Statutes and Tort Defences
James Goudkamp, ‘Statutes and Tort Defences’ in Jenny Steele and TT Arvind (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Oxford, Hart Publishing, 2013) ch 3 (pp.31–57).
14 Pages Posted: 23 Mar 2016
Date Written: 2013
When the legislature intrudes upon tort law, it tends to do so by way of changing the law governing defences. It has generally left that part of tort law that is concerned to define causes of action untouched. This chapter considers possible explanations for this striking focus. It then proceeds to categorise a range of different ways in which Parliament has legislated with respect to tort defences. Finally, the chapter explores several challenges posed by the legislative concentration on defences. These challenges include the risk that legislative defences will be overlooked in the sea of statutes, the role for judicial development of common law defences, the appropriateness of applying traditional principles of statutory interpretation to modern statutory defences, the problem of statutory obsolescence, and the analogical development of common law defences by reference to statutory developments.
Keywords: tort, negligence, statutes, defences
JEL Classification: K13
Suggested Citation: Suggested Citation