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Tort Theory at the New Millennium



Copyright (c) 2001 The American Society of Comparative Law, Inc.
The American Journal of Comparative Law

Winter, 2001

49 Am. J. Comp. L. 147

LENGTH: 6578 words

REVIEW ESSAY: Tort Law at the Beginning of the New Millennium. A Tribute to John G. Fleming's Legacy

NAME: FRANZ WERRO

SUMMARY:
  ... The essays deal with a variety of subjects, including matters as diverse as the theoretical foundations of tort law, classical or less classical questions of negligence and strict liability, products liability, alternative schemes for accident compensation, the protection of human rights and privacy through tort law, as well as some aspects of the challenges arising from the harmonization of European legal systems. ... Rylands v. Fletcher was traditionally seen as a rare example of common law strict liability, and it was this traditional understanding that inspired the authors of the American Restatement (Second) of Torts to include a strict liability rule for abnormally dangerous activities. ... Stanton wonders whether the English legislator should develop a general principle of strict liability, either on the basis of the Rylands v. Fletcher rule, or on the basis of other considerations. ... This leads him to think that the case in reality provides an awkward example of a strict liability rule. Moreover, based on opinions expressed in Rylands v. Fletcher and taking into account the development of the strict liability rule in the American Restatement, he comes to the conclusion that foreseeability has always been a prerequisite of so-called strict liability. ...  

TEXT:
 [*147] 

"John Fleming [...] was one of the most influential and brilliant scholars and writers of the twentieth century." 1 Such a statement could not be more accurate nor more appropriate when one wishes to celebrate John Fleming's legacy. As a former European LL.M. student of his, I would only add that he was also a wonderful teacher and a great adviser.

John Fleming's career and work have recently been honored by two remarkable collections of essays: The Law of Obligations. Essays in Celebration of John Fleming, edited by Peter Cane and Jane Stapleton, and Torts Tomorrow. A Tribute to John Fleming, edited by Nicholas J. Mullany and Allen M. Linden. Both books gather many brilliant contributions by a wide range of authors who, in their careers as judges or academics, have drawn on the teachings of John Fleming and who are proud of having been his students, if only through the study of his books and articles.

The essays deal with a variety of subjects, including matters as diverse as the theoretical foundations of tort law, classical or less classical questions of negligence and strict liability, products liability, alternative schemes for accident compensation, the protection of human rights and privacy through tort law, as well as some aspects of the challenges arising from the harmonization of European legal systems. Each contribution reflects Fleming's profound belief in the utility of comparative law, but also his conviction that tort law cannot  [*148]  be studied nor practiced without taking into account its social and economic background as well as the practical problems that shape tort law litigation. 2 Taken together, these essays present a rather comprehensive picture of what tort law in common law countries (with some Continental European digressions) is about today.

All the contributions contained in The Law of Obligations and Torts Tomorrow would deserve to be reviewed and discussed by itself. However, to reflect their intellectual richness and their diversity would unavoidably surpass the limits of any review. In the present essay, I will thus attempt to use the contributions in order to highlight questions that in my view merit special attention today.

What Place for Tort Law?
 
One of the fundamental questions today concerns the role of tort law in relation to alternative compensation schemes for accidental losses. It is well known that, in the course of his academic career, John Fleming became increasingly skeptical about the ability of the law of tort to provide an adequate tool for compensating personal injury losses. 3 Fortunately, his concerns have been echoed and pursued by scholars in different countries. One of them is Stephen Sugarman who has repeatedly proposed to substitute tort law compensation for personal injuries with a social security compensation scheme. 4 This proposal is also expressed by other contributors, although not always for the same motives. Lewis Klar, for example, argues that personal injury losses which do not result from another's wrongful conduct should be compensated through social security schemes rather than through tort law. He wishes to reserve liability in negligence to instances of moral blameworthiness. 5 Justice Izhak Englard's suggestion to compensate medical injuries through a no-fault insurance scheme is primarily motivated by considerations linked to medical liability law, namely the doctrine of informed consent. He argues that the failure to inform the patient about possible risks of a medical intervention should be sanctioned through tort law, but that such failure should not allow the patient to seek compensation, where the doctor is not shown to have acted with negligence. 6 Interesting questions directly related to the tort vs. insurance debate are also raised in Andre Tunc's account of the French liability regime  [*149]  for road traffic accidents, 7 and in Harold Luntz, analysis of the interplay of different sources of compensation. 8

