This House has seen the Collapse of Principle in the Tort of Negligence
Wednesday 29 March 2006-07-19
Location: Lecture Theatre, BIICL
Chair: Lord Hoffmann
The motion before the house is that ‘This House has seen the collapse of principle in the
tort of negligence’.
For the motion:
Mr Spencer, Hertford
Miss Gumbel, Lady Margaret Hall
Mr Edis, University College
Against the motion:
Mr Davidson, the other place
Mr Mansfield, Oriel
Miss Rodway of no particular place
Mr Spencer - Mr President, before there can be any debate in relation to the collapse of
principle in the tort of negligence, it is first necessary to define what we mean by
principle in this context. The dictionary defines principle as a fundamental truth or
proposition serving as the foundation for belief or action. It is also defined as a basic
generalisation that is accepted as true and can be used as a basis for reasoning or conduct.
Immediately it can be seen that principle is something fundamental. Once a principle is
identified it should be adhered to and not departed from. This truth is reflected in
quotations concerning principle. Franklin Delano Roosevelt once said, “Rules are not
necessarily sacred, principles are.” And I like this quotation from Max Nordau,
“Civilization is built on a number of ultimate principles...respect for human life, the
punishment of crimes against property and persons, the equality of all good citizens
before the law...or, in a word justice.” On the other hand, Groucho Marx said, and
forgive my accent, “Those are my principles, and if you don't like them... well, I have
others.”
Groucho aside, if Roosevelt and Nordau are correct it can be seen that principle is pretty
fundamental to any society that likes to think of itself as civilised. That is equally true of
a civilised society’s legal system. If this has seen the collapse of principle in the tort of
negligence, then those who are responsible for presiding over the preservation of
principle within our laws generally, and the law of tort in particular, have much to answer
for. I am referring in particular to the judicial committee of the House of Lords. Has this
House seen the collapse of principle in the tort of negligence? Well the next speaker for
this motion, Liz Gumbel, has produced a survey of quotations and decisions spanning the
last 75 years which she will use to demonstrate how principle has been abandoned. For
my part I would like to concentrate on a particular decision close to my heart, Chester v
Afshar, a case I understand to have been part of the motivation for this debate.
You will recall, of course, that the surgeon Mr Afshar failed to give his patient Miss
Chester an adequate warning of the risks of spinal surgery. She underwent the surgery
and the risk she should have been warned of eventuated. However she could not show,
indeed she could not even seek to show, that properly warned, she would not have
subjected herself to those risks at any time. All she sought to prove was that, properly
warned, she then would not have undergone the operation. In that case, the majority of
the House of Lords deliberately and explicitly abandoned the principles of the law of
causation, an integral part of the tort of negligence, in favour of a policy decision which
had the effect of penalising the defendant for his breach of duty - even though he did not,
in terms of traditional rules of causation, cause the damage of which complaint was
made.
The main speech of the majority was given by Lord Hope. He stated that the answer to
the problem of causation presented by the case “cannot be based on conventional
causation principles”. He recognised the risk of which the claimant should have been
warned was not created by the failure to warn but was an inevitable risk of the surgery,
however skilfully and carefully it was carried out. Nor did the failure to give an adequate
warning of that risk increase it or deprive the claimant of the opportunity to reduce it. He
said that to expose someone to a risk to which that person is exposed anyway is not to
cause anything. He accepted in terms that the defendant’s breach of duty did not cause
the patient’s injury saying, and I quote, “The relevant rule is the duty which the law has
imposed on the doctor, the duty to warn. Did the doctor’s breach of that duty cause the
patient’s injury? It would appear that this question can only be answered in the negative.
He did nothing that increased the risk to the patient or even altered it. It was a risk to
which she was exposed anyway. It was the same risk irrespective of when or at whose
hands she had the operation.”
Well one might have thought that would be the end of the case, victory for the defendant,
but no. The majority of the House of Lords decided that in this particular case the usual
rules of causation, the principles upon which causation and the tort of negligence are
based, could be cast aside and an exception be made to allow her to succeed. Again the
leading judgement is to be found in the speech of Lord Hope. He asked himself the
question whether the defendant should be held liable for the harm which ensued and
whether “in the unusual circumstances of this case, justice requires the normal approach
to causation to be modified”. He and the majority decided that justice did so require so as
to uphold the value of the duty which had been breached. He said that “the function of
the law is to enable rights to be vindicated and to provide remedies when duties have
been breached. Unless this is done the duty is a hollow one, stripped of all practical force
and devoid of all content.” (I say in parenthesis that that was not actually correct but
never mind.) “It will have lost its ability to protect the patient and thus to fulfil the only
purpose which brought it into existence. On policy grounds, therefore, I would hold that
the test of causation is satisfied in this case. I would hold that it can be regarded as
having been caused in the legal sense by the breach of duty.”
So what we have is a legal fiction: “It can be regarded” - to be regarded in this case for
reasons of policy. Is the function of the law of tort to provide remedies when duties have
been breached? No, not unless actionable damage has thereby been caused. Duties are
breached every day without causative consequence, for example whenever anyone drives
his car too fast and thereby endangers other road users but without actual damage or
causation. My interpretation of Chester is that traditional principles of causation gave
way to something described as legal policy in order to afford Miss Chester a remedy.
