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Tort Law and the Legislature

Posted on 20 September 2011

Working papers for forthcoming book, "Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change"

British Academy-funded Workshop, York, May 2011 Summary

With the generous support of the British Academy, a work in progress session was held on 5-7 May 2011 at the University of York, hosted by York Law School. The Programme of speakers appears below. We are particularly grateful to our external chairs, Richard Mullender (University of Newcastle) and Sir Stephen Laws QC (First Parliamentary Counsel) for their contribution to the sessions. The working papers form the basis of chapters for the forthcoming collection Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change, to be published by Hart Publishing in 2012 and edited by TT Arvind and Jenny Steele.

Emerging themes

The papers illustrated the depth, breadth, and variety of statutory influence over the law of torts, and the impact of legislation in this field of common law. Emerging themes from the workshop include the following:

  • The possibility that tort law is misleadingly defined as essentially ‘judge-made’. The influence of legislation has been far-reaching and diverse, to the extent that the received understanding of the subject may be seriously unbalanced. What factors have contributed most to the evolution and growth in the law of tort, particularly the tort of negligence? Are statutes as influential as the key judicial decisions? Might the subject appear in a different light if groups of statutes or legislative trends are addressed? The shape of protection offered to various interests may look very different from this point of view. This in turn raises the question of whether tort law could be said to be unified, or to represent a variety of purposes. But it is also possible that continuity may be discernible in legislative purpose over time, offering a rival account of (parts of) the law of tort.
  • The blurring of apparently sharp distinctions between the character and role of statute and common law in the evolution of the law of tort. It may not be helpful to describe principle as the role of the courts and to approach policy as linked essentially with ‘politics’, as tends to be the case. There is a huge variety of legislative material and some of it is readily identified as ‘lawyers’ law’. Nevertheless policy always plays a role in its design and adoption. In many instances there is continuity between legislation and common law, and judges have played a key role in much legislative reform. Policy expressed through legislation may not have a merely transient or specific effect, but might also have a lasting influence in the common law.
  • Some of the papers raise the question of the pervasive need, in any style of law-making or legal development, to balance interests. This raises the question of whether a ‘principle fallacy’ is at play in our approach to tort. Interests are very clearly in play in judicial decision-making, as judges well know.
  • There is a set of questions about the role of individuals who achieved legislative reform, and the relevant factors which influenced them. Archival research in respect of some of the legislation has shed light on such issues, including the considerable involvement of lawyers and judges in legal reform.
  • There may be greater continuity and/ or partnership between common law and statute than is often thought. Although courts and ‘Parliament’ are sometimes said to be in a position of conflict (the development of ‘super-injunctions’ under the influence of the Human Rights Act 1998 offering an illustration), a conflict with the legislature may turn out to be relatively rare. Rather, continuity and shared influence between common law and statute comes in many guises, particularly given the judicial influence over law reform. Reform by courts and by legislators each raises different issues including the perceived limits of the judicial role and the capacity of both courts and legislature to act while balancing rival interests. A comparison with civilian systems suggests that this is not confined to the common law. There is also potential in common law systems for an overly deferential judicial response, perhaps concluding that legislation in a particular field offers the ‘last word’. The dynamics of the relation between courts and legislature invites further attention.
  • There is recognised to be a tension between the private and public dimensions of the law of tort. Some of the working papers raise the possibility that judges in deciding cases take account of the fact that the law of tort itself serves public functions or purposes, and that there has been considerable exchange between common law and statutory approaches. From this point of view, legislative interventions into the law of tort may be seen in terms of steering and supplementing the purposes of the law of tort, rather than supplanting it. Equally, statutory interventions may be placed along a continuum of serving more or less ‘political’ ends, though all are underpinned by policy.
  • A number of the contributions explore the question of the general and the particular in the law of tort. A variety of issues is involved here. For one, a number of reforms of quite general importance can be seen to have been motivated by rather particular concerns. For another, although scholars typically deal with the law of tort as a body of quite general principles concerned with wrongs of particular types, its impact is much greater in some areas than others, and this is brought about in part through the influence of legislation. If the perspective is broadened to include statutory forms of liability, this becomes a great deal clearer. In some instances, there are sound reasons for legislating to resolve particular issues rather than attempting to create general rules.
  • The range of types of legislation (and subordinate legislation) is notable. Some statutes attempt to micromanage and to deal with all aspects of a particular issue. Others attempt to steer the common law, perhaps aiming to achieve a broader change than a common law decision could achieve, and sometimes representing a change which is judicially supported and even instigated.
  • While legislation is sometimes regarded by common lawyers as likely to be carefully constructed and comprehensive, some of our contributors illustrate that legislation may frequently have consequences unintended by its framers, and some of these unintended consequences are explored. This is one aspect of the lasting influence of legislation: its impact is as susceptible to historical change as any form of law. Equally, some contributors explore the possibility that legislators struggle to design provisions which are sufficiently adaptable to achieve their desired outcomes.

Papers and speakers

  • A Civil Law for an Age of Statutes?
    James Lee (Birmingham)
  • The influence of tort law and legislation in Victorian articulations of capitalism and law
    Sarah Wilson (York)
  • Legislating for economic loss
    Keith Stanton (Bristol)
  • Trade Disputes Legislation and the Economic Torts
    Bob Simpson (LSE)
  • Development of personal injury law, especially negligence, over the 20th century
    Steve Hedley (Cork)
  • Tort Damages and Social Security Payments: Legislating For or Against the Welfare State?
    Richard Lewis (Cardiff)
  • Compensation Act 2006
    Annette Morris (Cardiff)
  • Tort and Compulsory Insurance
    Rob Merkin (Southampton) and Sheila Dziobon (Plymouth)
  • The Fatal Accidents Acts 1846 and 1976
    Donal Nolan (Oxford)
  • Law Reform (Contributory Negligence) Act 1945: Dynamics of Legal Change
    Jenny Steele (York)
  • The Occupier’s Liability Acts 1957 and 1984
    Stephen Bailey (Nottingham)
  • Statutes relating to injuries caused by animals
    Roderick Bagshaw (Oxford)
  • 1623 Limitation Act
    David Ibbetson (Cambridge)
  • Rivers Pollution Prevention Act 1876
    Michael Lobban (QML)
  • “Occupying the field: tort and the statutory scheme”
    Maria Lee (UCL)
  • Tort Law and Workmen’s Compensation Legislation: Competing Models?
    Simon Deakin (Cambridge)
  • The Crown Proceedings Act 1947
    TT Arvind ( York)
  • Government liability and the law of delict in Scotland
    John Blackie (Strathclyde)
  • Torts, Courts and Politics - The interplay between courts and legislature in continental Europe
    Willem van Boom (Erasmus University Rotterdam)