LAWCOMM 778 - Special Topic: Selected Topics in Tort Law
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.
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.
- 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.
- 90% research essay of 6,500 words
- 10% course participation
Research essay due at 12 noon, Thursday 23rd August 2018.
Criteria and assessment
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 extent to which the student has displayed a grasp of the doctrinal and normative issues
- The analysis and synthesis of material
- The ability to draw worthwhile conclusions
Class participation will be assessed over the full span of the course, and this may include some presentations from members of the class. Quality rather than quantity will be assessed but clearly if a student is not present for all the classes, it will be 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 the lecturer is very aware that mistakes are part of learning.
|Dates:||12- 4 June 2018 and 19-21 June 2018|
|Venue:||Building 810, Room 3.40
1-11 Short Street
|Assessment due date:||12 noon, 23 August 2018|
Postgraduate Student Adviser
Law Student Centre
Level 2, 1-11 Short Street