Defective Premises—Shall the Ratepayer Foot the Bill? (original) (raw)
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The Cambridge Law Journal, 2008
Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases:
Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims
Depaul Law Review, 2013
Processing, 9 LAW & Soc'y REV. 63, 81 (1974) ("In lumping it the salience of the dispute is reduced not so much by limiting the contacts between the disputants, but by ignoring the dispute, by declining to take any or much action in response to the controversy."). 5. DEBORAH R. HENSLER ET AL., RAND, COMPENSATION FOR ACCIDENTAL INJURIES IN THE
Failure of consideration: Roxborough v Rothmans
Modern Law Review, 2003
The judgments of the majority were along the same lines, and decisions on which the majority judgments were broadly consistent will be referred to as decisions of the court. tobacco licence fee 'funded [Rothmans] to meet a cost of continuing in business for ... future licence periods, to the mutual benefit of both wholesaler and retailer'. 3 It had previously been held that the licensing scheme was invalid as a disguised excise duty, which the New South Wales Parliament had no power to impose under the Australian Federal Constitution. 4 The recovery of money paid as licence fees to the government of New South Wales was governed by a separate statute and was not in issue in Roxborough. The issue at stake was whether, since it was now known that Rothmans did not have to pay the licence fee, Roxborough could recover the part of the price paid that was attributable to it. Otherwise it would seem that Rothmans would be left with an unjustified surplus from the contract. References below to the recovery of the payment refer to the recovery of this part of the total payment. The court denied that there was any contractual claim to recover the payment. Such a claim, it was thought, would have to be based on an implied term in the contract to the effect that the sum paid in respect of the tobacco licence fee would be repayable if Rothmans was not liable to pay a licence fee. According to the court, it would be 'artificial and unconvincing' to find such a term, because the parties 'made no agreement, express or implied, about what was to happen if the tax was held to be invalid'. 5 The contingency that arose was not provided for in the contract. The claim based on failure of consideration as a failure of condition It was held, however, that there was a non-contractual claim to recover the payment. This was a form of the claim traditionally described as a claim for money had and received, and nowadays as a restitutionary claim, the ground for which in the present circumstances was 'failure of consideration'. This was understood to mean that the payment was made on a basis or a condition or 2 Save for a nominal sum.