Description

This paper considers the many and varied ways in which the law of tort interacts with regulatory
law (by which I mean mandatory regulatory norms, rather than voluntary codes of practice and the
like). Examples of these interactions include (1) the indirect influence of regulatory norms on
substantive tort law, whereby for example regulatory norms inform decisions on breach of duty in
negligence or substantial interference in private nuisance; (2) the more direct influence of
regulatory norms on tort via mechanisms such as a tort of breach of statutory duty, a doctrine of
negligence per se, a regulatory compliance defence or a rule of regulatory pre-emption; and (3)
various other forms of potential or actual interaction. Although I draw on all areas of tort law in the
paper, my particular focus is on the law of negligence, the law of private nuisance and the law of
product liability. The overall message of the paper is twofold: first, that the relationship between
tort and regulation is complex and multifaceted; and second, that as a matter of general principle
tort law should not automatically defer to regulatory norms and outcomes but should instead
incorporate them into its own analytical frameworks.