| From: | James Lee <j.s.f.lee@bham.ac.uk> |
| To: | 'Nick Ferrett' <nick.ferrett@chambers33.com.au> |
| Andrew.Dickinson@CliffordChance.com | |
| Neil.Foster@newcastle.edu.au | |
| VOLOKH@law.ucla.edu | |
| CC: | obligations@uwo.ca |
| Date: | 18/05/2011 07:58:55 UTC |
| Subject: | RE: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature |
Dear Colleagues,
Another example which immediately comes to mind is in the English authorities on psychiatric harm. In White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 a majority of the House of Lords declined to allow negligence claims by police officers traumatised by their attendance at the Hillsborough stadium disaster. Lord Steyn for the majority argued (at 500) that
‘the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as Alcock and Page v Smith as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.’
The case is also interesting for the majority’s express invocation of ‘distributive justice’ as a reason for denying the claims.
Their Lordships noted that the Law Commission had produced a report on liability for psychiatric harm (in the wake of the Court of Appeal’s decision in White, which had provoked controversy). However, despite the express appeal to Parliament, there has still been no legislative action on the point, with the Ministry of Justice belatedly concluding (nearly ten years later) that: ‘The arguments in this complex and sensitive area are finely balanced. On balance the Government continues to take the view that it is preferable for the courts to have the flexibility to continue to develop the law rather than attempt to impose a statutory solution.’ (The Law of Damages: Response to consultation’ (CP(R) 9/07) 51).
Best wishes,
James
--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom
Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk
From: Nick Ferrett [mailto:nick.ferrett@chambers33.com.au]
Sent: 18 May 2011 05:15
To: Andrew.Dickinson@CliffordChance.com; Neil.Foster@newcastle.edu.au; VOLOKH@law.ucla.edu
Cc: obligations@uwo.ca
Subject: Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature
The Dyson Heydon article (often called "the job application") is available here:
Nicholas Ferrett
Barrister
Level 33, 400 George Street, Brisbane. 4000.
Telephone: 07 3003 0440 | Facsimile: 07 3012 7811
DX950
Email: nick.ferrett@chambers33.com.au
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From: "Andrew.Dickinson@CliffordChance.com" <Andrew.Dickinson@CliffordChance.com>
Date: Wed, 18 May 2011 14:04:46 +1000
To: "Neil.Foster@newcastle.edu.au" <Neil.Foster@newcastle.edu.au>, "VOLOKH@law.ucla.edu" <VOLOKH@law.ucla.edu>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature
In a private international law context, judicial restraint on the ground of the desirability of legislative intervention also played a significant part in the reasoning of the High Court in Dow Jones v Gutnick (2002) 210 CLR 575, applying traditional choice of law principles to Internet defamation, and Voth v Manildra (1990) 171 CLR 538, refusing to adopt the English "more appropriate forum model" for staying proceedings.
Kind regards
Andrew
--------------------------
Andrew Dickinson
Consultant
Clifford Chance LLP
10 Upper Bank Street
London E14 5JJ
Direct line: +44(0)20 7006 8634
Mobile: +44(0)7881 588871
From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Wednesday, May 18, 2011 01:45 AM
To: Volokh, Eugene <VOLOKH@law.ucla.edu>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature
Dear Eugene et al;
In Australia one case that springs to mind where there were a number of things said about not extending common law liability (also in the privacy area, like the case Benjamin mentioned, but only a century or so later!) was ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 http://www.austlii.edu.au/au/cases/cth/HCA/2001/63.html where the High Court of Australia declined to create a new tort action for breach of privacy (though they were able to hold that the old equitable action for "breach of confidence" could be extended to cases involving personal privacy in some situations.)
Sometimes the practice of judges extending tort liability where the legislature has chosen not to tread can be called "Judicial Activism". One of the current members of the High Court, Justice Dyson Heydon, wrote a (locally) celebrated article on this just before his appointment to the Court in 'Judicial Activism and the Death of the Rule of Law' (2003) 47 Quadrant 9. (I think versions of this paper are also available in more traditional law journals.) His views continue to be debated by local academics, of course. I notice that the current Chief Justice of the High Court, French CJ, has a paper on the general issue of "judicial activism" on the HC website at http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj10Nov09.pdf .
Regards
Neil
On 18/05/2011, at 4:41 AM, Volokh, Eugene wrote:
Dear colleagues: Judges in tort cases sometimes reject a proposed extension of tort liability on the grounds that it should be left to the legislature (and not just in cases where there’s already a statute foreclosing such liability, which can indeed only be modified by the legislature). The judges obviously recognize that they have the power to create new tort law rules, and that most tort law rules were indeed created by judges; but in some situations, they conclude that they shouldn’t make certain decisions, and that it is only the legislature that should be able to make them. Are there any good articles that discuss this as a general matter, both descriptively and normatively? Many thanks,
Eugene Volokh
UCLA School of Law
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
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