bono (i.e., according to a discretion guided by the judge’s personal assessment of the merits of the case), see P Devlin, The Judge (Oxford University Press, 1979) at 101-02.

117. Ibid.

118. As one historian notes: Abinger was “an anti-slavery Whig who, in the previous decade had championed Benthamite reform of the Poor Laws”: see Kostal, supra note 105 at 265-66.

119. Priestley, supra note 113 at 6.

120. It is stretching things to say, as some do, that the doctrine of common employment was properly formed in Priestly. However, the case was undoubtedly interpreted in this way in later cases on both sides of the Atlantic: See, e.g., Farwell v Boston and Worcester Railroad (1842) 4 Met (Mass) 49; Hutchinson v York, Newcastle and Berwick Rly Co (1850) 5 Exch 343.

121. Lord Wright, Legal Essays and Addresses (Cambridge University Press, 1939) at 398.

122. A supposed justification for the differential treatment was linked to a fictional implied term that employees agreed to run the risk of injury at work: see Bartonshill Coal Co v Reid (1858) 3 Macq 266 at 284, Lord Cranworth. But the idea that 19th Century manual workers—the ones mainly at risk—genuinely agreed to such a term is fanciful. Most took jobs out of financial necessity.

123. As he remarked in Wilsons & Clyde Coal Co v English [1938] AC 57 at 82: the fact a “workman takes the risk of a fellow workman’s negligence” does not imply also that he “take[s] the risk of his master’s negligence” in the form of, say, employing incompetent co-workers.

124. See Neil Duxbury, “Lord Wright and Innovative Traditionalism” (2009) 59:3 UTLJ 265 at 279-80.

125. For personnel details, see Viscount Kilmuir, “Law Reform” (1957) 4:2 J Society of Public Teachers of L 75 at 81.

126. RM Jackson, The Machinery of Justice in England (Cambridge University Press, 1964) at 414.

127. Law Revision Committee, Eighth Report: Contributory Negligence, Cmd 6032 (1939). Lord Wright is also on record as having enthusiastically endorsed the final version of the Bill: see Mitchell, supra note 48 at 326 and Howells, supra note 106.

128. 1945, c 28.

129. Mitchell, supra note 48 at 313: “[r]ight at the start of the report it was made clear that the Committee favoured apportionment as the ‘fairer’ method of dealing with contributory negligence”.

130. John Gardner, “What is Tort Law For? Part 2: The Place of Distributive Justice” in John Oberdiek, ed, Philosophical Foundations of Tort Law (Oxford University Press, 2014) 335.

131. See Goudkamp & Murphy, supra note 16 at 149-52.

132. See Robert Stevens, “Should Contributory Fault be Analogue or Digital?” in Andrew Dyson, James Goudkamp & Frederick Wilmot-Smith, eds, Defences in Tort (Hart, 2014) 247.

133. Hazel Carty, “The Tort of Conspiracy as a Can of Worms” in Stephen GA Pitel, Jason W Neyers & Erika Chamberlain, eds, Tort Law: Challenging Orthodoxy (Hart, 2013) 395. Thus motivated, Lord Denning was the prime mover behind the maverick and theoretically mystifying decisions in, among other cases, Torquay Hotel v Cousins [1969] 2 Ch 106; Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 1 WLR 1676; and Associated Newspapers Group Ltd v Wade [1979] 1 WLR 697.

134. [1972] AC 877.

135. Ibid at 899. He justified this departure from the normal objective approach by noting that occupiers do not “voluntarily assume a relationship with trespassers”: ibid.

136. Weinrib, Idea of Private Law, supra note 3 at 169. In similar vein, see Beever, Theory of Tort Liability, supra note 8 at 183.

137. Stevens certainly fails to deal satisfactorily with the problem. He acknowledges the lower standard of care enunciated in Harrington (and replicated in the 1984 Act) before simply asserting that this lower standard “is not explained by any moral culpability on the part of the claimant … [but instead] justified because of the exceptional nature of the right being invoked”: Stevens, Torts and Rights, supra note 9 at 124. Puzzlingly, he does not spell out what this exceptional right is, although he does speak of the duty being one to “protect those on his land” (ibid). So saying suggests merely that the familiar right to bodily integrity is implicated given Stevens’ commitment to the correlativity of rights and duties. If this be so, then there is no extraordinary right in play that explains the lower standard of care.

138. 1984, c 3. Under section 1(3) of the Act, “An occupier of premises owes a duty to another … if [among other things] the risk is one against which … he may reasonably be expected to offer the other some protection.” Note that the duty is keyed to the particular occupier “he” (as emphasised).

139. See, e.g., Ibbetson, “The Tort of Negligence”, supra note 25.

140. E.g., in Metropolitan Railway v Jackson (1877) 3 App Cas 193 at 197, Lord Cairns was unequivocal about not wanting to “place in the hands of the jurors a power which might be exercised in the most arbitrary manner”.