It seems that the debate over the role of tort law and competing compensation schemes is nourished by two main concerns: One is the desire to distribute accident costs in a fair way, the other is the need to reduce the frequency of accidents as efficiently as possible. Obviously, views on how these goals may be achieved will differ depending on political beliefs. Thus, compensation schemes can be classified on a scale ranging from 'libertarian' to 'communitarian' according to how much importance they attach to individual responsibility as opposed to guaranteeing a basic compensation to all accident victims. In 'real life', however, these models are rarely found in their pure form. In part, this is due to the inevitability of political compromises. It does also have to do with the fact that, once implemented, a particular compensation scheme may be assigned different goals than those pursued by its initial proponents. For example, tort law can be largely characterized as a traditional and 'conservative' compensation model because of its focus on individual responsibility. However, when in the 1960ies, it began to be used as a vehicle for 'public interest litigation' against large corporations, it was perceived as progressive, and endorsed by victim and consumer groups. Yet, the fact that tort law may have sanctioned corporate wrongdoing, not least because the juries were impressed with the 'David and Goliath resonance' of such cases, can hardly be considered a sufficient refutation of the more general arguments against this system of compensation. Doubts as to whether tort law alone is able to provide fair and efficient compensation for personal injury cases persist. In the wake of John Fleming's ideas, I believe that this objective would be better served if the tort system was coupled and complemented by a basic social insurance coverage for all accidents.

To an American - but probably less so to a Canadian - reader, this may sound an unrealistically communitarian proposal and, moreover, one that is unlikely to be feasible in the near future. 9 To an European reader, however, such a proposal will seem quite acceptable. In fact, most European countries have to a larger or lesser extent adopted comprehensive insurance schemes for industrial accidents, and some have also included non-work related accidents. Under Swiss law, for example, all subordinate employees are subject to mandatory accident insurance for all types of accidents. Independent contractors and professionals may also join the insurance on a  [*150]  voluntary basis, and most do. The insurance provides compensation for medical treatment and loss of income, both temporary and permanent. Compensation awards are determined on the basis of the victim's income at the time of the accident, up to a maximum income of 100'000 Swiss Francs. The insurance is financed by the employers (for work-related accidents) and by the insured employees (for othr accidents). The insurance is automatically subrogated into the victim's claims against the tortfeasor (if any), but the victim can directly sue the tortfeasor for claims which are not covered by the insurance scheme, such as the uncovered amount of pain and suffering or damages for lost income in excess of the insurance caps. Thus, victims of accidents can receive basic compensation for their injuries without having to go through lengthy litigation. At the same time, willful and even negligent conduct continues to be sanctioned through tort law. This last aspect seems important to me, not only because tort law should keep its rightful place in the order of obligations in the new century' (cf. Professor Mullany and Justice Linden in their introduction to Torts Tomorrow), but, perhaps more importantly, because I believe that victims need to be shown that justice is being done. 10 I also believe that tort law can contribute to shaping individual (or corporate) behavior in a socially desirable way. 11 Finally, it may be true that loss distribution and deterrence are no convincing reasons for recognizing a duty of care on part of a particular defendant, as pointed out by Jane Stapleton. 12 They are, however, relevant factors for choosing between fault-based liability and alternative compensation schemes.

