Cooperation and Economic Self-Reliance in Commercial Arrangements

Chapter 2 identifies a significant principle, immanent in tort law, vindicating the value in cooperative human arrangements. ‘Tort’s cooperation principle’ illuminates the necessity, at the duty of care stage in negligence claims, of analysing the prior dealings of the relevant parties. In claims between participants to a commercial arrangement, tort’s support for cooperation manifests in a preference for protecting the security of the coming together of the parties by refusing to recognise entitlements that would circumvent the arrangement. The common judicial assessment that society and the market expect commercial parties to be economically self-reliant exposes the importance of interrogating the reasonableness of commercial claimants’ reliance, for their own economic protection, on fellow participants in a commercial arrangement. This perspective reveals a long-standing doctrinal discontinuity and calls into question the reasoning used to support the Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. line of authority in commercial disputes.

Taking the Judges Seriously v. Grand Theories

Chapter 1 describes the approach of reflexive tort scholarship and how it depends on a clear understanding of the environment of judicial decision-making. Part of that environment is the conception that judicial ‘lawmaking’ is ‘retrospective’, by which is usually meant that it is imposed retroactively. Yet retroactivity is in sharp tension with the fundamental principle that situations should be judged according to the law as it was at that time. To resolve this tension, the text offers a conception of the common law as ‘living’, that it evolves in line with changes in society. Later, litigation invites the ultimate court to articulate this evolution and how the law stood at the time that the parties interacted. The descriptive claims of Grand Theories are contrasted with reflexive tort scholarship, which accommodates key aspects of judicial decision-making, such as the heterogeneity of judicial reasons, in ways that those descriptive claims cannot.

Conceptual Interplay between Elements of the Tort of Negligence

Chapter 3 examines how elements of the tort of negligence interact in critical conceptual ways and suggests that re-conceptualisation of aspects of those elements offers a more transparent and coherent framework. One argument is that a but-for concept of factual causation is inadequate and narrower than the concept evident in case law, one which can be identified by an ‘extended but-for test’. Another is that use of causal language at the analytical stage, which addresses the appropriate scope of responsibility for consequences of a specific breach (i.e. remoteness of damage), creates an obfuscating amalgam of the factual and normative. Similarly, by drawing a clear distinction between the forward-looking notion of the ‘scope of the duty’ and the backward-looking notion of the scope of responsibility for consequences the text argues that the principle that can coherently be extracted from the SAAMCO case is considerably narrower than the one being presented to courts.