141. Joshua Getzler, “The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case” in Katherine O’Donovan & Gerry R Rubin, eds, Human Rights and Legal History: Essays in Honour of Brian Simpson (Oxford University Press, 2000) 205 at 207.

142. (1886) 11 App Cas 247.

143. Cf Lister v Perryman, (1870) LR 4 HL 521 where the House of Lords admitted openly that in malicious prosecution actions a judge would act as a trier of fact (not law), and that he or she could not look to any precedents to help decide whether there was reasonable and probable cause in the present case.

144. (1886) 11 App Cas 247 at 252, Lord Bramwell.

145. For other evidence of judges manipulating doctrine in order to control juries, see M Lobban, “The Development of Tort Law” in William Cornish et al, eds, The Oxford History of the Laws of England: Volume XII: 1820-1914 (Oxford University Press, 2010) 902.

146. N MacCormick, Legal Reasoning and Legal Theory (Oxford University Press, 1978) 106.

147. In suggesting that judges remain empowered to bring personal convictions to bear on the development of the law I do not ignore the fact that there is a difference between what a judge ought to do and what a judge is able to do. My point in the text relies on the latter not the former. Similarly, my claim in respect of the changes that are sometimes brought about by “maverick judges” is a limited one. I do not mean to suggest that such changes are irreversible, only that the law is not destined to roll forwards smoothly within the tramlines of some or other theory.

148. Stevens, Torts and Rights, supra note 9 at 309.

149. Mitchell, supra note 48 at 6-7.

150. These were Mogul, supra note 53, Quinn, supra note 55 and Allen, supra note 55.

151. As one study of 104 House of Lords cases over a 20-year period makes clear, “[t]here can be no doubt that critical and constructive scholarship has had a significant impact on the development of particular parts of the law of tort by the House of Lords”: K Stanton, “Use of Scholarship by the House of Lords in Tort Cases” in J Lee, ed, From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Hart, 2011) 201 at 215.

152. Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) [2003] 2 AC 1 at 190.

153. [2008] AC 1 at para 65, Lord Hoffmann.

154. [1964] AC 1129.

155. Ibid at 1205.

156. Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264.

157. [1995] 2 AC 207. That academic materials should have played a part is unsurprising once one recalls that both Professor Jolowicz and Professor Markesinis acted as counsel in that case.

158. [2006] 1 AC 459.

159. RA Buckley, The Law of Nuisance (Butterworths, 1996) at 68.

160. Attorney General v PYA Quarries [1957] 2 QB 169.

161. Mitchell, supra note 48 at 9 [emphasis added]. For the precise role that the jurists played in connection with the Law Reform (Contributory Negligence) Act 1945, c 28, see ibid at 303-04.

162. Both rights theorists and corrective justice theorists see tort as belonging exclusively to the domain of private law and for this reason they struggle to explain the misfeasance tort: see John Murphy, “Misfeasance in a Public Office: A Tort Law Misfit” (2012) 32:1 Oxford J Legal Stud 51. Jason Neyers has argued that public nuisance can be reconceptualised so as to cohere with a rights-based understanding of tort law. But, by his own admission, his approach only works in relation to obstructed highway and public fishery cases thereby leaving some of the existing law unaccounted for: see J Neyers, “Reconceptualising the Tort of Public Nuisance” (2017) 76:1 Cambridge LJ 28.

163. [1995] UKHL 5.

164. See text accompanying notes 80-82.

165. Peter Birks, “The Academic and the Practitioner” (1998) 18:4 LS 397 at 399.

166. See Lord Rodger, “Judges and Academics in the United Kingdom” (2010) 29:1 UQLJ 29 at 40: “Nowadays, many more judges have done law degrees and so they know of, and appreciate, the work of leading academics”. See also Jack Beatson, “Legal Academics: Forgotten Players or Interlopers?” in Andrew Burrows, David Johnston & Reinhard Zimmermann, eds, Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press, 2013) 523.

167. [2008] 1 AC 1174.

168. Ibid at 225-26, Lord Neuberger.

169. 101 DLR (4th) 129 at 165, McLachlin J.

170. Patel v Mirza, (2017) AC 467 at 191; Les Laboratoires Servier v Apotex Inc [2012] EWCA Civ 593 at 67; Stone & Rolls Ltd v Moore Stephens [2009] AC 1391 at para 7; Hewison v Meridian Shipping Services Ltd [2003] ICR 766 at para 82.

171. James Barr Ames, “Law and Morals” (1908) 22:2 Harv L Rev 97 at 99.

172. See SFC Milsom, Historical Foundations of the Common Law (Oxford University Press, 1981) at 296.

173. DJ Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) at 59-60 [Ibbetson, Historical Introduction].

174. Hulle v Orynge (The Case of Thorns) YBM 6 Edw IV, folio 7, placitum 18, Littleton J.

175. Another, not insignificant, reason was the fact that the number of procedural rules applicable to actions on the case, but not to trespass, made the former much more attractive to claimants such that case (which paved the way for the modern day action for negligence) became the action of choice in tort: see Ibbetson, Historical Introduction, supra note 173 at 156-57.