Products Liability
 
In recent years, products liability is one the fields of tort law that seems to have best enabled some change, in the sense that it has contributed to render manufacturers aware of the need to make safer products. This is not to say that important issues do not remain unclear and controversial. To a larger or lesser degree, the standard of liability still is a subject of discussion and hesitation. It is not yet always clear if and to what extent products liability must become independent of fault or not, as illustrated by Stephen M Waddams' account of the state of the law in the Canadian common law  [*151]  Provinces. 13 Much debate also has surrounded the recent proposals on the question of liability for development risks and important divergences between the European and the United States approaches have ensued in the definition of the defense that producers may invoke. 14 It should be noted however that where strict liability has clearly been enacted, much simplification has been achieved in the implementation of the law. Because the insurance companies are unlikely to challenge the principle of their liability, most of the litigation is reduced to discussing the amount of damages and is settled outside the courtroom. This, at least in part, explains why there has been so little case law in Europe, despite the transposition of the EC directive of 1985.

At the international level, important questions of conflicts of law issues still arise, as is convincingly demonstrated by Werner Lorenz. 15 Yet a further insight is brought at this level by Martin Davies' essay on the harmonization of national product liability regimes, which is of great interest to a European reader working on the means for achieving legal integration. 16 This contribution tends to demonstrate that different standards in products liability are no obstacle to international trade because they are generally counter-balanced by other market factors. Thus, a manufacturer from a country with relatively mild liability rules may well have lower production costs than a manufacturer in the country of consumption. However, this comparative advantage is likely to be compensated by higher premiums for liability insurance in the country of consumption. If there is a substantial difference between the liability and safety standards of the two countries, the manufacturer may even be barred from exporting his products at all. Hence, producers from countries with a liability standard lower than the one in the country of consumption should not be substantially privileged. Manufacturers domiciled in the country of consumption may, however, suffer a certain competitive disadvantage if their products are more expensive than those imported. To this, Davies objects that the desire to promote domestic industries is no argument for legal harmonization, at least not, where (unlike in the European Union) no commitment to realizing a common market has been made. Moreover, he argues that the Anglo-American desire to internalize liability costs into the price of products may not be shared by countries where the living conditions are poorer, and where it may be more important that products are available at a reasonable price.

 [*152] 

Tort Law and Commercial Interests
 
As John Fleming did, I believe that another area where tort law continues to play an important role is the wide field of economic torts. This is echoed in many of the contributions to the two books that, in one way or another, tackle the ever ongoing debate about the proper boundaries between contract and tort law. Gerald H D Fridman, for example, describes how commercial interests may be protected through new torts. One illustration is the tort of unlawful interference with trade or business which was derived from an older doctrine sanctioning the inducement of a third party into breaching its contract with the plaintiff. 17 More examples are provided by Canadian and Australian cases where courts have awarded damages in tort for breach of a fiduciary duty or for breach of a duty to act in good faith.

While Fridman welcomes these developments, Lewis Klar is more skeptical about the implications that economic torts have on established principles of contract law, such as privity of contract, or the requirement of consideration. He argues in particular that the 'disappointed beneficiary' cases are an example of tort law purporting to solve 'problems which are outside its mandate', 18 and thus criticizes the fact that tort law would give disappointed beneficiaries of an unexecuted will the right to sue the testator's lawyer for expectation damages. 19 Justice Robert Brooking analyzes a similar problem that arises when professional builders are sued in tort by subsequent owners of houses which turn out to be defective, 20 as it was the case in the controversial Australian case of Bryan v. Maloney. 21

In a broad analysis of the factors that help decide on the existence of a duty of care, Jane Stapleton responds to some of the objections advanced against an extension of tort law. 22 She quite correctly remarks that, since Donoghue v. Stevenson, a defendant is barred from invoking the limited scope of his contractual obligations to escape liability in tort towards a third party. She also denounces the artificial distinctions that have been drawn in pure economic loss cases, in particular when such loss results from the acquisition of defective property. Yet another perspective is brought by Andrew Burrows, who provides useful insights into a somewhat more technical problem that arises when a plaintiff can sue multiple wrongdoers,  [*153]  both in contract and/or in tort. 23 Professional defendants, in particular auditors and members of the construction industry, have recently begun to claim that the traditional rule of joint and several liability should be replaced with proportionate liability. Burrows rejects these claims, arguing that, where each of several defendants is fully responsible for the damage caused, there is no reason why he or she should not have to pay the full amount of compensation. To prevent an uncontrollable expansion of professional liability, one should instead, and subject to the control on unfair terms, allow professional defendants to limit their liability not only to their clients, but also to third parties to whom they may owe a duty of care.

