Negligence and Illegality

by Sharon Erbacher

Overview

This book examines claims in negligence arising from illegal conduct of the claimant. An array of public policy and other grounds have been advanced for resolving these claims, resulting in an area that is characterised by confusing and contradictory case law. The book analyses the various explanations put forward as the basis for illegality doctrine within a framework of corrective justice theory.
Illegality law poses particular challenges for the corrective justice explanation of negligence law, as many illegality tests are based on public policy considerations external to the relationship of the parties.
The book argues that the only circumstance where illegality doctrine should be applied to deny a claim is where this is necessary to preserve the coherence of the legal system. It develops the work of Ernest Weinribian corrective justice theorists to explain how the principle of legal coherence fits within the framework of corrective justice theory, and why legal coherence is the only valid conceptual basis for a doctrine of illegality. It also contains a detailed study on the scope of the coherence rationale and the principles that will determine its application.

Product Details

ISBN-13:	9781509929788
Publisher:	Bloomsbury Academic
Publication date:	06/30/2019
Series:	Hart Studies in Private Law
Pages:	272
Product dimensions:	6.14(w) x 9.21(h) x 0.57(d)

About the Author

Sharon Erbacher is a Senior Lecturer at the Law School at Deakin University, Australia.

Table of Contents

Preface v

Table of Cases xiii

Table of Legislation xix

1 Introduction 1

I The Disordered State of Illegality Doctrine 1

II Taxonomy of Illegality Claims in Negligence Law 2

A Categories of Claims Arising from an Illegality 2

B Review of the Current Law 4

i The Physical Injury Cases 4

ii Sanction-shifting and Related Claims 7

iii Illegal Profits and Earnings 7

C Academic Commentary 8

III Book Purpose 8

IV Scope and Terminology 12

V Structure 14

VI Focus on the Common Law 15

2 Theoretical Perspectives 17

I Introduction 17

II Debates about the Proper Basis of Tort Law 17

III Main Features of Corrective Justice Theory 19

IV Reasons for Adopting a Corrective Justice Framework 21

V Key Implications of Adopting a Corrective Justice Framework 24

VI Public Policy and Corrective Justice 28

A Terminology 28

B Extra-relational Public Policy 29

C Relational 'Policy' of Legal Coherence 30

VII Conclusion 31

3 The Tort-Crime Interface 32

I Introduction 32

II Consistency between Tort Law and Criminal Law an Important Value of the Legal System 33

III An Award of Compensation is not 'Profit' 36

IV Illegality Doctrine Does Not Support the Criminal Law in a Conceptually Coherent or Rational Way 39

V Conclusion 42

4 Policy and Discretion 43

I Overview 43

II Denning Public Policy 44

III Public Policy Out in the Open 45

IV Lord Sumption's Stance Against Public Policy Reasoning 48

V Evaluation of a Public Policy Approach 50

A The Destabilising Effect of Public Policy Reasoning on the Law of Illegality 51

B Incommensurability 54

VI Public Policy in Negligence Claims 57

VII Are These Objections to Public Policy Reasoning Overstated? 60

VIII Concluding Remarks on Public Policy 62

IX A Structured Discretion 62

A A Judicially Structured Discretion 64

i A Structured Discretion Introduces a Theoretical Incoherence into Negligence Law 65

ii A Structured Discretion Will Make Decisions More Difficult and Unpredictable 66

B A Statutorily Structured Discretion 68

X Conclusion 70

5 The Connection Tests 72

I Overview 72

II The Reliance Test 74

III The Inextricable Link (Sufficient Connection) Test 78

IV The Causation Test 84

A Overview of the Causation Test 84

B Development of the Causation Test in the United Kingdom 85

C The Doctrinal Incoherence of a Causation Test 90

i No Valid Test for Identifying the Claimant's Illegal Conduct as the Effective Cause of the Harm 90

ii A Causation Test is Inconsistent with 'Scope of Liability' Causation 93

D The Conceptual Incoherence of the Causation Test 98

V A Statutory Causation Test 101

A Overview of the Statutory Defences 101

B The Statutory Defences are Inconsistent with the Correlative Structure of Negligence Liability 102

VI Conclusion 104

6 Overview of the Coherence Rationale 105

I Introduction 105

II The Principle of Coherence is not Dependent on Corrective Justice for its Validity 107

