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. We will look in particular at the following questions.
  • Mental injury
    In the United Kingdom the House of Lords has drawn a distinction between “primary” and “secondary” victims, and as regards the latter has adopted a multi-faceted proximity analysis for determining the duty issue. However, the High Court of Australia and the Supreme Court of Canada have declined to adopt the approach taken in the UK cases, whereas in New Zealand the question has not been finally determined. In light of the decisions elsewhere we will consider what the law in NZ governing liability for mental injury ought to be.
  • Omissions
    A principle whereby citizens are under no general legal obligation to help or rescue others or to shout warnings or to provide a haven from danger might appear to be at odds with ordinary principles of common morality. We will consider the policy reasons for the principle and, importantly, the exceptions where a duty positively to act for the benefit of another person has come to be recognised. By way of example, a nice question is whether a geneticist might be under a duty to disclose genetic risks to relatives of the proband.
  • Public bodies
    Particular difficulties are posed by claims in negligence against public bodies with a duty or power to act for not acting to prevent harm being done by others. Public bodies frequently have wide-ranging duties and powers which can impact on the public at large in all kinds of ways. They cannot be open to action by all who might be harmed in some way by the negligent exercise or non-exercise of their statutory responsibilities. We need to point to suitable principles identifying where a line should be drawn.
  • Liability for financial loss
    Ever since the landmark decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964 ), there has been a continuing debate about the basis for imposing a duty of care in cases where the plaintiff complains of negligently inflicted financial loss. A requirement that the defendant should have assumed responsibility for his or her words is often put forward as the test, but sometimes the question is whether there is a “special” or “proximate” relationship between the parties. We need to consider what these tests mean and to determine the relationship between them.
  • 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. A related issue concerns the liability of multiple defendants each trying to blame another or others and possible reform of the rule of liability in solidum.
  • 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 analogous developments in the context of New Zealand’s accident compensation scheme.
  • 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. 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, and we will examine the relationship between these two forms of liability.
  • 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.

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