Now this conflict between principle and policy has been addressed by jurisprudential
philosophers. Cases such as Chester and before it McFarlane raised in a very acute form
the question what theory of adjudication is being applied by our highest Court. This
engages the work of that great jurisprudential thinker Ronald Dworkin. It is fundamental
that principles describe rights whilst policies describe goals. Thus a principle is a
standard which is to be observed, not because it will advance or secure some economic,
political or social situation, but because it is a requirement of justice and fairness. Like
Ronald Dworkin, I believe it is the function and duty of the law, and particularly the law
of tort, to respect individual rights. It is the duty of our adjudicators to uphold individual
rights. If an individual’s rights are to be squashed or trampled in pursuit of some
economic, political or social goal, I am entitled in a democratic society to hold those who
do so politically accountable to me - otherwise we live in a totalitarian society where my
rights are trodden under foot. That is why principle is so important to adjudication.
It is why Ronald Dworkin says that rights are trumps. They have what he referred to as a
threshold weight against community goals. So when Lord Steyn refers to the exception
to principle which he espoused in Chester being “a narrow and modest departure from
traditional causation principles”, let us not fool ourselves into thinking that because it is
only a narrow and modest departure it therefore doesn’t matter - it’s like being just a tiny
bit pregnant! It matters enormously. It strikes at the very heart of our legal system. Such
exceptions create enormous difficulties for those of us who are practising lawyers. There
is merit in the law being certain and in the outcome of cases being predictable. A high
degree of certainty and predictability is achievable when decisions are based on principle
rather than policy. Our clients are entitled to advice as to what the law is and whether
their rights will be upheld. We hold as anathema the concept of rights being removed
retrospectively but when the court calls upon policy as justifying the departure of the
legal principle, let no one doubt that what it is in fact doing is imposing retrospective
change in the case before it. That is deeply unfair.
In any tort action the central question is which side has the right to win, not whether the
interests of the community as a whole should be satisfied. So I challenge those that
oppose this motion to demonstrate that in such cases as Chester and McFarlane we do
not see the collapse of principle in the tort of negligence. And I challenge them to justify
this abandonment of principle. Let me re-word this motion. I would say this House
regrets the collapse of principle in the tort of negligence. I go further, I condemn every
example which Liz sets out of occasions when an individual’s rights have been sacrificed
on the altar of legal policy. Who do those judges think they are?
Mr Davidson – Mr President. I love being challenged by my former colleague Mr
Spencer. He has always been to me the proof of the reasonable man. He’s a lovely
person. We always disagree and he’s always reasonable.
My favourite dictum in the law reports at the moment comes from Lord Steyn. He said in
one of those wonderful short sentences,
“In law, context is everything.”
I’m just about to demonstrate this by citing from an opinion of my own, written 18
months ago, ripping out of context words in an opinion which were of course very
respectful of the House of Lords. What I wrote was:
“One could cite from almost every House of Lords and Privy Council case on duty of
care since Hedley Byrne but it would be unhelpful to do so”.
The only reason it would be unhelpful was because the opinion would have been too
long.
With this debate, I thought straight away of the expression ‘the search for principle’ and
of Lord Goff. That expression, as almost everyone will know, came from a 1983 lecture
he gave under that title, and it has inspired many of us who do spend our professional
lives not answering simple questions but puzzling over difficult ones, to quest for justice
and try to find a suitable answer to a new problem. If it is an old problem it is very easy,
you answer yes or no; but as a solicitor friend of mine once said, when I complained that
the only cases ever sent to me were difficult, “We do the easy ones ourselves”.
The problem about the search for principle is that you may find more than one principle.
What do you do if you find more than one principle?
I answer with Shakespeare:
“Good reason must perforce give way to better”.
He very nearly answered the whole of the problem for this evening’s debate. But not
completely, because it is not always logic that can tell you which principle is better. The
proposers of this motion, to make it good, have to challenge the opening sentence of one
of the best known works of legal literature in more than a hundred years, The Common
Law by Oliver Wendell Holmes, who wrote:
“The life of the law has not been logic, it has been experience”.
Now the best from our side is going to come later. The glorious Susan Rodway is going
to show that there is method in the law’s treatment of psychiatric injury cases. The
wonderful Guy Mansfield is going to take you not to Birmingham by way of Beachy
Head, but of course from McGhee to Gregg by way of Chester. That leaves me, on the
timing, with about eight and a half minutes to deal with the whole of the rest of the law of
negligence.
Policy choices are as necessary now as they have ever been. The law of negligence
necessarily involves policy choices between principles, and we are going to have to
address the terms policy, principle and pragmatism.
There never was a heyday when the common law produced all the right answers on the
basis of principle.
Think back over four things.
The first is the law of interest. Dr Mann, such a figure in this institute, wrote this of the
common law of interest:
“The history of interest, particularly in Admiralty, displays a lack of legal analysis and a
degree of positivism and inflexibility which show the common law at its worst”.
