Statutes and torts defences



Publication Details

Goudkamp, J. (2013). Statutes and torts defences. In T. Arvind & J. Steele (Eds.), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (pp. 31-56). Oxford: Hart Publishing.


A striking feature of the law of torts is that it is mostly judge-made. The rules that constitute it are found predominantly in the law reports rather than in the statutes books. This is especially true of the definitional elements of torts. Consider, for example, the building blocks of the action in negligence. The principles that govern the elements of that action- a duty of care, a breach of that duty, and non-remote damage caused by the breach of duty - are located almost exclusively in the common law, not in Acts of Parliament. Although we live in the 'age of statutes', they have escaped legislative intervention essentially unscathed. The same can be said of the elements of many other torts, including all of the varieties of trespass, private and public nuisance, the tort recognised in Rylands v Fletcher, and all of the economic torts.

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