Anomalies in Tort Law: A Cause for Concern?
| Published date | 01 July 2023 |
| Author | John Murphy |
| Date | 01 July 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12777 |
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Modern Law Review
DOI:10.1111/1468-2230.12777
Anomalies in Tort Law: A Cause for Concern?
John Murphy∗
In case law, and in the associated academic literature, numerous judges and jur ists have labelled
parts of tort law ‘anomalies’. This description – with its pejorative overtones – seemingly high-
lights a cause for concern about the state of the law.Yet closer analysis suggests otherwise. First,
commentators mean dierent things when they speak of anomalies;only some of which provide
genuine reasons for unease. Secondly, all but two of the aspects of tort law considered in this
article that have been described as anomalous turn out to be no such thing. Finally, even those
two remaining parts of tort law that have been labelled anomalies can be defended because (1)
they have a great deal going for them in practical terms, and (2) the internal coherence of tort
law (which they are thought to undermine) is not the unqualied good it is widely supposed
to be.
INTRODUCTION
In an important study of the origins and subsequent development of the En-
glish common law of obligations, David Ibbetson pithily observed that ‘[t]he
common law has many virtues, [but] tidiness is not among them’.1And even
if Ernest Weinrib is right to think that, as private law develops, it ‘strives to
avoid contradiction, to smooth out inconsistencies’,2there is nothing incor-
rect in Robert Stevens’ observation that it still ‘cannot be claimed that the
common law, in any jurisdiction is in a state of Panglossian perfection’.3The
important point implicit in what all three scholars say here is the fact that there
exist within the common law various decisions, rules and doctrines that in one
way or another stand out as apparently ill-tting interlopers. Ibbetson adopts
the language of untidiness;Weinrib speaks of contradictions and inconsistencies;
Stevens invokes Voltaire and the notion of an absence of Panglossian perfection.
But in each case it boils down to much the same thing: the apparent presence
of anomalies.
As we shall see,there is no shortage of jurists and judges who have been much
less periphrastic, and in plain speech dubbed parts of tort law ‘anomalies’. And
as we shall see,too, their invocation of this label – with its obviously pejorative
∗Professor of Law, Hong Kong University. Thanks are due to Peter Cane, James Goudkamp, Eleni
Katsampouka and Craig Purshouse for comments on earlier drafts.I am also g rateful to the anonymous
referees for their helpful remarks.This ar ticle is dedicated to HGWHA.
1 David J. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: OUP,1999) 294.
2 Ernest J. Weinrib,The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) 12.
For doubts about whether judges are committed to making the law increasingly coherent,see
John Murphy, ‘Contemporary Tort Theory and Tort Law’s Evolution’(2019) 32 CJLJ 413.
3 Robert Stevens,To r t s a n d Ri g h t s (Oxford: OUP,2007) 348.
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited. (2023)86(4) MLR 872–899
John Murphy
overtones – seems at rst glance to be justied in relation to the various bits of
the law to which they apply it. However, just a little reection is repaid with
doubts about the anomalous status of the cases, rules and doctrines that they
highlight. The most immediate doubt arises from the fact that the common
law is open to a process of continuous renement. This, I think, makes it rather
puzzling how a particular body of rules, such as the law of tor ts, could ever
reach the stage where it playedhost to a large number of anomalies.4A reasonable
supposition might be that the courts would typically iron out such anomalies as
and when they came to light given the well-established facility for the common
law to change in this way.5
When Stephen Sugarman described tort as ‘the queen of the common law
subjects’,6his aim was to convey the fact that, overwhelmingly, tort law com-
prises a body of judge-made rules. And it is precisely because it is preponder-
antly made up of judge-made rules that the errors of the past can so readily be
corrected without the need for legislation.7The rst real doubt, then, is this:
‘How likely is it that tort law really does contain a large number of genuine
anomalies given that the courts ordinarily have both the power and the op-
portunities to eliminate them?8If the answer is, as I suspect, ‘Not very likely’,
then one cannot but wonder whether it was right to call the relevant bits of
law anomalies in the rst place.
Even further reection causes puzzlement to give way to scepticism. Two
matters in particular cause further doubts to surface. The rst concerns the
notion that various characteristic features of tort law – features with which a
putative anomaly is said to clash – genuinely possess the kind of normative sig-
nicance that would be required in order to render the aber rant bit of law an
anomaly. To explain: let us suppose that a stand-out feature of tort law is char-
acteristic X.If characteristic X possesses genuine normative signicance, it would
be fair to say of it that it comprises a structural or juridical imperative within
4 Note the limitation of the claim here: a law of torts with few or no anomalies should not be
equated with a law of torts in which all causes of action bear a strong family resemblance.
5 It is true that judges are imperfect reasoners who can only deal with cases as they are pleaded
by the parties. And it is true,too, that judges sometimes self-censor and avoid chang ing the law
for fear of overstepping their judicial role in terms of law reform (for example ‘this is a matter
for Parliament’) But even so,it only takes one bold court to change the law when things have
clearly gone awry.Such occasional judicial swimming against an established tide is precisely what
characterised the Supreme Court decisions in both Robinson vChief Constable of West Yorkshire
[2018] UKSC 4; [2018] AC 736 (Robinson)andWillersvJoyce [2016] UKSC 44; [2018] AC 843
(on, respectively, the rejection of the embedded Caparo test for the ascr iption of a duty of care
in negligence, and the abandonment of the longstanding refusal of the cour ts to allow the tort
of malicious prosecution to be invoked by those made the victim of maliciously instituted civil
proceedings).
6 Stephen Sugarman, ‘Assumption of Risk’ (1997) 31 Val U L Rev 833, 833.
7 In fact, the point in the main text can be reinforced by reference to the fact that statutory
interventions in tort law – limited in number as they are – do not always eect change. Some
notable statutes,for example,have done little more than place upon a statutory footing established
rules of tort that were originally fashioned by the courts. The Social Action, Responsibility and
Heroism Act 2015 is probably the clearest example.This statute adds nothing at all to the pre-
existing common law on the way in which a breach of duty is to be assessed in negligence
cases.
8 Of course, it is harder to portray statutory rules as anomalies given that they have as their source
an elected legislature.
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited.
(2023) 86(4) MLR 872–899 873
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