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    Rights statement: The final, definitive version of this article has been published in the Journal, Common Law World Review, 45 (4), 2016, © SAGE Publications Ltd, 2016 by SAGE Publications Ltd at the Common Law World Review page: http://clw.sagepub.com/ on SAGE Journals Online: http://online.sagepub.com/

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The Heil v Rankin approach to law-making: who needs a legislature?

Research output: Contribution to journalJournal article

Published
<mark>Journal publication date</mark>1/12/2016
<mark>Journal</mark>Common Law World Review
Issue number4
Volume45
Number of pages26
Pages (from-to)340-365
Publication statusPublished
Original languageEnglish

Abstract

In a remarkably frank paper, Professor Andrew Burrows has shed some light on the process by which awards for non-pecuniary loss in personal injury cases were uplifted in Heil v Rankin, a process in which he played a leading role as a Law Commissioner. In apparent disregard of the criticisms to which this process has been subjected, Burrows regards it as an example of a valuable ‘methodology’ of common law law reform. These criticisms are reviewed in this paper and to them is added a criticism of the concept of ‘normal decision-making’ by the courts that is the basis of Burrows’ views. Heil v Rankin was far from normal decision-making, but in this it was merely of a piece with all awards of damages for non-pecuniary loss, for such damages have no grounding in the common law adjudication of awards of compensation. The further development in Simmons v Castle of the judicial legislation effected in Heil v Rankin is also considered.

Bibliographic note

The final, definitive version of this article has been published in the Journal, Common Law World Review, 45 (4), 2016, © SAGE Publications Ltd, 2016 by SAGE Publications Ltd at the Common Law World Review page: http://clw.sagepub.com/ on SAGE Journals Online: http://online.sagepub.com/