Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, spread economic losses through communities, and, when they award substantial sums, act as agents of redistribution. These practices survived the 2021 adoption of the Civil Code, which reduced courts’ discretion to impose equitable liability in tort cases. This study therefore points to several potentially distinctive features of China’s embrace of legal heterodoxy in tort law. Those features include the ongoing influence of China’s socialist and pre-revolutionary legal traditions, divergence between legal provisions and legal practice, and the possibility that heterodox practices will serve bureaucratic interests and Party-state goals along with other social policy goals.

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria? Legal theorists have long debated these questions. This chapter outlines some of the leading theories. It then describes recent experimental work probing whether those theories align with lay judgments of what is reasonable. The findings indicate that reasonableness is best understood as a hybrid concept – a product of multiple inputs. Working from this perspective, the chapter raises important additional questions about reasonableness – questions that experimental jurisprudence is well suited to explore.

This chapter studies how property rights are protected and recognized in common law. In doctrine, substantive rights are not recognized expressly but indirectly. Rights are recognized via doctrines that prohibit wrongs to rights. Common law protects rights in this manner for practical reasons. Courts are better equipped to enforce duties between rights-holders and aggressors than they are to work out the full scope of rights, and when the law prohibits wrongs to rights, it leaves to people the freedom to do whatever does not violate the prohibitions. To secure rights, however, legal duties and prohibitions are structured as seems likely to secure rights. This chapter illustrates nuisance and tort suits over train sparks. Both doctrines secure to owners and occupants rights to use land. The harm, interference, and unreasonability elements of nuisance are structured to secure use rights, and sparks doctrine rules out contributory negligence to secure the same use rights. This way of thinking about rights and wrongs goes against contemporary law and economic scholarship, and this chapter contrasts law and economic studies of rights with the approach developed in this chapter.

Despite recent reforms, “balance billing” – the practice of charging patients exorbitant list prices for out-of-network or uninsured care – remains a potentially devastating feature of American healthcare. Most proposed solutions have been statutory or regulatory. But the common law offers an important intervention, consistent with private law theory, through a doctrine developed by a number of state courts and recently endorsed by the Eleventh Circuit in an adjacent area of law. Under traditional tort principles, injured plaintiffs are entitled to recover the “reasonable” costs of their medical expenses, regardless of whether they were covered by insurance. Reasoning that because, in the contemporary healthcare market, neither the amount billed by healthcare providers nor the amount paid by insurers is necessarily reasonable, these courts hold that the question of reasonable damages is for the jury, on consideration of the amount billed, the amount paid, and any other relevant evidence the parties present. A similar approach could be imported into the balance billing context, leaving to juries to determine the reasonable price of services, considering all relevant evidence. This wouldn’t solve all problems related to balancing billing, and the “reasonable price” determined by juries may still be out of reach of many patients. But unlike other judicial solutions, this proposal is thoroughly consistent with common law theory, translating basic private law principles to new contexts, rather than policy reasoning. Moreover, it may even improve the public legitimacy of the industry, ensuring that providers can never collect arbitrary post-facto amounts.

The focus of EU lawmakers with regard to cryptoassets has been largely regulatory. Reflecting the fact that private law is predominantly under the control of the Member States, and without seeking to be comprehensive, Section 13 takes a comparative view on the private law topics most relevant to cryptoassets. It covers efforts to harmonise national private laws, refers to principles issued by UNIDROIT and the European Law Institute, and considers relevant MiCA provision with private law effects in mind. Section 13.2 covers property law, including the important rules of title and transfer when multiple parties have competing claims to the same cryptoasset. Section 13.3 addresses contract law, including “smart contracts”. Section 13.4 on company law discusses decentralised autonomous organisations (DAOs) and the prospect of collaboration on the blockchain constituting a partnership as the default legal form of business organisation. Section 13.5 covers tort law, before Section 13.6 provides an overview of the difficulties often faced with enforcement of claims related to cryptoassets. Section 13.7 concludes with a perspective on the prospects of a uniform private law for cryptoassets.

This chapter discusses the account of profits, disgorgement, and other forms of gain-based relief. It will consider the difference between compensation, restitution and disgorgement. It will then consider the account of profits, and the operation of bars to relief and other limiting factors.

The primary rationales of the account of profits have been identified as deterrence and prophylaxis (that is, preventing a defendant from gaining from wrongdoing). Deterrence looks not to the dispute in question, but to the future conduct of the specific defendant (specific deterrence) and the future conduct of other potential defendants (general deterrence). By stripping the defendant of her gain (or part of her gain), the defendant (and other potential defendants) will be deterred from engaging in similar conduct in the future. It is argued that the remedies discussed in this chapter have a deterrent flavour.

Australian courts may grant ‘reasonable fee’ awards where defendants have used certain property or infringed certain rights in a tortious manner. ‘Reasonable fee’ refers to a method of calculating a monetary award for a wrong; namely, where the court awards the objectively ascertained fee that the parties would have agreed upon for permitting the defendant’s conduct. Reasonable fee awards may be made in various forms, including through an award of compensation, in an action for money had and received through ‘waiver of tort’, as ‘restitutionary damages’, or under Lord Cairns’ Act in lieu of an injunction. They are generally awarded for common law causes of action. As discussed in this chapter, the rationale for reasonable fee damages is highly contested. In previous editions of this book, we conceptualised reasonable fee awards as being gain-based and discussed them in the chapter on gain-based relief. The latest cases from the apex courts of the United Kingdom and Singapore suggest that reasonable fee awards are an instance of ‘substitutive compensation’. It remains to be seen whether Australian courts will adopt this approach.

