Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an 'eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results - these matters determine whether someone is a tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned tort law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on tort law's luck-sensitivity to argue that tort - which seems on its face to be a law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck. In this Article we are argue that the role of luck in torts does not undermine the case for understanding tort as a law of wrongs, nor does it make the case for dismissing tort law as morally arbitrary. Drawing upon the canonical articles on "moral luck" by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control. The Article proceeds by distinguishing and explaining two aspects of tort law's luck-sensitivity: (1) luck regarding whether one's tortious conduct causes damage, and, if so, how much ("causal luck"); and (2) luck regarding whether one's efforts to comply with tort law's objective standards are successful ("compliance luck"). Causal luck, we argue, does not introduce objectionable arbitrariness into tort law. On the contrary, it is a natural and necessary feature of a body of law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define "wrongs." We conclude by suggesting that careful attention to the particular senses in which torts are wrongs not only entails the rejection of familiar critiques of tort, but also sheds light on values that tort law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1015930_code254274.pdf?abstractid=1015930&rulid=9769943&mirid=1

Tort Law and Moral Luck

This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umb...

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Common Law Tort of Negligence as a Tool for Deconstructing Positive Obligations under the European Convention on Human Rights

We are in the age of statutes; and it is indisputable that statutes are swallowing up the common law. Yet the study of statutes as a coherent whole is rare. In these three lectures, given as the 2017 Hamlyn Lecture series, Professor Andrew Burrows takes on the challenge of thinking seriously and at a practical level about statutes in English law. In his characteristically lively and punchy style, he examines three central aspects which he labels interpretation, interaction and improvement. So how are statutes interpreted? Is statutory interpretation best understood as seeking to effect the intention of Parliament or is that an unhelpful fiction? Can the common law be developed by analogy to statutes? Do the judges have too much power in developing the common law and in interpreting statutes? How can our statutes be improved? These and many other questions are explored and answered in this accessible and thought-provoking analysis.

Thinking about Statutes: Interpretation, Interaction, Improvement

This paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018) The Australian reports suggest reforms not only to state practice, but also to private law This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart

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Analysing institutional liability for child sexual abuse in England and Wales and Australia: Vicarious liability, non-delegable duties and statutory intervention

This article will trace the paths of trust law diffusion, with the dual aim of identifying the role of Japanese law in shaping the global evolution of the fiduciary norm and examining the doctrinal and conceptual implication that the understanding of these historic paths can bring about. The path of trust diffusion that started from England in the seventeenth century diverged into two routes. One route went around the Cape of Good Hope toward the East, through South Africa and India. The other path went West, crossing the Atlantic and across North America. These two routes met with each other in the early twentieth century, when the Trust Act of 1922 was introduced in Japan. The westbound diffusion continued when Japan imposed its law and industry regulation in Taiwan and Korea as part of its colonial expansion. While the colonial impact diminished over time after World War II, the common self-identification as civil-law jurisdictions and the similarities in economic growth models have led to the development of parallel trust doctrines in South Korea and Taiwan. On the eastbound route, Hong Kong and Singapore have emerged as the two major commercial hubs in Asia with vibrant trust practices based on English common law. Today, these two routes converge in mainland China, where trust industries have played a vital role in the development of the Chinese market economy since Den Xiao Ping declared the opening up policy in 1979. Over a long period of time and across a number of jurisdictional borders, many factors interacted to shape the law and practice of trusts. Those factors included financial pressures, legislative imitations, academic exchange of ideas, colonial rules, commercial competitions, and shifts in national wealth and demographics. Despite some signs of the harmonization of trust law worldwide, in the increasingly competitive global economy, trust service providers and their host jurisdictions are vying with each other for comparative advantages.

Japanese Law and the Global Diffusion of Trust and Fiduciary Law

The trust is today an international legal institution, firmly established in jurisdictions all over the world, including those in Asia. The process by which the trust and trust law were transplanted in Asia forms a rich tapestry of complex themes. A key development was the codification of trust law by the colonial government of India at the end of the nineteenth century. This embraced an ‘obligational’ model of the trust that removed the notion of ‘equitable ownership’. On the face of it, the Indian Trusts Act 1882 carried innovations in both form and substance. Although a closer examination reveals limits in the innovations, the Act proved influential in the failed attempts to codify the law in England and the transplantation of trust law into the mixed legal system of Ceylon and the civilian system of Japan. The historical analysis of these developments sheds light on modern debates about the transplantation of law in general, the comparative study of trust law and theoretical discussions about the natu...

Trust Law Goes East: The Transplantation of Trust Law in India and Beyond

The police do not owe a duty of care to protect victims from the criminal acts of a third party when investigating or suppressing crime save in exceptional circumstances. This is justified as an application of the omissions principle and on several other grounds. The article argues that most of these justifications are unconvincing and it sets outs a positive rationale for the imposition on the police of a duty of care in respect of sufficiently proximate victims of a negligent omission. The scope of this duty can be coherently delimited by re-adjusting the existing framework of negligence liability of public authorities.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/AC83F61745C4326FEE217D993868C08D/S0008197315001002a.pdf/div-class-title-negligence-liability-for-omissions-and-the-police-div.pdf

Negligence liability for omissions and the police

In NA v Nottinghamshire County Council the Court of Appeal held that a local authority is not liable under vicarious liability or for breach of a non-delegable duty when foster parents sexually or physically abuse a child that it has placed in their care. The note discusses the decision in the light of recent developments in the law. It is argued that the result is unsatisfactory in terms of doctrine and policy. It is further suggested that non-delegable duty, rather than vicarious liability, offers the most appropriate route for establishing liability. Language: en

Vicarious liability and non-delegable duty for child abuse in foster care: a step too far?

The article advances two propositions. The first is that the current law on the negligence liability of the police for failure to prevent a crime is unsatisfactory. The general rule of non-liability is based on two lines of argument, neither of which is persuasive. The Hill policy grounds used by the courts do not stand up to close scrutiny, whist the application of the pure omission rule to the police is also problematic. At the same time, the current law does not attach adequate significance to arguments in favour of liability. The second proposition is that the existing framework of negligence liability of public authorities can be re-adjusted to generate outcomes that better balance the valid considerations for and against liability in cases of police failure to prevent crime.

Stelios Tofaris

Papers

Trust Law Goes East: The Transplantation of Trust Law in India and Beyond

Negligence liability for omissions and the police

Vicarious liability and non-delegable duty for child abuse in foster care: a step too far?

Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink

Duty of care in negligence: a return to orthodoxy?