Tort Law Defences: A Defence of Conventionalism

77 Modern Law Review (2014), 493-512

Edinburgh School of Law Research Paper No. 2014/07

21 Pages Posted: 13 Feb 2014 Last revised: 2 Apr 2015

See all articles by Eric Descheemaeker

Eric Descheemaeker

University of Melbourne - Law School

Date Written: February 8, 2014

Abstract

This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences – and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp’s book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’: in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as ‘dualism’. Contra Goudkamp, the present article seeks to defend unitarianism and also – at least when it comes to what the author calls ‘justification defences’ – the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp’s attempt to consider defences as a whole: the main reason – on which the author does not himself rely – is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.

Keywords: tort law, defences, conventionalism, justification, self-defence, privilege, consent, defamation, immunity, limitation

Suggested Citation

Descheemaeker, Eric, Tort Law Defences: A Defence of Conventionalism (February 8, 2014). 77 Modern Law Review (2014), 493-512, Edinburgh School of Law Research Paper No. 2014/07, Available at SSRN: https://ssrn.com/abstract=2395119

Eric Descheemaeker (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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