Articulating the living common law

The impact of Professor Jane Stapleton’s work on tort law scholarship is celebrated in a volume comprising contributions by academics from Australia, the UK and the US.

General themes that arise in Stapleton’s work – including the academic influence on judges – are considered in the first part of the book. Aspects of liability in the tort of negligence, including duty of care, are discussed in the second part. The third part is dedicated to causation, with writers reflecting on the impact of Stapleton’s work. The final section covers a variety of different aspects of tort law and compensation systems.

The editors hope that their book ‘will provide future students, scholars and practitioners of tort law, who have not had the honour of meeting Jane, with a sense of the magnitude of her contribution’.

In 17 essays, we are guided through Stapleton’s approach to the key principles of tort, including damage, which is referred to by Stapleton as ‘the gist of negligence’. ‘Time to Cut Ties’ is a fascinating analysis of the development in UK courts of claims for psychological injury without any physical impact, or ‘nervous shock’ cases. The authors challenge the requirement for a ‘sudden shocking event’. For example, negligent medical treatment led to the death of a child. But death was not immediate and the child’s father was at their bedside in hospital for one week. The father’s claim failed on the basis that, due to the time between admission to hospital and his son’s death, he did not suffer a ‘shock’ (Sion case). In another case (Paul), a hospital failed to identify a heart condition in a male patient. Fourteen months later, he died suddenly of a heart attack in front of his two daughters who suffered PTSD as a result. The daughters’ claim failed on the basis that, while they were certainly shocked, the event that caused the shock was long after the negligence.

But which event must be the one that shocks – the negligent treatment itself or the death that occurs as a result? Why should it be the case that the mere fact that a defendant’s negligence takes some time to cause its harm, means that they should entirely escape the consequences? The authors suggest that a proper causal inquiry can address concerns about whether an illness that derives from long, slow exposure or later events was actually caused by the initial negligence.

Another essay, ‘Continuing the Product Liability Illusion’, considers Stapleton’s commentary on the EU Council Directive on Liability for Defective Products and its implementation in the UK with the Consumer Protection Act 1987 (CPA). This is, in essence, a contrast between, on the one hand, strict liability on the manufacturer and, on the other, liability that arises only if the manufacturer knew or ought to have known of the alleged risk or defect. The argument for the latter is that this defence helps promote innovation and the development of new products. The authors posit that recent decisions, including artificial hip implant cases (De Puy), appear to indicate a retreat from a consumer-focused approach. Despite claims that the CPA set up a strict liability regime, the wording of the legislation, the defences contained in it, and its interpretation in common law have resulted in an effective return to fault-based analysis. This was predicted by Stapleton, who had argued that strict liability was illusory.

This fascinating book achieves its goal of honouring Stapleton. In the foreword, Lord Reed, president of the UK Supreme Court, pays a personal tribute: ‘The judiciary and common law owe Professor Stapleton a considerable debt. Her kind of scholarship is greatly valued by the judiciary and, as she has put it, can offer “scholars the thrilling prospect of collaborating on the real-world project of identifying and articulating the living common law”.’

Kevin McVeigh is a partner at Elliott Duffy Garrett Solicitors, Belfast