Trespass to the person
Trindade 'Intentional Torts- Some Thoughts on Assualt and Battery'- Denning suggested in Murphy v Culhane that in actions for assault the judge or jury can take into account not only circumstances which aggrevate damages but those that mitigate them.
Battery must be done directly, this includes an unbroken series of events that end with contact with the plaintiff. Contact must be active not passive. Knowledge of the contact is not necessary eg while asleep, drunk or under anesthetic.
Assault- plaintiff must have knowledge of the threat.
Palmer and Steele 'Police Shootings and the Role of Tort'- Ashley v Sussex Police. In civil proceedings the burden of establishing self defence lies with the defendant and his mistaken belief had to be both honestly and reasonably held. This was held in the HoL. Lord Scott, when the rights of claimants run counter to the rights of others 'the civil law, and in particular the law of tort, must strike a balance between conflicting rights.' Lord Neuburger said any claim against the police man should 'ask the court to take into account what he had been told at the breifing, when considering whether his belief at the time he shot Mr Ashley was reasonable, even if what he was told was negligently relayed to him.' Issue in this case divided the Lords as to the function of the law of tort.
Feldman 'Containment, deprivation of liberty and breach of the peace'- case comment on Austin. 1) the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights is inherent in the whole convention. 2) no clear line between depreviation of liberty and restriction of liberty. 3) purpose of A5 is to prevent arbitrary detention. HoL concluded that the fact the police intended to prevent violence to the people prevented the containment of people for up to 7 hours being a deprevation of their liberty.
Desire to dismiss this case is understandable. Police were acting reasonably and carefully to protect people. The limited exceptions to the right not to be deprived of liberty under A5 were not well drafted to deal with containment short of arrest for preventitive purposes. The writer thinks it produced bad law.
Steel 'False imprisonment and the fetch of hypothetical warrant' - tort of false imprisonment is unconcerned whether a detention is pursuant to an unfair law. Only concerned whether liberty is removed without due legal warrant. Is the value of rule of law. Agreement by SC in Lumbar on first category (protection of bodily integrety,personality and liberty) would have been a positive advance consistent with developing authority and according adequate recognition of our most important rights.
McIvor 'Getting defensive about police negligence: The Hill principle, the HRA and the HoL'- Policy often pulled out to deny duty of care. 'There is no real reason for treating police defendants any differently to any other public authority defendant.' Hill- defensive practise argument carries little weight. Diversion of resources argument is more tenable but is applicable to all public bodies.
Van Colle- at HoL said Osman test was a constent and the high threshold had not been met as warning signs were less obvious.
Smith- claim against police struck out as 1) no sufficient relationship 2) public policy against liability of police defendants. Said Parliament to resolve not courts. Bingham was dismissive of the defensive practise argument.
Hill principle: Smith shows problems with Hill principle- 1) lack of understanding as to its nature and ambit 2) the tenuousness of defensive practise as the sole justification of immunity. Third party liablilty hostile-ness as imposes liability on wrong party. As a case of misfeasance Brooks shouldnt have come under Hill. Shouldve used Caparo. Until Brooks is challenged no chance of Hill being properly understood.
Lessons from Austrialia much more measured application of Hill.
Police immunity and HRA under A2- In Van Colle HoL showed police will rarely be liable under HRA. Likely that only 'outrageous negligence' set out in Brooks will pass Osman test of 'knowledge of real and immediate risk of harm to life.'
Duty of care and economic loss.
Stanton 'Hedley Byrne and Heller: The Relationship Factor'- tests of proximity are vague. In McNaughton said offers little help as only identifies 'certain matters which are likely to be of importance in most cases in reaching a decision to as whether or not a duty exists' Doesnt put weight on either part of the test. Courts have freedom but uncertainty for the parties. Courts have lost sight of importance of relationship between the parties.
