The Role of Intention in the Tort in Wilkinson v Downton

EMERGING ISSUES IN TORT LAW, Jason Neyers, Ericka Chamberlain, and Steve Pitel, eds., Hart Publishing, 2007

21 Pages Posted: 5 Aug 2011

See all articles by Denise G. Reaume

Denise G. Reaume

University of Toronto - Faculty of Law

Date Written: 2007

Abstract

Lord Hoffmann’s decision for the court in Wainwright v Home Office takes the rather striking view that Wilkinson v Downton was really grounded in negligence and not a separate cause of action at all. This analysis strikes me as anachronistic - it imputes a modern sensibility about and understanding of the tort of negligence to a judge operating at the dawn of the development of negligence as we now know it. More importantly, by converting these cases into proto-negligence cases, Lord Hoffmann erases most of what is interesting in the reasoning in the case law over the years. The judges have been struggling to articulate a cause of action; I just don’t think that they have been struggling to articulate negligence. I aim to support this claim through a careful reading of the early cases, starting with the English cases, and then crossing the Atlantic to survey the Canadian scene. I will argue that the cases as a whole defy the very modern structure that Lord Hoffmann wants to impose on the area.

Keywords: Tort Law, Negligence

Suggested Citation

Reaume, Denise G., The Role of Intention in the Tort in Wilkinson v Downton (2007). EMERGING ISSUES IN TORT LAW, Jason Neyers, Ericka Chamberlain, and Steve Pitel, eds., Hart Publishing, 2007, Available at SSRN: https://ssrn.com/abstract=1905079

Denise G. Reaume (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
514-398-6694 (Phone)

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