To my mind, the different observations made in the two books confirm that tort law does contribute to the protection of pure economic interests. The proper limits of this protection remain however surrounded with considerable uncertainty. Although one may share Lewis Klar's uneasiness about the 'disappointed beneficiary cases', I do believe that tort law has an important role to play when it comes to repairing the consequences of an unlawful invasion of interests that victims were not able to adequately protect by concluding a contract. This may be the case if they lacked the required bargaining power to insist on adequate contractual protection, but also if they had no reason to suspect that their rights would be invaded by a third party. Thus, while it may seem inappropriate to award expectation interests in tort in situations where one could have concluded a contract, I fail to see why, as a matter of principle, tort law should not sanction inappropriate or unfair contractual relationships. It remains that the debate over the proper place of tort and contract will always be an open debate as it is ultimately nourished by political and philosophical views on the boundaries of private autonomy.

Tort Law and Human Rights
 
While economic torts have been occupying courts throughout the second half of the past century, the association of tort law with the protection of human rights is of more recent origin. Several contributions are devoted to this subject, and some reveal a trend often referred to in Europe and elsewhere as the constitutionalization of private law, an important phenomenon that increasingly blurs the often questionable dividing line between private and public law.

Lord Bingham of Cornhill shows how, in the absence of a comprehensive statutory code of human rights, the English law of torts has helped safeguard the very interests that are protected by basic human rights, though with undeniable shortcomings in certain areas,  [*154]  such as privacy. 24 Sir Anthony Mason pursues these reflections by examining whether tort law is an appropriate tool for sanctioning the violation of human rights. 25 More specifically, he investigates the difficulties arising from the different functions of human rights and tort law: Traditionally, human rights aim at limiting or invalidating the exercise of government power and are considered as part of public law. The remedies available in tort law, by contrast, are generally sought against private individuals. Sir Mason shows that, despite the difficulty and, sometimes, reluctance to conciliate these two approaches, human rights law has influenced the reshaping of tort law in all major common law jurisdictions.

This seems particularly the case for the tort of defamation. The methodological tools by which this tort has been constitutionalized in Australian law are highlighted in Michael Tilbury's essay. 26 Gerald H.L. Fridman's account of the tentative emergence of new torts in areas such as harassment and discrimination, and Lord Cooke's discussion of employers' liability for damaging references, 27 confirm the impression that the protection of a person's reputation, autonomy and integrity lies at the heart of recent developments in the law of torts. In the field of medical liability, this is illustrated by Justice Englard's discussion of the protection that tort law can provide in relation to the patient's right of self-determination, 28 as well as by Nicholas J Mullany's critical account of the non-recoverability of psychiatric injuries resulting from the communication of distressing news. 29

Classical Problems Revisited
 
Besides revealing 'new trends' in tort law, both books present a wealth of reflections on classical questions. This is namely the case of Justice Beverley M. McLachlin's contribution on causation in negligence, 30 or of Stephen Todd's essay on liability of public bodies which, he argues, should be governed by the concept of negligence just as much as liability of private entities is. 31 A truly classical question also and, moreover, one that arises in tort law and criminal law  [*155]  alike, is examined by James Gordley: 32 Can one be held liable for harm which one neither intended nor brought about through one's negligence but which occurred while attempting to commit another wrongful act? On the basis of a detailed analysis of sources of canon law, and inspired by the principle of commutative justice, Gordley suggests that in cases like this the defendant should be held liable whenever the activity in which he engaged while causing the harm is considered unlawful, either because it is susceptible of harming others or because it interferes with another's property interests.