III Concerns about Legal Coherence are Relational Concerns 108

IV Categories of Claims Where a Legal Incoherence Might Arise 110

A Allowing Recovery would Enable the Claimant to Escape the Effects of the Law Proscribing the Conduct 111

B Allowing Recovery would Enable the Claimant to Profit from Wrongdoing 111

i Exemplary Damages 112

ii Illegal Profits and Earnings 114

V The Limited Application of the Coherence Rationale to Personal Injury Claims 115

VI Other Misappropriations of the Coherence Rationale 117

VII Does an Exclusive Focus on Legal Coherence Result in an Unjustifiably Narrow Doctrine of Illegality? 119

VIII Conclusion 121

7 Statutory Purpose 123

I Introduction 123

II Brief Overview of Miller v Miller 125

III Implications of the Statutory Purpose Explanation 127

IV Evaluation of the Statutory Purpose Explanation: Claims for Harm Sustained in the Course of Committing an Illegal Act 128

A Discerning Statutory Purpose can be a Highly Speculative Exercise 128

B Appeals to Statutory Purpose can Involve Unarticulated Value and Policy Judgements 134

C Focus on Statutory Purpose Distracts the Court from a Relational Analysis of Duty of Care 137

V Evaluation of the Statutory Purpose Explanation: Sanction-shifting Claims and Claims for Illegal Profits and Earnings 138

VI Statutory Purpose Explanation Is Arguably Better Adapted to Other Areas of Private Law Illegality 140

VII Conclusion i42

8 No Loss or Damage: Sanction-shifting and Related Claims 144

I Introduction 144

II Background 145

III The Consistency Rule 146

A Overview of the Consistency Rule 146

B Is there a Convincing Rationale for a Consistency Rule Tied to the Claimant's Culpability? 149

IV A Corrective Justice Perspective 152

A Introduction 152

B Overview of the No Loss or Damage Explanation 153

i Proposition One: No Violation of a Right (No Damage) 153

ii Proposition Two: No Legal Value (No Loss) 155

C The No Loss or Damage Explanation is Compatible with a Loss-based Model of Negligence Law 157

V Loss or Damage that is Irrecoverable 160

A Pecuniary Penalties 160

B Non-pecuniary Losses Resulting from Detention 162

VI Loss or Damage that is Recoverable 165

A Loss of Earning Capacity 166

B Other Non-pecuniary Damages 169

C Claims to be Indemnified for a Third Party Civil Liability 170

VII Culpability of the Claimant is Irrelevant 173

VIII Corporate Responsibility 176

IX Conclusion 180

9 No Loss or Damage: Illegal Profits and Earnings 181

I Introduction 181

II The No Legal Value Proposition 182

III Relevance of the Proceeds of Crime Legislation 184

IV Statement of the No Legal Value Proposition 185

V Application of the No Legal Value Proposition to the Case Law 186

A Illegal Earnings 186

B Illegal Profits 188

VI Application of the Statutory Purpose Explanation 191

VII Onus of Proof 192

VIII Conclusion 193

10 A Relational Explanation: Joint Illegal Enterprise Cases 194

I Introduction 194

II The Illegal Relationship Between the Parties will not of Itself Negate Duty of Care 196

III Background: The Standard of Care Approach 197

A Development of the Standard of Care Approach 197

B The Standard of Care Approach is not an Appropriate Explanation of the Joint Illegality Cases 199

IV The Relationship Between the Parties Is such that the Claimant Cannot Expect the Defendant to Act Carefully (the Joyce Principle) 201

V Support for the Joyce Principle in the United Kingdom 204

VI The Joyce Principle should be Adopted as the Basis for Resolving Joint Illegality Cases 205

VII Is an 'AH or Nothing' Approach Ever Appropriate? 207

VIII Corrective Justice Requires an Examination into the Standard of Care that could Reasonably be Expected 208

IX The Requirements for the Establishment of the Joyce Principle 212

X Application of the Joyce Principle to Joint Illegal Enterprise Cases 213

A Nature, Purpose and Scope of the Joint Enterprise 213

B Time at Which the Claimant's Knowledge of the Risks Is to be Assessed 215

XI Joint Illegal Relations that Displace the Normal Standard of Care 216

A The Joyriding Cases 216

B Illegal Road-racing 220

C Fleeing the Scene of a Crime 221

XII Does the Joyce Principle Give an Unjustified Advantage to a Criminal Accomplice? 223

XIII Interaction with Defences 224

XIV Conclusion 226

11 Conclusion 227

Index 233