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
Date Written: 2007
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
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