LAWCOMM 778 - Special Topic: Selected Topics in Tort Law

Lecturer biography

Stephen Todd is a Professor of Law at the University of Canterbury, a Professor of Common Law at the University of Nottingham in England, and a barrister-at-law. His interests are broadly in the field of civil liability and he lectures in the Law of Torts, Accident Compensation, the Law of Contract and Advanced Torts. He is general editor and principal author of The Law of Torts in New Zealand (7th edition, 2016), and a joint author of The Law of Contract in New Zealand (6th edition, 2018). He also has written Leading Cases in Song (2013), a light-hearted rewriting of some leading decisions as songs, with music and illustrations. In addition he is a contributor to the 14th edition of Charlesworth on Negligence (2018) and the 4th edition of Principles of Medical Law (2017), is the author of many articles on torts and contract and published in journals around the world, is a member of the Editorial Advisory Board of the Tort Law Review and the Journal of Professional Negligence, and is a contributing editor to the New Zealand Law Review.

In 2002 Stephen was awarded a Doctor of Laws degree by the University of Canterbury in recognition of his published works in the law of torts. In 2006 he became the fourth recipient of the John Fleming Memorial Prize for Torts Scholarship. This international prize is awarded every two years on the recommendation of a committee whose members are drawn from academics and judges around the world. In 2017 he was awarded a Rutherford Visiting Scholarship and was appointed as a Visiting Fellow at Trinity College at the University of Cambridge.

Course outline

The Law of Torts is a fast-moving subject and there is a constant need to examine and analyse the flow of new and interesting developments. The course will examine a number of selected topics in the field of torts, chosen from the following list, in all of which there have been significant new decisions of the courts in New Zealand and in common law countries around the world. The seminars accordingly will take a comparative approach, with the focus on the law in New Zealand but informed in particular by decisions in the United Kingdom, Australia, Canada and Singapore.

Syllabus

  • The duty of care. The nature of the inquiry into whether A owes B a duty of care continues to provoke controversy. Core questions regarding how, in principle, the question ought to be determined and, when recognised, the scope of the duty will need to be considered. A selection of cases concerning mental injury, the duty of positive action, the liability of public bodies and recovery for financial injury will illustrate some of the problems.
  • Actions arising from birth. The actions for wrongful conception, wrongful birth and wrongful life throw up acute problems of policy. Recent cases have considered how the relevant principles apply in the case of the birth of a disabled child, whether the policy underlying tort claims can apply in actions for breach of contract, and whether there can be a claim for negligence leading to a lack of genetic affinity between parent and child. There are also interesting analogous developments in the context of New Zealand’s accident compensation scheme.
  • Liability for leaky buildings. The legal ramifications of the leaky building disaster continue to unfold following the decisions of the Supreme Court in Sunset Terraces and Spencer on Byron. A question of key importance is the liability of manufacturers of defective building components which are used in constructing a leaky building. Another issue is whether a duty is owed by a negligent defendant to a building owner who is personally in breach of relevant building regulations in constructing the building.
  • The illegality defence. A string of recent decisions of the United Kingdom Supreme Court have considered the circumstances in which a plaintiff’s claim may be defeated by the plea of ex turpi causa non oritur actio. They have culminated in the adoption by a divided court of a multi-factorial approach, requiring the weighing up of the competing positions of plaintiff and defendant. This decision needs to be evaluated in the light of a range of other suggested tests for determining the question.
  • Vicarious liability. A series of decisions in the Supreme Court of Canada, in the United Kingdom Supreme Court and in the High Court of Australia, largely driven by claims involving allegations of sexual abuse, have dramatically widened the ambit of the doctrine of vicarious liability. The policy underlying these developments, and the question where a line should now be drawn, both require close consideration.
  • Non-delegable duties of care. A doctrine which may overlap with vicarious liability but with a different conceptual basis is that of the non-delegable duty. One application of the doctrine has been restated in the UK Supreme Court in terms of the courts’ recognition of a “protective relationship” assumed by a defendant in relation to a victim of injury. A recent UK Supreme Court decision considers the imposition on a local authority defendant of (i) a non-delegable duty, and (ii) vicarious liability in relation to allegations of abuse by foster parents of a foster child.
  • Misuse of the legal process. Following a decision of the Privy Council, the UK Supreme Court, in a 5-4 decision, recognised a new tort of maliciously procuring the institution of civil proceedings. The arguments for and against the new tort are closely balanced, as the split of opinion between the Law Lords clearly indicates. Other developments involving the torts of maintenance and champerty and of abuse of process have arisen in the context of the lawfulness of litigation funding agreements and of the assignment of causes of action in tort.
  • Claims for contribution between wrongdoers. The New Zealand Supreme Court has adopted a new and more wide-ranging approach to claims for contribution between tortfeasors under the Law Reform Act 1936 and to claims in equity for contribution between wrongdoers.

Assessment

Research essay of 6500 words, counting for 90% of the final mark, with course participation counting for the other 10%.

Criteria and Marking

Students will be individually assessed on the quality of their contributions with reference to the following criteria:

  • The extent to which the student has identified the important and relevant issues
  • The clarity of argument
  • The depth and thoroughness of understanding of the seminar material
  • The strength and clarity of the arguments presented
  • The overall lucidity of the contribution
  • The extent to which issues are placed in their wider context
  • The disply of grasp of the doctrinal and normative issues
  • Critical analysis of material
  • Overall synthesis of material
  • Correctness and elegance of style (particularly as to the written essay)
  • The ability to draw worthwhile conclusions

Class participation is assessed over the whole days of the course. Quality rather than quantity matters. If a student is not present for all the classes, it is impossible to achieve the maximum marks possible even if a student’s contributions are brilliant when he/she does speak. Students are reminded that the full range of marks is available to the lecturer in assessing class participation. Please be assured that mistakes are part of learning. Accordingly, “getting the law right’” is not the key focus of the class participation component of assessment. If students knew all the law from the outset, then here would be little point in them enrolling in the course. Rather, class participation is included to extend students and to assess students’ imaginative understanding of, and engagement with, the materials under discussion.

Course details

Timetable

Semester: One
Type: Intensive
Points: 15
Dates: 18 - 20 June and 25 - 27 June
Time: 5-8pm
Venue: Building 810, Room 3.40
1-11 Short Street

Contact details

Postgraduate Student Adviser
Law Student Centre
Level 2, 1-11 Short Street

Email: postgradlaw@auckland.ac.nz