#16714 - Rights Theories - Aspects Of Obligations

Rights theories of tort try develop understanding of priv law obligations driven primarily, or exclusively, by recognition of rights we have against each other rather than other influences on priv law - e.g community welfare - Nolan

the loss model

The contrary/competing view

Idea: tort law concerned with determining when C would be able claim compensation for loss caused by D - stems from Lord Atkin judgement in Donaghue v Stevenson

extreme form = ‘all injuries done by 1 person actionable unless some justification recognised by law’ - Denning LJ (extra-j)

Embraced by Lord Wilberforce in Anns v Merton LBC

Generally = conventional view among judges

but academic opinion somewhat more divided

Stevens explains ‘loss model’ as:

overall object of tort law is to define cases in which law may justly hold 1 party to compensate another’ - Lord Bingham (Fairchild v Glenhaven)

‘damage is the gist of liability’ in negligence - Lady Hale (Gregg v Scott)

duty of care = ‘control device’ - Lord Nicholls (D) - about diff reasons why D has immunity from liability

Issues:

inadequate explanatory force - can't explain actionable per se torts - unnecessary complexity & incoherence

relies on use of policy considerations - inapt in priv law - only rights matter

rights analysis general features

1. Interpretative - aims to give the best account of tort law - evident in Stevens analysis - that’s his aim

• interpretavism is about trying understand legal concepts in terms of their meaning - Beever & Rickett

• can be contrasted with descriptive, historical or prescriptive approaches

• aim is giving best account of law as it stands

• Smith gives criteria for assessing success:

1. Fit - how well does theory fit the data?

2. Coherence - does it explain data coherently?

3. Morality - r/s between theory & view on how people ought behave

4. Transparency - to what extent does it account for reasoning of judges

2. Structural - again, Stevens states this - aims make clear structure of law

2. Monist - most rights theorists (e.g Stevens) takes view there is only 1 theory/fundamental

• thus all of tort law best understood by rights

• contrast with pluralism (below)

3. Formalist & non-instrumentalist - tort law internally intelligible & requires no ref to external purposes

• idea that general structural concepts determine the law - no need appeal policy - Stevens

stevens ‘tort & rights’:

General model: a wrong = breach of duty to someone else -> breach of duty = infringement of a right by tortfeasor

but to be tortfeasor, C must have a right against D

tort law concerned with secondary obligations generated by infringement of primary rights

Gist of tort = infringement of primary rights, not infliction of loss

Uses Hohfeldian taxonomy:

people have primary claim rights & claim rights correlate with duty

violation of primary right triggers secondary claim right - correlates with liability for person susceptible to action

Discovering our rights - can’t just say law recognises rights - question-begging

he says legal rights based on moral rights & moral rights can be deduced from nature/experience of ourselves & world/society we live in - just human reflection

says judges well-equipped decide moral qs coz pro experience & reflection on justice

Starting point of moral rights: do not do to others as you would not want done to you (golden rule)

Thus criterion for determining whether right should be protected = whether gives effect to golden rule

Essentially a neo-Kantian view - based on will theory - rights promote individual choice/autonomy

Rejection of policy considerations

says private law rights should be recognised at CL sole by ref to interpersonal moral rights & existence of right cannot & shouldn't be determined by ref to policy/community welfare (tho Parl can)

judges lack tech skills/dem legitimacy to make policy determinations

policy reasoning requires weighing of incommensurable considerations e.g Coventry v Lawrence pub interest v right of individual like 5m v 2

Classification of rights:

General: bodily safety, free movement, reputation, priv info, truth, property (a) land (b) goods (c) IP, public goods

Undertakings: contract, assumption of responsibility

Family

Accessory

Other

Law of torts not tort - rights protected can’t be reduced into single principle (Murphy) - no grand-norm

benefits of steven’s theory:

1. exposes deficiencies in other models

   e.g functional models - far more coherent/structured

2. exposes issues with loss model

   actionable per se torts which it cant explain & confusion over types of loss - Wagon Mound etc

3. explains some rules very well

   e.g that there is no duty rescue (omissions) - no right to be conferred a benefit & Murphy praises coherence he brings to PA negligence liability - says q should be whether PA had right do as it did - gets rid of justiciability ideas/policy!

criticism of steven’s rights theory:

1. it does not ‘fit’