Gary T. Schwartz's 33 and Keith M. Stanton's 34 analyses of the Rylands v. Fletcher rule may not be quite as historically rooted, but they are of great practical interest also. Rylands v. Fletcher was traditionally seen as a rare example of common law strict liability, and it was this traditional understanding that inspired the authors of the American Restatement (Second) of Torts to include a strict liability rule for abnormally dangerous activities. However, this conception was questioned in 1993 and 1994. First, the House of Lords held that liability under the Rylands v. Fletcher rule required foreseeability of the harm. 35 Shortly after, in an even more radical step, the High Court of Australia found that the rule of Rylands v. Fletcher should be totally absorbed by the law of negligence. At the same time, it broadened the negligence standard by recognizing extensive non-delegable duties of care on part of a defendant who hired an independent contractor. 36

Both Keith M. Stanton and Gary T. Schwartz use these two decisions to engage in more general reflections on the role of strict liability in English and American law. Both agree that strict liability should be seen as a distinct head of liability, but that its scope of application is relatively small, not least because the law of negligence has steadily been broadened. Stanton wonders whether the English legislator should develop a general principle of strict liability, either on the basis of the Rylands v. Fletcher rule, or on the basis of other considerations. He concludes that the concept of 'ultra-hazardous activity,' which was deduced from Rylands v. Fletcher, is too vague a concept for this purpose. In the absence of valuable alternatives, he recommends to leave the state of the law as it is, i.e. to accept the fragmentation of the existing strict liability torts. Schwartz centers his reflections on the facts and on the background of Rylands v.  [*156]  Fletcher. This leads him to think that the case in reality provides an awkward example of a strict liability rule. Moreover, based on opinions expressed in Rylands v. Fletcher and taking into account the development of the strict liability rule in the American Restatement, he comes to the conclusion that foreseeability has always been a prerequisite of so-called strict liability. He argues that this should continue to be the case, so that strict liability should not be imposed unless the defendant engaged in conduct that he knew, or should have known, to be risky and unless, furthermore, this conduct was the exclusive cause of the injury. From a European perspective, this may appear to be a surprisingly mild understanding of strict liability. In part, it may, however, be explained by the fact that, in many Continental European countries, strict liability for specific risks is provided for in special statutes, and that the decision as to whether a particular activity is qualified as particularly risky or not has already been made by the legislator. Interestingly, this could change if the Swiss draft statute on tort law were to be adopted. Indeed this project proposes to give the judge the power to define ultra-hazardous activities sanctioned by strict liability. 37

As is shown by Tony Weir's comprehensive review of the law of negligence, Rylands v. Fletcher is only one of several common law torts exposed to the influence of negligence thinking. 38 Often, he argues, this denotes an undifferentiated desire to shift losses to solvent defendants. Not always does this trend turn out to be beneficial for the plaintiff. The tort of trespass, for example, traditionally did not depend on considerations of reasonableness nor on proof of any damage. Recent court rulings have eroded this principle by excusing cases of trespass to the person and trespass to goods by the fact that the tortfeasor was behaving reasonably. This has substantially lessened the protection of a person's freedom and property, in particular in relation with unjustified arrests and search warrants.

While Tony Weir would prefer the law of negligence to withdraw from some of the torts it has invaded into, James L R Davies, speaking for Australian law, seems to take a rather different stance. 39 He asserts that breach of statutory duty should be recognized as a form of negligence. Too many inconsistencies have been associated with  [*157]  this tort, he argues, and statutes, in particular criminal statutes, have unduly been used as basis for the imposition of strict liability.

In conclusion, there are undoubtedly indications that strict liability, being understood as liability that rests on causation alone, is in retreat throughout the common law world. In part, this trend may be due to practical difficulties, such as the one to identify 'ultra-hazardous activities.' This is, however, not the only explanation. There still seems to be a widespread belief that strict liability suffers from a general lack of moral justification. Yet, as skillfully demonstrated by Peter Cane, re-allocative justice may provide as strong an argument for imposing liability than retributive justice, which, he argues, underpins fault-based liability. 40 One important area where this reasoning has found wide acceptance is the principle of vicarious liability of employers. Yet, while the principle is well-established, courts are reluctant to apply it to intentional wrongs of employees, as illustrated in Bruce Feldthusen's call for an extension of vicarious liability to sexual torts. 41 By contrast, the development in civil law countries provides certain examples of a growing importance of strict liability rules. Thus, under the French liability regime for road traffic accidents, foreseeability of the accident is completely irrelevant. 42 Even before the enactment of any specific products liability legislation, Swiss courts have adopted an extremely severe understanding of manufacturer's liability imposing safety checks on all out-going products and disregarding the black-letter rule allowing for exculpation. Finally, many European countries have adopted strict liability rules for environmental damage, without, however, completely excluding issues of foreseeability, as interestingly illustrated by recent discussions held at a symposium on Dutch and Japanese law. 43

