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Tort Law and the Legislature

Common Law, Statute and the Dynamics of Legal Change

Editor(s): T.T. Arvind, Jenny Steele
Media of Tort Law and the Legislature
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Published: 21-12-2012
Format: Hardback
Edition: 1st
Extent: 546
ISBN: 9781849461405
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP : £100.00
 

: 14 -21 days

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Loren Epson

About Tort Law and the Legislature

The study of the law of tort is generally preoccupied by case law, while the fundamental impact of legislation is often overlooked. At a jurisprudential level there is an unspoken view that legislation is generally piecemeal and at best self-contained and specific; at worst dependent on the whim of political views at a particular time. With a different starting point, this volume seeks to test such notions, illustrating, among other things, the widespread and lasting influence of legislation on the shape and principles of the law of tort; the variety of forms of legislation and the complex nature of political and policy concerns that may lie behind their enactment; the sometimes unexpected consequences of statutory reform; and the integration not only of statutory rules but also of legislative policy into the operation of tort law today. The apparently sharp distinction between judicially created private law principles, and democratically enacted legislative rules and policies, is therefore questioned, and it is argued that to describe the principles of the law of tort without referring to statute is potentially highly misleading. This book shows that legislation is important not only because of the way it varies or replaces case law, but because it also deeply influences the intrinsic character of that law, providing some of its most familiar characteristics.

The book provides the first extended interpretation of legislative intervention in the law of tort. Each of the chapters, by leading tort scholars, deals with an aspect of the influence of legislation on the law of tort. While the nature, sources and extent of legislative influence in personal injury law is an essential feature of the collection, other significant areas of tort law are explored, including tort in the context of commercial law, labour law, regulation and the welfare state. Essays on the Compensation Act 2006 and Human Rights Act 1998 bring the current state of the interplay between tort, politics and legislation to the forefront. In all of these contexts, contributors explore the deeper lessons that can be learned about the nature of the law of tort and its changing role and functions over time.

Cited with approval in the Singapore Court of Appeal by VK Rajah JA in See Toh Siew Kee vs Ho Ah Lam Ferrocement (Pte) Ltd and others, [2013] SGCA 29

Table Of Contents

1. Introduction: Legislation and the Shape of Tort Law
TT Arvind and Jenny Steele
Part I: Courts and Legislatures
2. Torts, Courts and Legislatures – Comparative Remarks on Civil Law Codifications of Tort Law
Willem H van Boom
3. Statutes and Tort Defences
James Goudkamp
4. The 'Compensation Culture' and the Politics of Tort
Annette Morris
5. A Civil Law for the Age of Statutes
James Lee
6. Trade Disputes Legislation and the Economic Torts
Bob Simpson
Part II: Legislating Fundamental Principle
7. The Fatal Accidents Act 1846
Donal Nolan
8. Law Reform (Contributory Negligence) Act 1945: Collisions of a Different Sort
Jenny Steele
Part III: The Process of Reform
9. Occupiers' Liability: the Enactment of 'Common Law' Principles
SH Bailey
10. The Animals Act 1971
Roderick Bagshaw
Part IV: Compensation and Statutory Purpose
11. Tort and Personal Injuries, 1850 to the Present
Steve Hedley
12. Tort Law and Workmen's Compensation Legislation: Complementary or Competing Models?
Simon Deakin
13. Legislating for Economic Loss
Keith Stanton
14. Recovery of State Benefits from Tort Damages: Legislating For or Against the Welfare State?
Richard Lewis
15. Tort Law and Compulsory Insurance
Rob Merkin and Sheila Dziobon
Part V: Tort Law and Public Law
16. Tort Law, Regulation and River Pollution: the Rivers Pollution Prevention Act and its Implementation, 1876–1951
Michael Lobban
17. Tort Law, Actors in the 'Enterprise Economy', and Articulations of Nineteenth-century Capitalism with Law: the Fraudulent Trustees Act 1857 in Context
Sarah Wilson
18. Occupying the Field: Tort and the Pre-emptive Statute
Maria Lee
19. Restraining the State Through Tort? The Crown Proceedings Act in Retrospect
TT Arvind
20. The Human Rights Act and its Impact on the Law of Tort
Richard Clayton and Hugh Tomlinson
Part VI: Conclusion
21. Bringing Statute (Back) onto the Radar: Implications
TT Arvind and Jenny Steele

Reviews

“As the best edited collections should, this enjoyable volume proves valuable on two levels. The component essays are unquestionably of a high standard, taken individually. But also, taken together, they pose deeper questions that are explored well by the editors in their introductory and concluding chapters.” –  Jonathan Morgan, The Law Quarterly Review, Volume 129

“Every one of the essays in this book is valuable in its own terms...If I had a recurring disappointment in reading this book it was that I could have wished almost all of the contributions to be longer and more detailed.
With various articles drawing on almost every area of life, the book could not fail to be perceived as relevant and important for lawyers generally. One might not, however, have predicted that it would also be quite such an absorbing read as it is.
” –  Daniel Greenberg, Statute Law Review

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