Caparo guidelines on proximity- Bridge had 3 requirements for relationship of specific proximity in misstatement 1) defendant giving advice was completely aware of nature of transaction the plaintiff was contemplating, knew the advice would be communicated to him, and knew it was very likely that the plaintiff would rely on the advice in deciding whether or not to enter the transaction. Doesnt see directly dealing as a requirement. Oliver suggested should be 'member of ascertainable class.'
Interpreting Caparo- difficulties with classes. Reeman v Dep of Transport claim failed as class too generic. Identifiable class is lacking specific requirement. Still remains issue of how restricted class needs to be to make duty.
Duty of care and economic loss.
Indentified individual- some courts have required specific identity of individual to be known before they have recognised duty. This is a 'bright line rule' meant to give certainty of result. In Barex and much tighter test than Caparo.
Easy cases- many dont test duty of care as it is obvious on the facts. 'Mere foreseeability that a potential bidder may rely on the audited accounts does not impose on the auditor a duty of care to the bidder' Glidewell in Galoo.
Unidentified individuals- may be willing to make move to protect unidentitifed in certain circumstances. Happens with engineers, working on property, where charge for their services on basis of their knowledge of prospective use and the fact they cannot identify who will rely on them when the work is done. Shouldnt be able to avoid liability for negligence just because identity of person relying on work was not specified when the work was done.
Developing the law- can argue that an unidentified party will fall in the scope of duty of care but only if the purpose of the work can be clearly regarded as intended to protect identifiable interests of the unidentified. It appears now that the existence of an express assumption of responsibility for the interests of another will be regarded as exceptionally strong factor in the favour of recognition of duty of care.
Duty of care and economic loss
Barker 'Weilding Occams razor: pruning strategies for economic loss' many strategies for economic loss 3 authoritys of the HoL- i) three stages in Caparo ii) an approach which directs to reason analogically from existing categories of recovery, also from Caparo. iii) method based on assumption of responsibility by defendant and reasonable reliance by claimant. This version means must have impliedly agreed to be legally responsible for the claimants economic welfare. Hard to apply so Henderson now have to show defendant undertook task in knowledge that another relied on him for protection against harm. Objective test and generally preffered for economic loss.
Facts and decision- Customs and Excise case- held bank owes a duty to one in whose favour a freezing order has been made, to take reasonable care to preserve assets to the order for possible judgements. Duty arises when the writ is issued, not when the bank takes notice of it.
Policy- most arguments favour the creditor. The concern to maintain professional standards clearly pointed to liability. The fact the notice of orders precisely identified the creditor to the bank ruled out arguments about indeterminacy of class. The bank was under a distinct statutory duty to the court, this duty would not conflict with a duty of care to the creditor. The parties had not conciously structured their economic relations in such a way as to exclude or limit their liablity.
Duty of care and economic loss
Reasoning- Caparo has led to a positive result. Same conclusion could be reached by third approach. Two more steps needed for coherent approach to be found to duty question- a) the need for a single strategy- should have a single 3 stage methodology centrered on the incremental development of existing authority. Need for the right approach, not more approaches. b) rejection of the third approach- some want a complete abandonment of the third approach. Some defend it. The strong approach couldnt deliver justice. The weak version is also unattractive. Points raised in third approach are just as easily used as the first.
Conclusion- a more realistic appraoch would be that the courts choose between the first and third approach depending on policy concerns and facts. Should be a single scheme, of the first and second approaches. In this cases simplest is best. One which has a clear structure to thinking and allows the complexities to be more openly addressed.
Nolan and Bailey- 'The Page v Smith Saga: A Tale of Inauspcious Origins and Unintended Consequences' 2010.
- first instance given £162'000 on thin skull principle. Cover 1) that liability is imposed for the unforeseeable extent of a foreseeable kind of injury and 2) that liability is imposed for the unforeseeable devlopment of a foreseeable injury. Needs to arise from an exisiting susceptability.
