Dear Eugene et al,

One interesting example from New Zealand is the High Court decision in
Hosking v Runting [2003] 2 NZLR 385, where the Court refused to recognise a
tort of invasion of privacy. One of the core reasons for not developing the
law was that any gaps in the law of privacy ought to be filled by the
legislature. On appeal the Court of Appeal took a different view and, by a
majority, recognised a tort of invasion of privacy. Some of the judges
discussed the argument that any extension of the law should be left to the
legislature ([2005] 1 NZLR 1).

A recent example that springs to mind in the UK context is Lord Phillips'
speech in Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC
225 at [102], in the context of whether there was a common law duty on the
police to protect an individual who faces a risk of physical injury from
the criminal acts of a third party.

Yours sincerely,

Jason Varuhas


Junior Research Fellow
Christ's College
Cambridge CB2 3BU






On May 18 2011, James Lee wrote:

>Dear Colleagues,
>
> Another example which immediately comes to mind is in the English
> authorities on psychiatric harm. In White v Chief Constable of South
> Yorkshire Police [1999] 2 AC 455 a majority of the House of Lords
> declined to allow negligence claims by police officers traumatised by
> their attendance at the Hillsborough stadium disaster. Lord Steyn for the
> majority argued (at 500) that
>
> 'the only sensible general strategy for the courts is to say thus far and
> no further. The only prudent course is to treat the pragmatic categories
> as reflected in authoritative decisions such as Alcock and Page v Smith
> as settled for the time being but by and large to leave any expansion or
> development in this corner of the law to Parliament. In reality there are
> no refined analytical tools which will enable the courts to draw lines by
> way of compromise solution in a way which is coherent and morally
> defensible. It must be left to Parliament to undertake the task of
> radical law reform.'
>
> The case is also interesting for the majority's express invocation of
> 'distributive justice' as a reason for denying the claims.
>
> Their Lordships noted that the Law Commission had produced a report on
> liability for psychiatric harm (in the wake of the Court of Appeal's
> decision in White, which had provoked controversy). However, despite the
> express appeal to Parliament, there has still been no legislative action
> on the point, with the Ministry of Justice belatedly concluding (nearly
> ten years later) that: 'The arguments in this complex and sensitive area
> are finely balanced. On balance the Government continues to take the view
> that it is preferable for the courts to have the flexibility to continue
> to develop the law rather than attempt to impose a statutory solution.'
> (The Law of Damages: Response to consultation' (CP(R) 9/07) 51).
>
>Best wishes,
>
>James
>
>
>--
>James Lee
>Lecturer and Director of Careers
>Academic Fellow of the Inner Temple
>Birmingham Law School
>University of Birmingham
>Edgbaston
>Birmingham
>B15 2TT, United Kingdom
>
>Tel: +44 (0)121 414 3629
>E-mail: j.s.f.lee@bham.ac.uk
>
> From: Nick Ferrett [mailto:nick.ferrett@chambers33.com.au] Sent: 18 May
> 2011 05:15 To: Andrew.Dickinson@CliffordChance.com;
> Neil.Foster@newcastle.edu.au; VOLOKH@law.ucla.edu Cc: obligations@uwo.ca
> Subject: Re: Judges in tort cases saying that a proposed extension of
> tort liability should be left to the legislature
>
> The Dyson Heydon article (often called "the job application") is
> available here:
>
>http://www.onlineopinion.com.au/view.asp?article=269
>
>
>
>Nicholas Ferrett
>Barrister
>
>Level 33, 400 George Street, Brisbane. 4000.
>
>Telephone: 07 3003 0440 | Facsimile: 07 3012 7811
>
>DX950
>
>Email: nick.ferrett@chambers33.com.au
>
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> From:
> "Andrew.Dickinson@CliffordChance.com<mailto:Andrew.Dickinson@CliffordChance.com>"
> <Andrew.Dickinson@CliffordChance.com<mailto:Andrew.Dickinson@CliffordChance.com>>
> Date: Wed, 18 May 2011 14:04:46 +1000 To:
