Central Issues in the Law of Tort Defences

Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith, 'Central Issues in the Law of Tort Defences' in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), 'Defences in Tort' (Hart Publishing, Oxford, 2014) ch 1.

Oxford Legal Studies Research Paper No. 62/2014

22 Pages Posted: 12 Sep 2014 Last revised: 2 Mar 2016

See all articles by Andrew D. Dyson

Andrew D. Dyson

University of Oxford - Faculty of Law

Frederick Wilmot-Smith

University of Oxford - Faculty of Law; All Souls College

James Goudkamp

University of Oxford - Faculty of Law

Date Written: 2015

Abstract

This chapter is an introduction to an edited collection on “Defences in Tort”, which is the first in a series of collections investigating defences in private law. This chapter is in three principal sections, though the sections are neither exhaustive nor hermetically sealed. We first examine what a defence actually is. We begin this section by considering a conundrum that pervades this field, namely whether it is possible to separate the definition of a defence from the consequences of something being a defence. We then consider the two main ways in which scholars have tried to understand the concept of a defence. In the second principal section of the chapter we turn to some general questions that the study of defences throws up across private law. Themes addressed here include the interplay between causes of action and defences, the tendency for the law to evolve defences that apply in tightly-confined situations rather than defences that are potentially generally applicable, the implications of defences for major theoretical accounts of tort law and the connection between statutes and defences. Finally, we draw out some themes and defences that are most commonly associated with the criminal law, such as the distinction between justifications and excuses, which may also be of relevance to private law theorists.

Keywords: tort law, defences, corrective justice, civil recourse, rights theory, limitation, necessity, duress, justification, excuse

Suggested Citation

Dyson, Andrew D. and Wilmot-Smith, Frederick and Goudkamp, James, Central Issues in the Law of Tort Defences (2015). Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith, 'Central Issues in the Law of Tort Defences' in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), 'Defences in Tort' (Hart Publishing, Oxford, 2014) ch 1. ; Oxford Legal Studies Research Paper No. 62/2014. Available at SSRN: https://ssrn.com/abstract=2495145

Andrew D. Dyson

University of Oxford - Faculty of Law ( email )

Corpus Christi College
Merton Street
Oxford, OX1 4JF
United Kingdom
447745033291 (Phone)
7745033291 (Fax)

Frederick Wilmot-Smith

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

All Souls College ( email )

14 High St
Oxford
United Kingdom

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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