- Decision in CoA- grounds of appeal included a challenge to the finding that Mr Page's symptoms were caused by the accident and an argument that the judge was wrong to find that the injury was foreseeable. Causation argument was rejected. King v Phillips Denning said 'the test of liability for shock is foreseeability of injury by shock'. Main question was that whether in a case where the claimant was a participant in the accident, not a bystander the foreseeability requirement was satisfied by showing Mr Page may suffer some physical injury. Proximity was not a substitute for foreseeability. Foreseeability was not established on the facts, an ordinary person would not have become mentally or physically ill.
- Decision in HoL- main focus on legal issues. Between claimants argument that 'the defendant should compensate the claimant for the personal injury sustained if it was reasonably foreseeable in the moments before the accident that the accident would cause him some personal injury'....
and the defendants contention that 'the test of foreseeability for nervous shouck is the foreseeability of damage by nervous shock.' Dissenting found proximity but no foreseeability. Majority said they preferred the 'simplicity of Ottons approach.' In case of primary victims, since defendant was under a duty of care not to cause the plaintiff foreseeable physical injury 'it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable pyschiatric harm.' They said that if it had been necessary to establish reasonable foreseeability of psychiatric injury the CoA had been wrong to find that some form of psychiatric illness was not a foreseeable consequence of the accident for a person of normal fortitude. Upheld Otton and established the defendants negligence had caused the harm.
- Two major aspects of Page- primary victim point (where physical injury to the claimant was a reasonably foreseeable consequence of the defendants negligence, the claimant is classified as a primary victim.' and the foreseeability point (that where a particular type of damage had to have been foreseeable by the defendant for the claimant to bring an action in respect of it, physical and psychiatric injury where to be treated as the one type of damage.'
McIvor 'A stressful business' 2005-
- applying the principles of employers liability to work related stress- 1) in some cases the harm is bought about due to the work itself or the conditions of employment eg workload. 2) In others down to claimants vulnerability. Claimants in the first category most likely to succeed. Duty of care is more easily found. Employer will be expected to take positive and effective action to target source of the risk. In second category they must show his work difficulties and the harm, have been specifically and directly bought to the attention of the employer before they have the level of foresight needed for duty. Need to be specific and strong. If duty does arise it can be easily discharged, defendants available resources are a consideration (eg did they see office counsellor?)
- Distinction drawn between harm cause by nature of the work and that which is essentially due to the claimants pre exisiting pyschiatric vulnerabilty accords with the basic legal principle between misfeasance and non feasance. Liabilty in relation to misfeasance is non contenious and easily established. Liability in respect of nonfeasance is much more exceptional and subject to control mechanism eg existance of special relationship
- a new category of recoverable psychiatric harm- Hartman served to entrench work related stress as a new and distinct category of recoverable psychiatric harm. Case seems to conflict with White v South Yorkshire Police. White made it clear there are not special responsibilites against shock in the employment relationship whilst Hartman says it does in gradually induced psychiatric harm. White was claiming employer shouldnt have allowed the event to happen where as Melville was how the employer acted after the event eg not providing counselling.
- a welcome development in the law on psychiatric harm- Hartman has sucessfully achieved its aim of clarifying the law on employers liability for occupational pyschiatric harm. By applying foreseeability test in a sufficiently stringent manner to ensure the duty is only imposed in exceptional cases where there is clear evidence of moral blameworthiness on the part of the defendant, the court has arguably managed to strike a workable balance between the concerns of employers and employees.
- Cases on this subject are- Hartman v South Essex Mental Health NHS Trust, Best v Staffordshire University, Wheeldon v HSBC Bank, Green v Grimsby and Scunthorpe Newspapers, Moore v Welwyn Components and Melvill v Home Office.
Breach of duty
Williams 'Politics, the media and refining the notion of fault- section 1 of the Compensation Act 2006' 2006-
- made in 2005 by Blair, as he was concerned that too many public servants were worried they might be subject to unfair legal actions and promised ways would be found to protect them from what he called a real problem. Better Regulation Task Force had concluded the year before the Britain wasnt beset by a litigation crisis.