Theoretical and Methodological Issues
 
Very much in the spirit of John Fleming, all of the authors contributing to the two volumes have embraced the comparative method, taking into account case law and writings from the many jurisdictions marked by Fleming's teachings, but also from civil law countries. In that respect, each of the different essays shows the utility of comparative law. More systematic analyses of the value, but also of the obstacles to the study of comparative law can be found in Basil Markesinis' essay on the background of wrongful birth/wrongful life  [*158]  cases in different jurisdictions, 44 as well as in Hein K<um o>tz' contribution on whether a future European Civil Code should contain a general provision on good faith. 45

Reinhard Zimmermann's and Nils Jansen's contribution is dedicated to a more specific but central problem, namely the question of how a legal system accommodates judicial reinterpretations and modifications of the law. 46 Their reflections are inspired by recent court rulings in different common law jurisdictions which changed the law of restitution on an important point. As a consequence, payments made under agreements considered valid by the time of their conclusion could suddenly be recovered because these agreements were now qualified as invalid. This raises the question of how the retroactive effect of judicial changes can be reconciled with citizens' legitimate reliance in the law. Zimmermann and Jansen investigate this question for German law, considering aspects of private law, constitutional law and legal methodology. Despite obvious rule of law requirements such as consistency and predictability of the law, civil law courts commonly refuse to apply the principle prohibiting retroactive legislation to the judicial law making. While they rightly acknowledge the existence, as well as the legitimacy of judicial law making, Zimmermann and Jansen conclude that, at least in private law disputes, there is indeed no need for extending the prohibition of retroactivity to the judiciary. They consider that the principle of good faith constitutes an appropriate tool for paying due consideration to the parties' reasonable reliance. 47 Despite Zimmermann's and Jansen's rejection of the declaratory theory of judicial decisions, I wonder if their proposal does not rest too much on a renewed understanding of that same theory: They consider that the binding force of judge-made law is conditional on its rationality, and they seem to implicitly assume that the reasons advanced by a court creating a new or overturning an existing rule could have been anticipated by the parties. In German law, the principle of good faith may have proved a workable concept for protecting the parties' reliance in the prevailing understanding of the law, but I doubt whether this is a sufficient tool. The prohibition of retroactivity should require at least in certain cases that judicial pronouncements be only prospective. 48

 [*159]  Whether or not tort law today occupies its 'rightful place in the order of obligations' is a question on which the contributors to The Law of Obligations and Torts Tomorrow are likely to disagree. However, none of them would probably contest that, at the beginning of the new millenium, tort law occupies a very important position not only in the order of private law but also in the general realization of the rule of law. The boundaries between contract and tort are far from settled, and likely to be less and less, as tort law is called upon to fulfill new tasks, such as the protection of human rights or personality rights. The many contributions devoted to this subject, but also to economic torts, show that issues of morality have not lost their relevance for tort law, although it is widely recognized that they are largely inappropriate when it comes to accident compensation. The number and the diversity of the participants to this debate certainly prove how justified John Fleming was to give importance to the voyage of ideas.



Legal Topics:

For related research and practice materials, see the following legal topics:
TortsStrict LiabilityAbnormally Dangerous ActivitiesGeneral OverviewHealthcare LawTreatmentPatient ConsentInformed ConsentGovernmentsLegislationEffect & OperationRetrospective Operation

FOOTNOTES:


Click here to return to the footnote reference.n1. Janet O'Sullivan, Review of The Law of Obligations: Essays in Celebration of John Fleming, The Cambridge Law Journal 642 (1999).



