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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Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
}
TY - JOUR
T1 - The Heil v Rankin approach to law-making
T2 - who needs a legislature?
AU - Campbell, Ian David
N1 - 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/
PY - 2016/12/1
Y1 - 2016/12/1
N2 - 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.
AB - 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.
KW - judicial legislation
KW - law reform
KW - non-pecuniary loss
KW - personal injury system
KW - tort
M3 - Journal article
VL - 45
SP - 340
EP - 365
JO - Common Law World Review
JF - Common Law World Review
SN - 1473-7795
IS - 4
ER -