Fictions in Tort

James Lee*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Abstract

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure (beginning with Fairchild v Glenhaven Funeral Services and considered most recently in The ‘Trigger’ Litigation). These cases have revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning.

Original languageEnglish
Title of host publicationLaw and Philosophy Library
PublisherSpringer Science and Business Media B.V.
Pages255-274
Number of pages20
DOIs
Publication statusPublished - 2015

Publication series

NameLaw and Philosophy Library
Volume110
ISSN (Print)1572-4395
ISSN (Electronic)2215-0315

Keywords

  • Counterfactual Reasoning
  • Damage Point
  • Home Department
  • Supreme Court Decision
  • Supreme Court Justice

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