Minority Values and the Reasonable Person of Torts

SSRN Electronic Journal, 2002

for helpful comments. I began working on this Article almost a decade ago, but abandoned it after writing a preliminary draft. That 1992 draft, which has never been published, but which I circulated in manuscript form to a handful of readers, has occasionally been cited in law reviews.

Journal of European Tort Law, 2020

Over a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author's model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model's operation by applying it to the 2018 SCC's decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

2015

In the following paper we will be mapping tort law in the common law, reflecting on the divergence between corrective and distributive justice and their main theoretical defenses deployed by Anglo-American scholars. The concepts are in turn portrayed in their proper context: a legal culture shaped historically different from the continental legal culture. However, at a deeper level, both traditions are motivated by the same goals: how to provide justice for the victims of tort law. Because the road to destination is different, the common law having distinct ways of addressing torts, the continental jurist my need another sets of concepts to understand this domain of law.

The Cambridge Law Journal, 2008

Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases:

Legal Studies, 2017

In this article we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine’s operation in first instance courts. Our dataset comprised every appellate decision in which contributory negligence was an issue that was handed down during the study period and which we were able to access electronically. The most important findings include the fact that appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50 per cent. Keywords: Negligence, contributory negligence, apportionment of damages, Law Reform (Contributory Negligence) Act 1945, appellate decisions, empirical study.

SSRN Electronic Journal, 2011

Conventional wisdom in tort law holds that an injurer's negligence, a product design defect, and a victim's contributory negligence should all be decided by weighing the costs and benefits of the relevant activity. In multiple-victim accidents, the current paradigm maintains that liability should be determined by comparing aggregate costs with aggregate benefits. However, this aggregate liability paradigm-adopted by courts, scholars and the Restatement (Third) of Torts-fails to account for the natural differences that exist between tort victims. When victims are heterogeneous with regard to their expected harm or costs of precaution-as they typically are in real lifebasing liability on aggregate amounts may be incorrect, and generate overdeterrence in some cases and under-deterrence and dilution of liability in other. A new paradigm for liability in multiple-victim torts is, therefore, needed. This Article suggests a novel and superior liability regime for multiple-victim accidents, which forsakes the traditional economic distinction between precaution costs and expected harm. The new liability regime combines disaggregated liability analyses with indemnification for efficient investment in precautions and a small "bonus," given as an incentive to exercise efficient care.

2018

1995

In this article, Dean Ackerman suggests how communitarian principles could be utilized within basic tort doctrines. He begins by providing a brief overview of communitarianism, paying great attention to Professor Amitai Etzioni's four-point agenda on rights and responsibilities. Next, Dean Ackerman considers what effects communitarian thought could have on tort law. Dean Ackerman proposes that communitarianism could be used not only to expand tort duties, but also to limit remedies for injuries. He also addresses possible conflicts that arise when these two principles compete. In conclusion, the article suggests how communitarianism might improve the processes used to resolve tort claims.

The Cambridge Law Journal, 2015

This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.