- myth that the amount of claims is rising. 2 results from this: 1) memebrs of public more likely to make cases that lack merit 2) and a tendency among potential defendants to adopt socially and economically risk averse strategies. Organisations become less innovative, resources diverted unnecessarily and higher cost. BRTF have conceeded they wont win the argument whilst the media keep up the claims of compensation culture. Constitutional Affairs Committee thought that excessive risk aversion and misunderstanding about risk assesment are the real problems. S1 was made to counter this.
- liability fears and real world effects: BRTF claim 'fear of litigation does change behaviour' Speculative and hard to measure. It is said out of school trips have decreased. If so this appears to be because of the alarmist advice given by teachers unions about if things go wrong. Daily Telegraph and Mail said that fear of litigation is the main reason for less people opting into gynaecology and obstetrics.
breach of duty
Royal College did a study and made completely different conclusions. Politicians are keen to feed the myth when it serves their purposes.
- possible effects- Bill looks uncontraversial. Explanatory notes said it did no more than reflect existing law as expressed in recent judgements. Repeating what lawyers already know about common law is an unusual legislative strategy. Lack of connections between liability and real world behaviour, instructs judges to have regard to whether 'desirable activity' may be 'prevented' or 'discouraged'. Social utility is at risk of creating activity is one component of negligence helping to decide what the reasonable person would have done. Can take extra risk in hero situations. Uncertainty over what is 'desirable activity' may provide more litigation as may hold judicial leniency. In a capitalist society couldnt even pursuit of profit be deemed a desirable activity? Unhelpfully gov said that courts will be able to 'consider the wider social context of the activity'.
- Perception is sometimes more important than reality and is now a suitable subject for legislation apparently.Not well recieved. Constitutional Affairs Committee said it was 'well meaning' but 'unnecessary' and lacked clarity. Unlikely to reduce fear of litigation, defensive practises or the number of frivolous claims, nor is it likely to make valuable activity increase.
Breach of duty
M Brazier and J Miola 'Bye bye Bolam: A medical litigation revolution?' 2000:
Under Bolam the past 20 years has seen medical negligence claims rise dramatically, level of damages have risen, but proportion of sucessful claims is low. Increased use of Bolitho and establishment of National Institute of Clinical Excellence and the Law Commissions proposals should see courts no longer following blind assertions of good practise but evaluation of practise. Returning Bolam to proper limits.
Bolam came up with two part test 1) test is standard of the ordinary skilled man exercising and professing to have the special skill and 2) 'a doctors not guilty of negligence if he has acted in accordance with a practise accepted as proper by a body of responsible medical men skilled in taht particular act.' Made because judges are not qualified to make professional judgements on the practise of other learned professionals. When particulary difficult science judges are out of their depth.
A series of judgements have given rise to the perception that Bolam only requires that the defendant finds experts from his medical speciality prepared to testify they wouldve done the same. 6 medical neg cases before HoL in 16 years, 6 to defendants 0 to plaintiffs. Yet in other professional neg claims judges have made it clear expert opinion must be demonstratably
Breach of duty
responsible and reasonable. Edward Wong. In De Freita 5 neurosurgeons v 250 would consider it safe. If evidence was truthful the judge had to accept it. Bolam meant judgement by the courts was substituted by judgement by colleagues.
Blyth and Gold failure to give patient adequate advice on merits of treatment was simply a breach of duty issue to be judged identically to Bolam. Widened in F where HoL used Bolam where it was decided that a reasonable and responsible body of medical opinion sufficed.
Bolitho- central issue is causation rather than breach of duty. Held Bolam test did have application on deciding causation. Said court isnt bound to accept medical bodies evidence. Bolitho shouldnt be oversold as only applicable in small amount of cases. Restored Bolam to originial limits. Had effects: Marriot concluded doctors evidence wasnt defensible. The gov in paper 'New NHS' stated intentions to make national standards and guidelines for treatments. National Institute of Clinical Practise made to develop good practise guidelines, reviewing therapies and procedures. Day of the unfettered autonomy of the individual consultant is over.
