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Rights Theories Notes

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• 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 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:
i) 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)
ii) 'damage is the gist of liability' in negligence - Lady Hale (Gregg v Scott)
iii) duty of care = 'control device' - Lord Nicholls (D) - about diff reasons why D
has immunity from liability

• Issues:
i) inadequate explanatory force - can't explain actionable per se torts unnecessary complexity & incoherence iv) relies on use of policy considerations - inapt in priv law - only rights matter

i) 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:
a) Fit - how well does theory fit the data?
b) Coherence - does it explain data coherently?
c) Morality - r/s between theory & view on how people ought behave d) Transparency - to what extent does it account for reasoning of judges ii) Structural - again, Stevens states this - aims make clear structure of law ii) 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)
iii) 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



Page 1 of 7 • 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

• e.g functional models - far more coherent/structured

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

• 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!

Page 2 of 7

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