Western Law

TLRG at Obligations VIII: Revolutions in Private Law

Professors Jason Neyers and Erika ChamberlainOn July 19-22, Professors Erika Chamberlain and Jason Neyers presented papers at the Eight Biennial Conference on the Law of Obligations (Obligations VIII) held at Downing College, Cambridge. The theme of the conference was Revolutions in Private Law. The obligations conferences bring together scholars, judges, and practitioners from throughout the common law world to discuss current issues in contract law, the law of torts, equity, and unjust enrichment. The series originated at the University of Melbourne in 2002 and has become a significant international forum for discussion between scholars and practitioners in the field.

Professor Chamberlain spoke to a paper entitled, “Home Office v Dorset Yacht: A Revolution in Duty Methodology.” She argued that, while Donoghue v Stevenson is often heralded as the most influential decision on the twentieth century duty of care analysis, the real revolution in duty methodology did not come until Dorset Yacht, nearly forty years later. It was in Dorset Yacht that the House of Lords expressly adopted a duty methodology based on general principles, embraced the law-making function of common law judges, and acknowledged the role of policy in duty decisions. Further, Dorset Yacht made use of the welfare rhetoric of the post-war period to position the tort of negligence as a vehicle for loss-spreading, making compensation the primary goal of the tort. 

Professor Neyers spoke about the “Coming Revolution in the Tort of Public Nuisance.” He argued that the current understanding of the tort, according to which the tort is wholly parasitic on the common law crime of the same name, is flawed since it violates basic doctrines related to the actionability of crimes and entails the disappearance of the tort if the crime were abolished (as has been suggested by the English Law Reform Commission). According to Professor Neyers, the tort is better understood as protecting privately actionable rights to pass and repass on public highways and to fish in public waters, and that it is plausible that a sophisticated legal system would recognise such rights.

Prior to attending Obligations VIII, Professor Neyers was also an invited discussant at the Regulating Risk Through Private Law Workshop which took place at Trinity College, Cambridge on July 17-19.  The Workshop was hosted by Matthew Dyson and involved reports from national teams from England, Chile, the Netherlands, Spain, France, Sweden, Italy, South Africa and Brazil. These reports looked at the general state of the law in their respective jurisdictions and also addressed specific risk-based doctrines that are prominent in the tort, contract or unjustified enrichment rules of that jurisdiction.