Rights Theories Notes

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 ...

Buy the full version of these notes or essay plans and more in our Aspects Of Obligations Notes.