Browne Wilkinson said court must be satisfied opinion has logical force and can withstand logical analysis. There is still a presumption non Drs will understand evidence. Judges analysis medical like other professional negligence claims.
Breach of duty
Dillon J said that while expert evidence wasnt immune from judicial scrutiny, set the burden of proof to justify rejection at an impossibly high level. Restores Bolam to normal limits. Law Commission- courts appear prepared to rein in the worst abuses of the Bolam test. Recommendation 'best interests' should continue to govern treatment for those who cant consent, statute should guide best interest. Demands focus on patients as individuals and drs cant hide behind medical opinion. Change of emphasis from professional responsibilities to patients rights.
R Kidner 'The variable standard of care, contributory negligence and volenti' 1991- a problem is where a plaintiff is aware of certain defendant characteristics which indicate the defendant is incapable of achieving the standard duty of care and yet still enters into a relationship with that person eg getting in drunk persons car. Other problems arre liability of children or insane, where it might be felt blameworthiness of defendant doesnt justify liability even though they havent lived up to reasonable man.
Function of standard of care- objectively determinedand that it 'eliminates the personal equation and is independent of the idiosyncracies of the particular person whos conduct is in question.' Reasonable man does have some characteristics eg reasonable surgeon.
Breach of duty
SoC has two roles- offers protection to the defendant so not liable unless careless and protects plaintiff by enabling compensation if not given expected standard. In protecting defendants issue is whether circumstances of defendants acts he shouldve acted differently. Considering if he could have is irrelevant. Comes down to relevant circumstances- child is but being inexperienced is not. Plaintiff shouldnt suffer harm from unusual and unexpected risks. Normally the functions have the same result but not when defendant is a member of class which is incapable of required safety level.
Legal theory of SoC- 1) Glasgow Corp v Muir- appropriate measure is purely objective. But in this case 'there is a sense in which the standard of care of the reasonable man involves in its application a subjective element.' We have an objective man and ask a subjective question. Which attributes should he have? leaves unclear how specific 'the circumstances of the case' maybe eg reasonable car driver or reasonable jaguar driver? Which attributes of real defendants should be on the reasonable man? Age? In general the relevant circumstance will be physical conditions the act takes place in eg snow. Can take into account the relevant level of skill to the level of safety expected. Attributes of reasonable man were determined by what risks we are expected to put up with.
Breach of duty
Legal theory 2: proximity derived: can look at it by relating it to source of obligation. Why does it arise? Normally doesnt make a difference unless know of disability.
Purely objective principle- Nettleship v Weston objective. In children it is the standard of the reaosnable child of that age. Standard of care cant be varied by nature of relationship of parties.
Holding out principle- idea standard of care might be varied where defendant has held himself out as having limited skill. Most likely to arise in contractual relationship. Phillips v Whitely, that of a reasonable jeweller not surgeon. Duty of care exists due to relationship but content of duty is limited as held out as having low skill levels. No good reason that the holding out principle can reduce standard of care below that which a person is entitled to expect for relevant act.
Proximity principle- level of care owed is determined by relationship between parties- important whether plaintiff knows of defendants defect. Problems- not necessarily logical to use relationship to determine content of the care. Could be determined as logically by other factors. Commonly agreed where person knows of the disability of defendant and puts himself in the relationship that he should bear part of the blame.
Breach of duty
SoC and defences to negligence- Volenti non fit injura- disfavoured by occasionally applied where risk is glaringly obvious. Contributory negligence- problems caused by variable standards of care are solved by this. Based more on causation than duty. Responsibility for putting self at risk can be recognised without too drastic an effect. Doesnt vary the standard of care but limits consequence of breach by reducing damages. Desire to limit recovery where the relationship between parties is such taht a plaintiff cannot be expected to be fully protected against the consequences of the defendants negligence. Balance between blameworthiness element of standard of care and the expected level of safety can be maintained.
