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School of Law

Second Seminar on Private Law Theory and History: Reasoning in Tort Law

29 April 2015

Time: 3:00 - 5:00pm
Venue: Room 313, Law Building, School of Law, Queen Mary University of London, Mile End Road, London E1 4NS

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Hosted by the Centre for Law and Society in a Global Context (CLSGC). 

This second seminar on private law theory and history will explore reasoning in tort law.



Speaker: Dr James Goudkamp, University of Oxford
Title: The Legacy of Froom v Butcher
Abstract: On 19 November 1972, two cars collided. One was being driven by Mr Harold Froom and the other by Mr James Butcher. The accident was due entirely to the negligence of Mr Butcher. Mr Froom, who was not wearing a seat belt, was injured in the collision. This unremarkable set of facts yielded one of the most important decisions in the law of torts: Froom v Butcher [1976] 1 QB 287 (CA). On any measure, Froom, which was decided by the Court of Appeal (with the reasons of the Court being delivered by Lord Denning MR), has had a major impact on personal injury litigation in England and Wales, and it has been influential in other Commonwealth jurisdictions too. This paper examines the legacy of Froom on its fortieth anniversary. It proceeds as follows. First, it briefly delineates the principles that Froom established. Secondly, it explores the treatment and development of those principles in subsequent cases. There have been numerous challenges to those principles, all of which have been unsuccessful. These challenges will be discussed. A fresh challenge to Froom will also be enunciated. This challenge is that the guideline discounts for contributory negligence that it established are inconsistent with section 1 of the Law Reform (Contributory Negligence) Act 1945. If this logic is persuasive, Froom, in so far as it laid down guideline discounts, was decided per incuriam. Thirdly, it will be considered whether it is desirable to have guideline discounts or whether the issue of apportionment should be left to judicial discretion. It will be argued that guidelines have going for them and that serious consideration should consequently be given introducing more of them.


Speaker: Dr Noam Gur, Queen Mary University of London
Title: Should Judges Use the Floodgates Argument? Policy vs. Principle in Tort Adjudication
Abstract: Litigants and judges make frequent reference to what has become known as the floodgates argument (hereafter: ‘FA’). They do so in different areas of law, but with particular frequency in tort law. However, considering the essence of FA – and, specifically, the fact that it is exogenous to the merits of the case – a series of questions arises: is the resort to FA compatible with the idea that like cases should be treated alike? Is it compatible with the claimant’s rights? And, ultimately, should judges resort to FA, and, if so, when and subject to what (if any) constraints? These questions are at the centre of this paper. My aim is to consider them with particular reference to relevant notions from Dworkin’s theory of adjudication. The paper begins by juxtaposing FA and Dworkin’s theory of adjudication. It then considers Dworkin’s attempt to square FA with his account and rejects this attempt, finding that the two are irreconcilable. Against this background, the papers offers both theoretical observations as to Dworkin’s account and operative conclusions as to whether, and subject to what constraints, FA should feature in judicial decisions.


Speaker: Dr Dorota Leczykiewicz, European University Institute
Title: Between Facts and Law - Or How Tort Law is Made
Abstract: The paper offers a reflection on how 'Tort law' has been emerging at the interface of factual assessments (findings of fact) and conclusions about liability, or about the existence or absence of a particular condition of liability. The paper uses cases concerning causation and damage to demonstrate implications of judicial oscillation between accepting and rejecting the decisive role of the trial judge or, historically, of the jury in determining outcomes of cases. The paper is embedded in the tradition of looking at substantive areas of law as institutionally and procedurally nested and therefore strongly influenced by the discursive practices prevalent in a given legal tradition. The paper's aim is to challenge a widely held view that judicial law-making consists in introducing rules on the terrain which had previously been 'unregulated', while in fact it had been governed by discretion. The shift from jury fact-finding to judicial fact-finding in the end of 19th century meant that issues of fact became subjected to the rule of law requirements. As a result, the last century has observed a huge proliferation of legal rules concerning attribution of harm (causation) and its actionability and quantification - a trend which is less observable in civilian systems of tort liability.

4.30-4.45pm: Comments by Professor Stephen Hedley, University College Cork

4.45 - 5pm: Discussion


For directions to the venue, please refer to the map

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