Tort Law as Engineering:
On the Virtues of Redundancy
David Howarth
University of Cambridge
25 Feb 2015
Law as Engineering
Law as engineering treats law as a design profession
and discipline
• Lawyers make devices useful for clients (contracts,
trusts, wills, companies, statutes, treaties)
• Interested in:
• Process of design
• Materials used in design (rules, patterns)
• Innovations
Tort law and engineering
• Tort law not an obvious field of application for LaE
• Dominated by litigation not by planning or design
• Some design activity around how to avoid litigation and converting tort into contract
• Some ‘military’ engineering around litigation
• High common law element
• Designing with the detritus of battle
• Judicial minimalism
• Violates first requirement of good design – clarity of objectives
• Short term objectives of litigants (and judges) pre-dominate
• Partial, non-systematic interventions by legislatures
Possible Objectives for Tort
• Possible broader objectives include:
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Corrective/ commutative/ transactional justice
Deterrence of harmful conduct
Protection against political misconduct or abuse of power
Social pacification
Material support for victims of misfortune
• Objectives not entirely compatible
• E.g.
• Corrective etc. justice versus support for victims
• Deterrence versus support for victims
Criticism of tort law
• Conventional analysis – tort not good for much
• Ineffective at corrective justice
• RAND study – only 1/3 of those who attribute misfortune to fault of someone else do
anything about it (insurance, direct contact) and fewer that 1/10 sue.
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Criminal law better at deterrence
Public law/ human rights law better at protection from political misconduct
Contributes little to social pacification and criminal law and police better at it
Social security and insurance better at providing material support of victims
• Conventional conclusion:
• No need for tort law at all (Atiyah Mark 2)
• Or, treat ‘corrective justice’ as the only aim and treat failure to achieve it as a
criticism of the state not of tort law (‘rights’ theorists/ ‘civil recourse’ theorists)
An unorthodox application of LaE
• Alternative LaE analysis
• Treat existing arrangements as if designed system
• Abstract away from how to what – what function being achieved?
• “Something else does it better”
• But still exists
• Time for some reverse engineering
• Engineering inference:
Redundancy
• Excess capacity designed to eliminate or reduce
adverse impact of a component failure
• Two or three engines, not one bigger one
• Using more than one antibiotic rather than more of
the best one
• “Something else does it better” traded off
against reliability
• NB not the same economic criterion of
‘efficiency’
Efficiency versus Reliability
Efficiency
Reliability
• All resources allocated to most
productive/satisfying uses
• Failure to deliver a cost to be
factored into price
• Acceptable failure rate defined
first
• Cost of achieving that rate is a
given (not confidence around it,
but confidence that achieved)
• Efficiency given reliability, not
efficiency in reliability
Tort as redundancy
• Deterrence of harmful conduct
• What if criminal law/ product regulation ineffective?
• E.g. Cummins, Phillips and Weiss, ‘The Incentive Effects of No-Fault Automobile
Insurance’ (2001) 44 Journal of Law and Economics 427
• Protection against political misconduct or abuse of power
• What if HRA repealed?
• Restrictions on JR?
• Pacification
• What if police/ prosecution authorities not interested (neighbour disputes)
• Material support for victims of misfortune
• When social security not enough/ fails (eg restrictions on payments to immigrants?)
Corrective etc. justice function
• Primary provider of corrective justice is CONTRACT LAW
• Tort has redundancy function to provide it where contract fails
• NB in most of the world injury at work and medical claims are contractual
rather than tortious
• Negligence arises around the edges of contract (Donoghue)
• Rise of tort is the rise of traffic accidents – i.e. no plausible contract case
Accident Cases Registered with CRU
1,200,000
1,000,000
800,000
600,000
400,000
200,000
0
2006/07
2007/08
2008/09
Clinical Negligence
2009/10
Employer
2010/11
Motor
Other
2011/12
Public
2012/13
Liability not known
2013/14
Total
Is tort a good redundant system?
• But even conceived of as adding redundancy, not necessarily best
design
• Redundancy can lead to failure through complexity
• Interference of redundant system in functioning of main system (3MI)
• Costs of redundant system versus its benefits:
• How serious is the loss if primary component fails?
• What is the probability that the back-up component will also fail?
• Effectiveness/ coverage
• Lack of independence (correlated errors)
Assessing tort as a redundant system
E.g.:
• Deterrence
• High importance if fails – increase in injuries to others
• Some complexity problems
• Use of different courts and standards of proof
• But use of different courts reduces interference
• (in contrast to e.g. French partie civile)
Assessing tort as a redundant system
E.g.:
• Deterrence
• Costs versus benefits
• Cost Effectiveness:
• If England and Wales were to adopt for motor accidents a NZ style system instead of tort:
• Admin costs would be about £1.4bn a year lower
• There would approximately 170 more deaths, 4300 more serious accident victims and
37,000 more minor accident victims a year
• Correlation of errors
• Possibly in case of scofflaws, but probably works through different mechanism (insurance)
Assessing tort as a redundant system
E.g.:
• Political function
• High importance of harm if failure (right to vote, privacy versus state)
• Some complexity problems (interaction of remedies, different meanings of
‘reasonable’) but do they lead to primary failure?
• Some interference with other mechanisms e.g. political accountability frustrated by sub
judice rules, but also applies the HR law
• Costs versus benefits
• Cost effectiveness – possibly slightly more expensive than HR/PL but similar
effectiveness
• Some correlated risk problems (access to justice, common procedural problems e.g.
CMPs, but other many respects different procedure – eg no JR filter)
• But sufficiently different to act as back up
Assessing tort as a redundant system
E.g.:
• Corrective Justice function
• Arguably low importance if fails (to be tested empirically)
• How much does it really matter to people that compensation in (especially) traffic
accidents flows from or causes a detriment to the person responsible for the accident
• High risk of interference with existing mechanisms (e.g. contract)
• Product liability
• Complexities of pure economic loss
• Psychological injury/ stress at work
• Costs versus benefit
• RTA coverage – higher than average recourse, and fairly cheap (low thousands)
• But high correlated risk and severe interference problems caused by not limiting doctrine
to RTA cases
Conclusions
• Tort law justified as redundancy system for deterrence and political
functions but possibly less so for corrective justice
• (and probably not for pacification – not sure about material support)
• Reframe debate about the desirability of tort law
• Is the extra reliability tort provides in deterring harmful conduct and in
protecting citizens against the state worth it in the light of the (mild)
confusion it sows in the primary provider of corrective justice?
• If answer is yes, we might instead concentrate reform efforts not on
restricting tort but on how to make it a better back-up system –
reducing interference, removing correlated risk