This thesis is an attempt to use synthesis and analysis in respect of certain models of tort obligation to show that the common law has evolved and been shaped by recurring cycles. It was not possible to analyse the entirety of the wide sweep of tort obligation, so the models of trespass, trespass on the case, deceit and special relationship negligence were synthesised and then historically compared. From these models distinct recurring cycles of the common law became apparent, which alternated between expansionary and conservative stages. At one time the common law seeks a vehicle for new flexible remedies and obligations, and at another, it seeks the certainty of fixed rules. The cycle is incessant as for every swing in one direction, at a certain point on the pendulum, there will be a reaction. This thesis explores the pathology of those cycles through such selected models, including the symptoms exhibited by the initial ad hoc characteristics of the birth of a remedy or obligation, the maturing phase of a remedy or obligation created by the emergence of categories of liability, the abstraction from such categories of a general principle, and either the over-extension of such general principle, or the narrowing of such general principle leading to the obligation's ultimate demise as a flexible vehicle of liability. In the event of the death of an obligation or remedy, as a flexible vehicle of liability, the common law will seek to find or create another avenue of flexible remedy. The thesis does not seek to investigate the reasons or causes of such cycles, but is content to examine the symptoms exhibited by the various phases of such cycles. The initial two chapters summarise the general theory of such cyclic perspective and briefly outline the template of such cycles created by the early origins of the common law. The cycles of 'trespass' and 'deceit' show the rise and fall of those respective obligations from flexible remedies to narrow moribund obligations. The concepts upon which they were based of contra pacem and honesty were to prove excessively narrow and restrictive to survive the inevitable attrition caused through the natural accumulation of rules. A study of the cycle of these two obligations is rewarding as they both show a complete lifespan of an obligation through the various phases of a cycle up to the point of its death as an instrument of flexibility. The protean action on the case and the modern pragmatic case-by-case negligence formula, based on the open-ended elements of ‘foresight', 'proximity' and 'just and reasonableness', illustrate the problems caused by a remedy or obligation whose conceptualisation is vague and uncertain. The common law itself until 1875, apart from equity, had the ability through the action on the case to provide the common law with flexibility when needed. The closest that the common law in modern times has come to emulating the action on the case has been the remedial use of the negligence mechanism. While the action on the case did not survive the procedural reforms of the 19th century, it had developed general rules that limited the scope of such open-ended action. These general over-arching rules are important to a study of modern negligence liability. This thesis will endeavour to show that the modern open-ended negligence formula should be limited by comparable general rules to resist the inevitable pressure upon it to define its fault component or duty mechanism too narrowly. Synthesis by use of the tool of comparative legal history shows the constant tension in the common law between the quest for certainty through rules, on the one hand, and the ability to administer individual justice, despite the presence of a general rule, on the other. A comparison of the life cycles of the models selected shows a certain symmetry concerning the reasons and justifications advanced in constructing liability in either an expansionary or conservative phase of the common law. A cyclic perspective of the common law treats it as a dynamic constantly moving instrument that reflects the policy moods of contemporary society. Such a view of the law is not one-dimensional and may provide answers as to the past and present evolution of the common law and may give clues as to its future direction. The law is stated as at the 1st day of April 1997.
| Identifer | oai:union.ndltd.org:ADTP/278497 |
| Date | January 1997 |
| Creators | Cadenhead, John. |
| Publisher | ResearchSpace@Auckland |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated., http://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm, Copyright: The author |
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