   Goudkamp & Murphy make this argument, as does Cane

   Dworkin, pioneer of interpretavism said 1st requirement of any interpretation of any material is that it just fit that material - strong argument that S’ theory doesn't

   Murphy: it doesn't possess sufficient explanatory force to be a credible description of whole subject when it clearly fails to accommodate some well-established doctrines

   suggests this is nature of reductionist theories - sooner or later issues call into q value of theory as whole

   notes that theorists never seem question whether tort law a suitable candidate for theorisation in first place - very fact tort lawyers disagree on so any fundamentals makes it doubtful

   tort cobbled together by many diff judges, often ad hoc, idea they all motivated by overarching norm highly implausible

   G & M: say ‘wide gulf’ between his claims & actual state of law - unsatisfactory

   Murphy: too often S explains away well - established doctrines ‘anomalous’

   It is also suspect that what would ordinarily be considered ‘outliers’ are, to Stevens, tort’s leading cases & those considered most important = his outliers

   not Donaghue, Caparo & Rylands

   but Bradford v Pickles - no right to percolating water (property) thus no tort committed

   Allen v Flood - refusal re-engage workers coz of threat strike - claim failed coz intentional infliction of econ harm not actionable - Stevens says this supports him - no right to econ harm

   Magul Steamship v McGregor Cow - claimed conspiracy to injure econ interests - failed - Lord Bramwell: there is no priv right violated

   above all 1890s!!

1. Negligence generally

• Stevens describes as the ‘cuckoo in the nest’ - ‘misleads more than it enlightens’

• ‘anomalous’, a ‘historical accident’ - describes as an ‘uber-tort’ & ought be dismantled

• but theory supposed be interpretive not prescriptive!

• Fits with Cane belief that rights theories are ultimately ideological - as much concerned with influencing future of private law as with chronicling it

• In negligence, no underlying right tying it together - focus is on way loss accrued

2. Negligence: breach of duty - Goudkamp & Murphy

• establishing breach involves weighing benefits of taking precaution against cost - cases like Bolton v Stone, Paris v Stepney, Latimer v AEC

• Stevens acknowledges is a problem - cannot fit with his theory - D’s costs irrel coz is about C’s rights

3. Negligence: PEL:

• general rule in Eng law = no recovery - Stevens explains as being about lack of right to economic wellbeing thus no right infringed thus no recovery

• but this is not what courts say - Hedley Bryne v Heller/Spartan Steel v Martin both relied on floodgates argument! Policy!

• Sometimes PEL recoverable - assumption of responsibility - Customs v Barclays Bank & Steel v NRAM 18

• Stevens accepts AoR as being able create rights - draws analogy with bailment & equity/estoppel

• but says Smith v Bush wrong (disclaimed held unreasonable) coz explicitly said no assumption - still liable & White v Jones anomalous (assumption implied/imposed)

• same issue re interpretist/prescriptive? Also no clear judicial assertions about assumption

• Also Murphy points out there’s no justification given for why neg should look to bailment/estoppel & not contract re gratuitous undertakings - they generate a right, contract doesn’t

4. Rylands v Fletcher - Goudkamp & Murphy

• theory is all about C have antecedent right infringed

• but no such rights exist in rule in R v F - is a strict, primary liability rule, allocating risk to D w.o imposing a duty on D prevent it - Holmes, Jaffey

• thus it is a tort w.o a wrong - there is no correlative right!

• Stevens considers it an anomaly - does this mean shouldn't exist? Then prescriptive…

• Or does he mean outlier? but torts often give claim in absence of a right - unlawful means, inducing breach of contract, public nuisance - not to mention statute!

• also Stevens suggests might be part of ‘priv nuisance’ - unlikely in light of Transco v Stockport & in any event, would still exist

5. Unlawful means tort- Murphy

• another case where can’t identify any antecedent right

• any attempt by Stevens to explain as exception to privity in tort unsuccessful - comes down to fact is about loss & a policy decision

5. Defamation - Murphy

• slander, unlike libel, not actionable per se - must prove damage before can claim!

• clearly cannot be explained by rights theory!

• Stevens says anomalous but is based on idea that libel worse coz written is permanent - policy decision!

6. Illegality - noted by Goudkamp & Murphy

• Stevens considered it unnecessary to consider coz not specific to tort law but...