Click here to return to the footnote reference.n2. As Justice Michael D. Kirby AC CMG describes in "Comparativism, Realism and the Economic Factor - Fleming's Legacies," in Torts Tomorrow, these very qualities explain Fleming's lasting influence on the tort law of the common law world.



Click here to return to the footnote reference.n3. Cf. J.G. Fleming, "Is There a Future for Tort?," (1984) ALJ 131.



Click here to return to the footnote reference.n4. Sugarman, "Personal Injury and Social Policy - 'Institutional and Ideological Alternatives,'" in Torts Tomorrow.



Click here to return to the footnote reference.n5. Klar, "Downsizing Torts," in Torts Tomorrow; cf. also Peter Cane, "Retribution, Proportionality, and Moral Luck in Tort Law," in The Law of Obligations, at 173.



Click here to return to the footnote reference.n6. Englard, "Informed Consent - The Double-Faced Doctrine," in Torts Tomorrow.



Click here to return to the footnote reference.n7. Tunc, "Traffic Accidents Compensation Under Tort Law and Under a Specific Law: the French Experience," in The Law of Obligations.



Click here to return to the footnote reference.n8. Luntz, "The Collateral Source Rule Thirty Years On," in The Law of Obligations.



Click here to return to the footnote reference.n9. Cf. Linden, "Torts Tomorrow - Empowering the Injured," in Torts Tomorrow, who predicts a reduction rather than an expansion of social security compensation.



Click here to return to the footnote reference.n10. Cf. McLachlin, "Negligence Law - Proving the Connection," in Torts Tomorrow and, more extensively, Justice Linden, in particular his remarks on 'compliance empowerment' and on 'didactic empowerment.'



Click here to return to the footnote reference.n11. Sugarman, in "The Smoking War and the Role of Tort Law," in The Law of Obligations, examines the limits of this argument in the context of the anti-tobacco campaign.



Click here to return to the footnote reference.n12. Stapleton, "Duty of Care Factors: a Selection from the Judicial Menus," in The Law of Obligations.



Click here to return to the footnote reference.n13. Waddams, "New Directions in Products Liability," in Torts Tomorrow.



Click here to return to the footnote reference.n14. Howells & Mildred, "Is European Products Liability More Protective than the Restatement (Third) of Torts: Products Liability?," 65 Tenn. Rev. 985 (1999).



Click here to return to the footnote reference.n15. Lorenz, "Some Thoughts About International Product Liability," in The Law of Obligations.



Click here to return to the footnote reference.n16. Davies, "Product Liability in International Markets," in Torts Tomorrow.



Click here to return to the footnote reference.n17. Fridman, "The Evolution of New Torts," in Torts Tomorrow.



Click here to return to the footnote reference.n18. Klar, "Downsizing Torts," in Torts Tomorrow.



Click here to return to the footnote reference.n19. Ross v. Caunters [1980] 1 Ch 297; White v. Jones [1995] 2 AC 207. In the cases discussed, prospective legatees were granted damages in the amount of the benefit expected under a planned will that failed to materialize because of the negligent conduct on part of the testator's lawyer.



Click here to return to the footnote reference.n20. Brooking, "Bryan v. Maloney - Its Scope and Future," in Torts Tomorrow.



Click here to return to the footnote reference.n21. Bryan v. Maloney (1995) 182 CLR 609.



Click here to return to the footnote reference.n22. Stapleton, "Duty of Care Factors: a Selection from the Judicial Menus," in The Law of Obligations.



Click here to return to the footnote reference.n23. Burrows, "Should One Reform Joint and Several Liability?," in Torts Tomorrow.



Click here to return to the footnote reference.n24. Lord Bingham of Cornhill, "Tort and Human Rights," in The Law of Obligations.



Click here to return to the footnote reference.n25. Sir Anthony Mason, "Human Rights and the Law of Torts," in The Law of Obligations.