S Steel and D J Ibbetson 'More grief on uncertain causation in tort' 2011-
Causation comes under stress when injury is caused by two separate events, either of which could have brought the injury. Need to hold jointly liable. Only has to be proved on balance of probabilities. Might isnt good enough though as in Wilsher.
Scope of Fairchild exception: the role of material increase in risk: it is misleading to say that the basis of liability in Fairchild is wrongful creation of increase of risk. This would suggest material increase in risk is sufficient for liability, which it isnt. For the rule to apply proof of causation on the balance of probabilities must be impossible, the claimant must have suffered the damage
and there must be a single agent at work. Fairchild allows reasons of justice, the evidential requirements of causation to be satisfied by proof of material increase. Fairchild relaxed evidential proof in certain circumstances, where it applies, proof of material risk is enough. In Barker- Hoffmann says the risk of damage which the defendant should be regarded as having caused is the creation of such a risk or chance.' Says the purpose of it is 'to provide a cause of action against a defendant who has materially increased the risk that a claimant will suffer damage and may have caused that damage but cannot be proved to have done so because it is impossible to show, on a balance of probabilities, that some other exposure to the same risk may not have caused it instead.'
Scope of Fairchild exception- possibility of proof- has to be shown the impossibility of proof on the balance of probabilities. Supreme Court suggest epidemoilogical evidence cant generate proof of causation on balance of probabilities.
The normal rule- assesment- the balance of probabiliites test requires fact finder to believe the defendants negligence actually caused the claimants injury, not that it probably did. A more flexible approach would avoid too much hinging upon classification of fact or probability and is very still much open to English law.
M Tse 'Tests for factual causation' 2008- orthodox approach is but for. Material contribution- a cause, not the cause. The essential element of necessity is still needed, not an alternative to but for but a clarification.
Robust and pragmatic approach- factual inference of causation- permits a trier of fact to draw a factual inference of causation on the basis of all facts and circumstance of a case even though medical or scientific expertise cannot arrive at a definite conclusion. Draws inference when might not satisy the but for test. Factual inference v inference from risk- confusion can arise from use of term inference to refer to both factual inference and inference from risk principle.
Deviations from the orthodox test- true causal indeterminancy- truly impossible to work out. Potentials- Either A or B or C or A and/ or B and or C. Impossible to say one factor more than another. Uncertainty to the immediate cause of injury and source of harm eg in Wilsher. Actuals A without B, B without A: independent overlapping factors. Causal chain complete with both defendants. When but for applied neither have caused it (false negative). Hypotheticals: completion of the train needs establishment of hypothetical conduct of third party. Depends on how third party would have behaved had defendant met his duty. Factual inference of causation to be drawn from the circumstantial evidence despite the absense of postive or scientific proof.
Judicial response to true causal indeterminancy- can only be determined from deviating from traditional causation test.
Limits on the application of the exceptional approach: multiple potential causative agents: approach cant be used when causal indeterminancy arises because of the existence of multiple potential causative agents, as opposed to multiple potential defendants. Designed to permit liability where it is impossible by science to know who caused the injury. The requirement for a single causative agent was asserted in Wilsher, as a precondition for the application of the 'robust and pragmatic' factual inference.
M Stauch- 'risk and remoteness of damage in negligence' 2001-
Two conflicting issues- those who would reduce remoteness entirely to an issue of legal policy, where court decides on law alone if defendant should pay, and those who would admit it is to do with policy, and there is a quasi factual role. An increasingly common view is that the language of foresight is used not for explanation but for conclusions.
Development of the law: conduct must have resulted in harm. Unfairness of Polemis rule- harsh approach. No implication the defendant was aware of danger or if he could avoid it. Rise of risk theory- idea is defendant should only be liable for harm that is 'within the risk' that made his conduct a breach of duty. Has two advantages- 1) elimiated the unfairness of imposing liabilty in respect of a risk a reasonable person would have run. 2) the courts would be able to engage in one unified enquiry.
