In the field of private law, much work has been done to describe, explain, and rationalise different causes of action. Whilst some excellent work has also been done as regards the analysis of specific defences, notably change of position and passing on as defences to claims in unjust enrichment, surprisingly little work has been done to analyse defences in private law more generally. This is especially surprising since so much work has been done as regards the theory of defences in the criminal law, and so much has been written about the theory of the law of torts generally, but without any rigorous analysis of defences. James Goudkamp's book can rightly claim to be the first serious attempt to examine tort law defences systematically and it is a very important addition to the private law canon.
The book adopts an explicitly taxonomical approach in seeking to classify tort defences and, in doing so, provides an explanation of their function and operation. It does not purport to describe the details of the law of defences or to identify their rationale, but seeks to identify a coherent basis for the categorisation of established defences. Whilst taxonomical ordering of legal rules might sometimes simply involve the imposition of order for order's sake, Goudkamp is engaged with a taxonomical project of the best kind. It is case – and occasionally statute – led and, by imposing categories on what is undoubtedly a chaotic body of law, admirably succeeds in establishing some semblance of coherence.
In identifying his taxonomy, Goudkamp makes two radical assertions. The first arises from his definition of what is a tort defence. He draws a vital distinction between denials and defences. The former involves an assertion that an element of the cause of action has not been established, whereas a defence involves a release from liability even though all the elements of the tort are present. A consequence of both this dichotomy and his restrictive definition of defences is that a number of rules which are often called “defences” are not properly characterised by Goudkamp in that way. So, for example, involuntary conduct, inevitable accident, mistake, and consent can be characterised as denials, since they prevent the tort claim from being established. Further, Goudkamp does not consider the apportionment rules following contributory negligence to be defences because they relate to the determination of the remedy rather than the release of tortious liability. It follows that the ambit of tort defences is not as wide as might be anticipated.
Whilst the distinction between denials and defences is undoubtedly significant for expository purposes, it is unclear whether it has any greater importance under Goudkamp's scheme. It might be thought, for example, that the denials/defences dichotomy is of procedural significance, since it affects rules on pleading and the burden of proof. But Goudkamp concludes that the determination of whether a rule is a denial or a defence does not impact on the allocation of the burden of proof, or presumably pleading. But this is because he does not wish to define a “defence” simply as encompassing a rule where the defendant bears the burden of proof, since that would encompass many rules of civil procedure. That is appropriate, but it does not follow that the defendant does not bear the burden of proof if a rule is otherwise categorised as a defence. The rules on pleading and burden of proof should be treated as a consequence of defining an element as denial or defence rather than constituting the definition.
Goudkamp's second radical assertion derives from the core of his taxonomy. Having distinguished between denials and defences, he adopts a bipartite classification of tort defences, distinguishing between justifications and public policy defences. It is his analysis of justifications which is particularly radical. Whilst he recognises that the prevalent view in criminal law theory is that a justified act is a lawful act, whereas an excused act remains unlawful but with liability reduced or eliminated, Goudkamp does not consider that this is compatible with his prior distinction between denial and defence. For, he asserts, if a justification renders the defendant's act lawful, then it should constitute a denial of the tort. In his view, where the defendant relies on a defence, he is not denying that he has committed a wrong, but seeks to be relieved of liability by providing an explanation for that admitted wrongdoing and, according to Goudkamp's scheme, a justificatory defence will only be engaged where the defendant acted reasonably. But surely it is a better explanation of many tort defences that they are only engaged when the claimant has established the elements of the claim, such that the defendant's actions can be considered to be prima facie unlawful. The burden should then shift to the defendant to establish that the conduct was lawful, which will indeed turn on the reasonableness of that conduct. Such analysis is equally consistent with the case law and with orthodox criminal law theory.