This chapter considers self-help remedies, which involve the plaintiff making good her own rights without the intervention of the judiciary. The focus of this book is on remedies that are awarded pursuant to a judicial order. However, an exclusive consideration of judicial remedies would ignore the fact that most disputes are settled outside the courts and that most parties prefer non-judicial settlements. It may be queried whether self-help remedies are really remedies in the strict sense of the word. They do not involve a court order; instead, the court gives permission to a plaintiff to act in a particular way. Nevertheless, in a broader sense, the plaintiff is allowed to redress her grievance by vindicating her own rights. By allowing a plaintiff to redress her rights in this way, the law affirms and reinforces the importance of certain interests. As noted in Ch 13, Varuhas has observed that the interests protected by vindicatory awards are often associated with the torts actionable per se.

The victim of a tort can generally claim compensatory damages for any loss suffered as a result of the tort. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for tort are discussed in this chapter: the assessment of damages and the attribution of responsibility. The assessment of compensatory damages for personal injury, which are usually claimed in tort, is discussed.

In this chapter, we consider exemplary damages and aggravated damages, remedies with a strong vindicatory flavour, as recognised by the High Court of Australia in Lewis v Australian Capital Territory.

Exemplary damages vindicate the plaintiff’s interests, but also explicitly punish the defendant for the wrong in question. Punishment is not commonly recognised as a central aim of private law. Some commentators have argued that it should not be part of private law. However, exemplary damages are said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong. Such damages also perform a vindicatory function. The fact that the law punishes a defendant for the manner of his interference with the plaintiff’s interests signals the importance of those interests.

The responsibilitiesand liability of the persons and organisations involved in the development of AI systems are not clearly identified. The assignment of liability will need government to mo e from a risk-based to a responsibility-based system. One possible approach would be to establish a pan-EU compensation fund for damages caused by digital technologies and AI, financed by the industry and insurance companies.

This chapter deals with all manner of state-derived prohibitions. Ancient states prohibited a broad variety of behaviours, threatening punishment for those who would transgress boundaries. The logic of prohibition was wide-ranging: from the marking of spaces, objects and officials as somehow distinct from the rest of ‘society’, leading factions within ancient states sought to preserve and protect their individual prerogatives. They also sought to reinforce their claims to leadership by incentivizing subjects to settle their disputes in state-sanctioned venues. The evidence for such prohibitions is extensive, but did they add up to something that we might legitimately call ‘social control’? Did ancient states succeed at inducing subject populations to accept their claims to rule? If so, how? This chapter suggests that the logic of prohibition was a site of contestation for both statecraft and subject-craft.

Deep fakes are a special kind of counterfeit image that is difficult to distinguish from an authentic image. They may be used to represent a person doing any act and are generated using advanced machine learning techniques. Currently, such an appropriation of personality is only actionable if the circumstances disclose one of a number of largely unrelated causes of action. As these causes of action are inadequate to protect claimants from the appropriation of their personalities, there should be a new independent tort or statutory action for the appropriation of personalities which is grounded in the protection of a person’s dignitary interests.

AI will disrupt the existing tort settlement. Tort law should be tech-impartial – that is, it should not encourage or discourage the adoption of new technologies where they generate the same level of risk, and victim rights should not be eroded by the use of new technologies in place of existing systems of work. Existing tort law is poorly suited to address some AI challenges, and a liability gap will emerge as systems replace employees since AI does not have legal personality and cannot commit a tort. A form of AI statutory vicarious liability should apply in commercial settings to address the liability gap and as the tech-impartial solution.

In this chapter we discuss two doctrines that are interrelated in that they impose liability either because of the relationship between the defendant and the tortfeasor (D2–D1) (vicarious liability), or the relationship between the defendant and the plaintiff (D2–P) (non-delegable duty of care).

We will start by examining vicarious liability, which is a form of strict liability. We will learn that the employer–employee relationship is the most common instance of vicarious liability. At common law, the employee who commits the tort is always liable, and so vicarious liability of the employer is in addition to the direct liability of the employee (tortfeasor). We will distinguish the employer–employee relationship from the relationship of principal–independent contractor, as the employer is not vicariously liable for the acts of independent contractors. Then, we will establish when the employee acts in the course of employment. We will also note the employer’s right of indemnity from an employee.

As we have already seen, there are three basic elements to a successful action in negligence:

1. (1) a duty to take reasonable care owed by the defendant to the plaintiff

2. (2) a breach of that duty of care by the defendant

3. (3) damage resulting to the plaintiff from that breach.

This chapter deals with the third element. This stage involves taking (yet again) three steps:

1. (1) Identify the damage having an adverse effect on the plaintiff to be recognised by law as damage for which compensation can be sought.

2. (2) Link the defendant’s conduct (act or omission) to the damage suffered by the plaintiff.

3. (3) Establish the scope of the defendant’s liability or, putting it differently, establish the extent to which the defendant should be found liable for the harm suffered by the plaintiff OR the type of harm suffered was within the scope of foreseeability.

Having discussed how the law of torts protects a person’s physical integrity and freedom of movement in the previous chapter, we will now consider how the law protects a person’s interests in property against certain types of interference, including trespass to land and trespass to personal property

In this chapter, we will explore the definitions and features of these trespass actions.