> "Neil.Foster@newcastle.edu.au<mailto:Neil.Foster@newcastle.edu.au>"
> <Neil.Foster@newcastle.edu.au<mailto:Neil.Foster@newcastle.edu.au>>,
> "VOLOKH@law.ucla.edu<mailto:VOLOKH@law.ucla.edu>"
> <VOLOKH@law.ucla.edu<mailto:VOLOKH@law.ucla.edu>> Cc:
> "obligations@uwo.ca<mailto:obligations@uwo.ca>"
> <obligations@uwo.ca<mailto:obligations@uwo.ca>> Subject: Re: Judges in
> tort cases saying that a proposed extension of tort liability should be
> left to the legislature
>
> In a private international law context, judicial restraint on the ground
> of the desirability of legislative intervention also played a significant
> part in the reasoning of the High Court in Dow Jones v Gutnick (2002) 210
> CLR 575, applying traditional choice of law principles to Internet
> defamation, and Voth v Manildra (1990) 171 CLR 538, refusing to adopt the
> English "more appropriate forum model" for staying proceedings.
>
>Kind regards
>Andrew
>
>--------------------------
>Andrew Dickinson
>Consultant
>Clifford Chance LLP
>10 Upper Bank Street
>London E14 5JJ
>
>Direct line: +44(0)20 7006 8634
>Mobile: +44(0)7881 588871
>
> From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au] Sent: Wednesday,
> May 18, 2011 01:45 AM To: Volokh, Eugene
> <VOLOKH@law.ucla.edu<mailto:VOLOKH@law.ucla.edu>> Cc:
> obligations@uwo.ca<mailto:obligations@uwo.ca>
> <obligations@uwo.ca<mailto:obligations@uwo.ca>> Subject: Re: Judges in
> tort cases saying that a proposed extension of tort liability should be
> left to the legislature
>
> Dear Eugene et al; In Australia one case that springs to mind where
> there were a number of things said about not extending common law
> liability (also in the privacy area, like the case Benjamin mentioned,
> but only a century or so later!) was ABC v Lenah Game Meats Pty Ltd
> [2001] HCA 63; 208 CLR 199
> http://www.austlii.edu.au/au/cases/cth/HCA/2001/63.html where the High
> Court of Australia declined to create a new tort action for breach of
> privacy (though they were able to hold that the old equitable action for
> "breach of confidence" could be extended to cases involving personal
> privacy in some situations.) Sometimes the practice of judges extending
> tort liability where the legislature has chosen not to tread can be
> called "Judicial Activism". One of the current members of the High Court,
> Justice Dyson Heydon, wrote a (locally) celebrated article on this just
> before his appointment to the Court in 'Judicial Activism and the Death
> of the Rule of Law' (2003) 47 Quadrant 9. (I think versions of this paper
> are also available in more traditional law journals.) His views continue
> to be debated by local academics, of course. I notice that the current
> Chief Justice of the High Court, French CJ, has a paper on the general
> issue of "judicial activism" on the HC website at
> http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj10Nov09.pdf
> . Regards Neil
>
>On 18/05/2011, at 4:41 AM, Volokh, Eugene wrote:
>
>
> Dear colleagues: Judges in tort cases sometimes reject a proposed
> extension of tort liability on the grounds that it should be left to the
> legislature (and not just in cases where there's already a statute
> foreclosing such liability, which can indeed only be modified by the
> legislature). The judges obviously recognize that they have the power to
> create new tort law rules, and that most tort law rules were indeed
> created by judges; but in some situations, they conclude that they
> shouldn't make certain decisions, and that it is only the legislature
> that should be able to make them. Are there any good articles that
> discuss this as a general matter, both descriptively and normatively?
> Many thanks,
>
>Eugene Volokh
>UCLA School of Law
>
>Neil Foster,
>Senior Lecturer,
>Deputy Head of School & LLB Program Convenor,
>Newcastle Law School,
>Faculty of Business & Law.
>MC158, McMullin Building,
>University of Newcastle, Callaghan NSW 2308 AUSTRALIA
>ph 02 4921 7430
>fax 02 4921 6931
>http://www.newcastle.edu.au/staff/profile/neil.foster.html
>http://works.bepress.com/neil_foster/
>
>
>
>
>
>
>
>
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