Defences in tort and crime
In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what...
| 主要作者: | |
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| 格式: | Journal article |
| 出版: |
Cambridge University Press
2014
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| _version_ | 1826289402040549376 |
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| author | Goudkamp, J |
| author_facet | Goudkamp, J |
| author_sort | Goudkamp, J |
| collection | OXFORD |
| description | In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision inFroom v Butcher, at least as it has been understood in subsequent cases, was decidedper incuriam. Froomsits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules. |
| first_indexed | 2024-03-07T02:28:20Z |
| format | Journal article |
| id | oxford-uuid:a662324e-d959-4acb-9c08-c590e2f9cbbc |
| institution | University of Oxford |
| last_indexed | 2024-03-07T02:28:20Z |
| publishDate | 2014 |
| publisher | Cambridge University Press |
| record_format | dspace |
| spelling | oxford-uuid:a662324e-d959-4acb-9c08-c590e2f9cbbc2022-03-27T02:46:58ZDefences in tort and crimeJournal articlehttp://purl.org/coar/resource_type/c_dcae04bcuuid:a662324e-d959-4acb-9c08-c590e2f9cbbcSymplectic Elements at OxfordCambridge University Press2014Goudkamp, JIn most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision inFroom v Butcher, at least as it has been understood in subsequent cases, was decidedper incuriam. Froomsits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules. |
| spellingShingle | Goudkamp, J Defences in tort and crime |
| title | Defences in tort and crime |
| title_full | Defences in tort and crime |
| title_fullStr | Defences in tort and crime |
| title_full_unstemmed | Defences in tort and crime |
| title_short | Defences in tort and crime |
| title_sort | defences in tort and crime |
| work_keys_str_mv | AT goudkampj defencesintortandcrime |