Problems with Wagon mound rule- finding an objective method of defining the harm. Reasonably foreseeable depends on the judge. Differences between Hughes and Doughty. The Scope of the duty approach- appealing to the scope and purpose of the legal rule which imposed duty on defendant to behave carefully. Only convincing in previous relationship cases.
Causation and risk: risk claims and causal generalisations- the enquiry post facto- in cases where the faulty conduct is the sole cause of harm there is no problem. Difficulties if harm involves some further causal condition. Reasonable foreseeability again, analysis in Jolley- harm from boat reasonably foreseeable. Owes more the pragmatism than principle.
Policy exceptions- defendant is liable although presence of further causal condition in the set was not reasonably foreseeable. 1) egg shell rule 2) cases where original injury serves to deprive the claimant of his autonomy and in that state he is unable to protect himself from further injury. Presumption is that harms that have already happened are part of the background with which the reasonable person must contend. The defendant is not liable although the presence of the further causal condition in the set was reasonably foreseeable- indirect harm eg novus actus interveniens.
Suggested the 'reasonable foreseeability test' should be applied not to the outcome in suit but to the causal set that gave rise to the harm. The relevant principles come from deep rooted notions of individual responsibility in accord with basis moral intuition.
P Davies 'the illegality defence and public policy' 2009-
Exact scope and content is unclear. Law Commission recommended that greater transaparency and consistency should be given by incremental reform by judiciary. Two part test formed- 1) reliance and 2) inextricable link. Scope of reliance not clear- has been applied to cases concerning contractual rights and tortious claims. Unsatisfactory- technical, arbitrary and notion of reliance is vague. Inextricable link- has flexibilitiy to reach a fair result. Rodgers commented vague language was unhelpful and likely to lead to conflict. Submitted this should be discarded and replaced with public policy. Civil law must be consistent with criminal law sentence. A necessary consequence of imprisonment is the fact they cant keep a job. Hoped Gray will make more transparent. Other justifications for illegality by the Law Commission are: futhering purpose of rule which the illegal conduct has infringed, preventing the claimant from profiting from his wrong, and deterrence and proportionality.
J Goudkamp 'The defence of illegality: Gray v Thames Trains' 2009-
First time defence of illegality used, narrow. Wide: when claimant caused his loss by committing an illegal act. Narrow: prevents damages being recovered in respect of criminal sanction.
This decision states when defence will be used. Hoffmann said the test for the wide form is 'simply one of causation.' Narrow version is so you dont frustrate laws of criminal law.
Analysis of narrow version- could be permitted in rehabilitive sentences said by Phillips, Rodger and Brown. So doesnt hinder efforts to rehabilitiate. Criminal courts sometimes look at collateral consequences when sentencing- have to consider if given loss constitutes part of a sanction. Is narrow version justified? Law laws said sanction shifting actions have the potential to hamper the criminal law, ii) tort shouldnt be able to do this and iii) narrow version will apply to any sanction shifting actions. Some say this is too simplistic. Assumes inconsistency should never be tolerated, but why should one type of law take precendent? May be justifiable.
Wide version- engaged if claimants illegal act cause his damage.Hoffmann said justified on gounds that it would offend public to compensate claimants. Unconvincing reasoning, tort law isnt concerned with just distributation. Not effective, doesnt deter offending or prevent wrongful profitting.
Lord Hoffmann said beside the point that they relied on the act. Should only be engaged when public policy wants it to be. Defence not engaged in every action based on illegal act.
They erred in using the wide version of the defence so Gray is a poor decision. Moore Stephens muddied the water on the defence. Paved over distinction between wide and narrow.
The Illegality Defence (Law Commission No 320 2010) - not possible to lay down strict rules when defence should apply. Courts should consider policy that underlies defence and apply to facts. Should attempt to do justice. Should deter illegal conduct and not allow legal system to be abused by criminals.
Recommendations- 2009 recommended courts make law clearer, more certain and less arbitrary by explaining policy decisions behind decision. Courts have become more open. Should be left to common law developments.
See Law Reform (Contributory Negligence) Act 1945- 1(1)