Goudkamp's analysis of justificatory defences has two important features. First, he distinguishes between private and public justifications. Private justifications include defences of self and property, recapture of chattels. Public justifications include public necessity and defence of another person. Whilst such a distinction may be of categorical use, it does not obviously provide any expositive benefits, since the function and operation of the justificatory defence do not appear to depend on whether it is public or private. Secondly, excuses have no distinct role to play in Goudkamp's scheme, since what might otherwise be classified as “excusatory” defences will presumably require reasonable conduct to be engaged so Goudkamp treats them as justifications.
Public policy defences in Goudkamp's taxonomy are distinct from justifications because they are not dependent on the rational defensibility of the defendant's conduct and exist for reasons external to tort law. Such defences include illegality, limitation periods, and various immunities, although some of these might preferably be analysed as denials. Further, the boundary between justificatory and public policy defences might not always be as clear as Goudkamp suggests. For example, he characterises the defence of public necessity as a justification because the defendant's conduct must be reasonable for the defence to be engaged, but the rationale of the defence historically depends on public policy objectives.
Although Goudkamp considers that these two categories of justification and public policy explain the state of the law on tort defences, he identifies another group of putative defences involving the denial of responsibility. He recognises that, although orthodox tort law does not recognise defences of infancy or insanity, a strong case can be made for the recognition of such defences to deny liability in tort law. His arguments are convincing, although it is unclear how he would define infancy or mental disorder for these purposes. Further, they are perhaps better analysed as denials rather than defences, such that the defendant should not be considered to have committed a tort if he was too young or suffered from a recognised mental condition.
Goudkamp's analysis is consistently thought-provoking, although there are two particular weaknesses in his methodology. First, he adopts a welcome cosmopolitan approach in his identification of relevant legal materials, with particular reference to English, Australian, and American authorities. This enables him to engage with a wider variety of defences and approaches, but he implies that there is a commonality of approach regardless of the jurisdiction investigated. But closer analysis of his text and of the authorities reveals that this commonality is often more apparent than real. This is especially true of the different approaches to illegality, which may operate as a denial or a defence in different jurisdictions. It is also reflected in Goudkamp's treatment of private necessity, which he does not consider to be a defence relying on the American case of Vincent v Lake Erie Transportation Co. (1910) 109 Minn 456, whereas it is undoubtedly treated as a defence in England – something which is acknowledged in passing in a footnote.
Secondly, Goudkamp draws a great deal from criminal theory literature, which he analyses in a very sophisticated way. He does not fall into the trap of concluding that, where criminal theory leads, tort must follow, but his analysis of the relevance of criminal theory could have been more nuanced with reference to the different goals of criminal and tort law. Whilst Goudkamp finds implausible the assertion that compensation is a “goal” of tort law, it is undoubtedly the case that the response of the criminal law is penal whereas the response of tort law is primarily, but certainly not exclusively, compensatory. This has an effect on determining the function of defences in crime and tort. Where a defendant is charged with a crime, the role of the defence, whether justificatory or excusatory, relates to the defendant's personal blameworthiness. But, where the defendant is sued in tort, a very different question of responsibility for the harm or interference with a right arises, where the defendant's personal responsibility is relevant but not decisive, since there are other interests to consider particularly concerning loss suffered by the claimant. That is why, for example, self-defence is relevant to both crime and tort, but in tort the defence will only be available if the defendant acted reasonably on the facts as the defendant reasonably believed them to be, whereas in crime an unreasonable belief is relevant. Similarly, a defence of duress is available to negate liability for most crimes, where it appears not to be available in tort, which can be explained by reference to different approaches to personal responsibility in the two systems. Whilst it is important to have regard to what happens on the other side of the tort/crime divide, this must always be conducted carefully with regard to the aims and responses of the two systems.
It is clear from this book that much more work needs to be done as regards the detailed exposition of the law of defences and to provide theoretical explanations for the operation of each defence, but it is not Goudkamp's aim to do this. What he has done, with impressive scholarship and clarity, is to provide the framework for future exposition and analysis of tort defences, which will undoubtedly prove to be equally significant to the analysis of other private law defences in the fields of contract, unjust enrichment, and equity. This book will provide the framework for future analysis of all private law defences.