Click here to return to the footnote reference.n26. Tilbury, "Uniformity, The Constitution and Australian Defamation Law at the Turn of the Century," in Torts Tomorrow.



Click here to return to the footnote reference.n27. Lord Cooke of Thorndon, "The Right of Spring," in The Law of Obligations.



Click here to return to the footnote reference.n28. Cf. Englard, "Informed Consent - The Double-Faced Doctrine," in Torts Tomorrow.



Click here to return to the footnote reference.n29. Mullany, "Negligently Inflicted Psychiatric Injury and the Means of Communication of Trauma - Should It Matter?," in Torts Tomorrow.



Click here to return to the footnote reference.n30. Cf. McLachlin, "Negligence Law - Proving the Connection," in Torts Tomorrow.



Click here to return to the footnote reference.n31. Todd, "Liability in Tort of Public Bodies," in Torts Tomorrow.



Click here to return to the footnote reference.n32. Gordley, "Responsibility in Crime, Tort and Contract for the Unforeseeable Consequences of an Intentional Wrong: A Once and Future Rule?," in The Law of Obligations.



Click here to return to the footnote reference.n33. Schwartz, "Rylands v. Fletcher, 'Negligence and Strict Liability,'" in The Law of Obligations.



Click here to return to the footnote reference.n34. Stanton, "The Legacy of Rylands v. Fletcher," in Torts Tomorrow.



Click here to return to the footnote reference.n35. Cambridge Water Co. v. Eastern Counties Leather [1994] 2 ACV 264.



Click here to return to the footnote reference.n36. Burnie Port Authority v. General Jones Pty (1994) 179 CLR 520.



Click here to return to the footnote reference.n37. Cf. art. 50 of the draft: "If damage is caused through the realisation of the specific risk associated with an ultra-hazardous activity, the person in charge of that activity shall be held liable, whether or not the activity is authorised by the law. An activity shall be considered ultra-hazardous if, because of its nature or because of the type of substances, facilities or powers employed, it is susceptible of creating frequent and serious harm, even if exercised with all due care required by the state of art, in particular, if comparable risks are already subject to statutory strict liability."



Click here to return to the footnote reference.n38. Weir, "The Staggering March of Negligence," in The Law of Obligations.



Click here to return to the footnote reference.n39. Davies, "Farewell to the Action for Breach of Statutory Duty?," in Torts Tomorrow.



Click here to return to the footnote reference.n40. Cane, "Retribution, Proportionality, and Moral Luck in Tort Law," in The Law of Obligations.



Click here to return to the footnote reference.n41. Feldthusen, "Vicarious Liability for Sexual Torts," in Torts Tomorrow.



Click here to return to the footnote reference.n42. Cf. Tunc, "Traffic Accidents Compensation under Tort Law and Under a Specific Law: the French Experience," in The Law of Obligations.



Click here to return to the footnote reference.n43. Ewoud Hondius (ed.), Modern Trends in Tort Law (1999), and, more particularly, G. Betlem & M. Faure, Some Trends in Recovery of Soil Clean-Up Costs and Damages for Personal Injury in Europe (147-182).



Click here to return to the footnote reference.n44. Markesinis, "Reading Through a Foreign Judgement," in The Law of Obligations.



Click here to return to the footnote reference.n45. K<um o>tz, "Towards a European Civil Code: The Duty of Good Faith," in The Law of Obligations.



Click here to return to the footnote reference.n46. Zimmermann & Jansen, "Quieta Movere. Interpretative Change in a Codified System," in The Law of Obligations.



Click here to return to the footnote reference.n47. Zimmermann & Jansen, at 301 ff., justify their argument by the fact that courts do not establish general rules for future cases.



Click here to return to the footnote reference.n48. See Thomas Probst, Die <um A>nderung der Rechtsprechung: Eine rechtsvergleichende, methodologische Untersuchung zum Ph<um o>chstrichterlichen Rechtsprechungs<um a>nderung in der Schweiz (civil law) und den Vereinigten Staaten (common law) (1993), 707 f., 709 ff.






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