176. S Pufendorf, On the Law of Nature and Nations, 4th ed translated by B Kennett (Walthoe et al, 1729) at 3.1.6.

177. Ibbetson, Historical Introduction, supra note 173.

178. DJ Ibbetson, “Natural Law and Common Law” (2001) 5:1 Ed L Rev 4 at 4.

179. See, e.g., NE Simmonds, “Reason, History and Privilege: Blackstone’s Debt to Natural Law” (1988) 105 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (GA) 200.

180. “Every man ought to take reasonable care that he does not injure his neighbour; therefore when a man receives hurt through default of another, though the same were not wilful, yet if it be occasioned by negligence or folly the law gives him an action to recover damages”: Francis Buller, Introduction to the Law of Trials at Nisi Prius (Strahan & Woodfall, 1792) at 25.

181. Ibbetson, Historical Introduction, supra note 173 at 19.

182. See, e.g., PS Atiyah, Accidents, Compensation and the Law (Weidenfield & Nicholson, 1970); Royal Commission on Civil Liability and Compensation for Personal Injury (March 1978) Cmnd 7054 vol 1 ch 22.

183. For a summary of each, see Jane Stapleton, “Products Liability Reform—Real or Illusory?” (1986) 6:3 Oxford J Legal Stud 392 at 394-97.

184. 1987 c 43.

185. In saying this, I do not mean to suggest that any changes thus wrought will inevitably render tort law less coherent than it presently is (judged from the perspective of one or more of my target theories). My point is merely that changes in the ideological Zeitgeist have the capacity to ground changes that render tort less coherent.

186. For other examples of tort statutes thus inspired, see the various Acts of Parliament discussed in Arvind and Steele, supra note 103 at ch 3, ch 6, ch 7 and ch 9.

187. OW Holmes, The Common Law (Little, Brown & Co, 1881) at 77.

188. Ibid at 72.

189. G Edward White, “Tort Reform in the Twentieth Century: An Historical Perspective” (1987) 32:6 Vill L Rev 1265 at 1288.

190. For its responsiveness, in the United States, to other factors—like the introduction of contingent fee arrangements, and the relaxation of witness disqualification rules—see G Edward White, “The Emergence and Doctrinal Development of Tort Law, 1870-1930” (2014) 11:3 U St Thomas LJ 463 at 478-83.

191. Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law (Stevens & Sons, 1901) at 22.

192. Ibid.

193. Winfield, “Foundation of Liability”, supra note 23 at 5.

194. For a classic statement to this effect, see Allen, supra note 55 at 92, Lord Watson: “the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due”. See also, to like effect, ibid at 123, Lord Herschell and Crofter Hand Woven Harris Tweed Company Ltd v Veitch [1942] AC 435 at 442, Lord Simon.

195. See Quinn, supra note 55 at 506 and 524-25, Lords Halsbury and Brampton respectively. Malice is also an essential ingredient of liability in the torts of (i) misfeasance in a public office, (ii) abuse of process and (iii) malicious prosecution: see John Murphy, “Malice as an Ingredient of Tort Liability” (2019) 78:2 Cambridge LJ [forthcoming].

196. [2002] 1 AC 32.

197. The cases concern negligently caused mesothelioma, and liability may be attributed to D1 even if (as a matter of non-provable) fact, the fatal asbestos fibres were yet to be inhaled at a workplace run by D2. All that D1 ever did was expose C to the risk of inhaling potentially fatal asbestos fibres; and yet D1 may be held liable in negligence.

198. For evidence of a conscious judicial effort to do this, see Klarman, supra note 52 at 1501. Note, too, the argument that the overtly anti-trade union Lord Chancellor, Lord Halsbury, “almost invariably put service to the Conservative Party above judicial qualities” when appointing new members of the judiciary: see B Abel-Smith & R Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (Heinemann, 1967) 129.

199. For an enumeration and analysis of these policy concerns, see Sarah Green, Causation in Negligence (Hart, 2015) ch 6.

200. Hoffmann, supra note 71 at 105 [emphasis added].

201. Lord Goff, “Judge, Jurist and Legislature” (1987) 2 Denning L J 79 at 81.

202. Ibid at 82. Note, too, the free hand of Powys J when he formulated (the forerunner to) the misfeasance tort: “This action is primae impressionis; never the like action was brought before”: Ashby v White (1703) 2 Ld Raym 938 at 944.

203. Ibid.

204. See supra, note 16.

205. In the early days of the English writ-system, new remedies were created freely enough: see Winfield, Text-Book on the Law, supra note 23 at 2. And in much more recent times, Lord Clarke has expressed his faith in “the capacity of our tort law for pragmatic growth in response to true necessities” whatever they may be: Willers, supra note 78 at para 89.