Think of contract. Contract gave us freedom of contract. It gave us abuse of freedom of
contract, L’Estrange v. Graucob, and, in due course, the Unfair Contract Terms Act.
Think of personal injury litigation. It gave us the doctrine or, if you like, principle, of
common employment, and that had to be dealt with and the Law Reform (Personal
Injuries) Act.
The law of negligence in general and personal injury in particular then gave us the
doctrine that contributory negligence operates as a defence to a claim for negligence. That
had to be dealt with by the Law Reform (Contributory Negligence) Act so that it operated
only as a partial defence.
On the proposers’ view of the law, these things are all principles; and what happened was
that the principles became embedded by precedent and then had to be dealt with by way
of legislation.
The courts have to meet difficult problems and fine minds are there to meet them. Many
of them are here this evening and if I may look at a member of the Court of Appeal I can
say of course we know that many of the finest legal minds in the country are to be found
in the Court of Appeal. We also know that there are periods when the success rate of
appeals from the Court of Appeal exceeds 50%. Is it that the Court of Appeal can’t
understand principle and the House of Lords can? Or is it perhaps that the Court of
Appeal does understand principle and the members of the House of Lords find it more
difficult after their time in the Court of Appeal? What would have happened in BBL, I
ask myself, if the personnel had been slightly adjusted? Suppose Lord Hoffmann had at
that stage been Master of the Rolls and presiding in the appeal in the Court of Appeal,
and Lord Bingham had been senior Law Lord when BBL came to the House of Lords. Of
course it is true that then Lord Bingham would have had the advantage of Lord
Hoffmann’s judgement in the Court of Appeal, and it may be that he would have upheld
it; or it maybe that he would not.
The problem about policy, we suggest, is this. We think of policy in terms of
government. Consider the case in which a Law Lord whose name begins with H gave an
important speech about the, to my way of thinking, iniquitous decision of the government
that it pay differential rates of pension to people living in certain overseas countries as
against those paid to people living here, the case of Carson. The minister will have been
delighted to be told by that Law Lord that the policy was fair and rational. The reason
why the minister will have been delighted to be told that is that he didn’t think so himself.
What he had said in the House of Commons was “I have already said I am not prepared
to defend the logic of the present situation. It is illogical. This is an historical issue and
the situation has existed for years. It would cost some 300 million pounds to change the
policy for all concerned”. That is what we tend to think of as policy because it is
executive policy and it is often based purely on expediency and particularly on financial
expediency.
For another example, take Wilson v First County Trust, the case on the Consumer Credit
Act. In the Court of Appeal, which held that the relevant provision infringed the Human
Rights Act, the government was challenged to explain exactly why it was that the courts
did not have power to look at agreements and decide whether or not they should be
enforced, but why the Act of Parliament said they should simply be unenforceable.
Counsel was unable to explain to the Court of Appeal any basis on which the law was as
it was, other than that the government of the day thought that it should be so.
That is policy as it is understood in wide debate on the basis of executive decision.
It is not policy in the way that it has been developed in the courts by the judges, whose
policy choices are based explicitly on the core principle, which Mr Spencer rightly
espouses, which is the principle that one should reach a just result. Of course all of us in
different cases can have views of what is just and unjust, and one can take the view that
one would have preferred to see Chester decided differently, without saying that it is a
case not based on the principle of looking for justice. One can see the way policy is
considered, identified, refined, over-turned on appeal; principles are looked at, changed,
modified in the light of experience.
Take Hedley Byrne, one of the great cases as we know on which many of my generation
were brought up. It was explicitly a principle decision which ran into difficulty when the
Unfair Contract Terms Act was passed because there was then Smith v. Eric S Bush.
In Smith the House of Lords had to consider how to deal with a doctrine based on
voluntary assumption of responsibility when the defendant has said, “I am not prepared to
assume responsibility”. Lord Griffiths dealt with it by saying he didn’t find the concept
of assumption of responsibility very helpful. But then when you come to Henderson v
Merrett you find the House of Lords have moved on again, and back we are to a position
where we are talking about assumption of responsibility by conduct assuming
responsibility, taking out the word ‘voluntary’. You have wonderful changes if you look
at the history of Hedley Byrne, one of the best being the moment when in Mutual Life v
Evert the Privy Council explained the dicta of Lord Reid and Lord Morris in Hedley
Byrne, in a majority decision. The minority in Mutual Life were Lords Reid and Morris
who were told by the majority what they themselves had meant in Hedley Byrne.
I propose to end with what Lord Reid said in a most important case applying the 1966
practice statement on judicial precedent. In Herrington, Addie v Dumbreck was
overruled and it was overruled on the basis that as Lord Reid said, there are cases which
cannot be solved by reference to legal principle. This, he indicated, was such a case.
You have to take a policy decision about what you are going to do of the case of child
trespassers. That decision was taken on the basis that it was a policy decision, but what
drove the policy was not some government view of what was expedient, but the straightforward view that what in a modern society public policy requires is that there should be
protection for child trespassers.
Mr President, we oppose this motion.
Miss Gumbel - Thank you Mr President. Well the argument for the opposing team
appears to be that we can retain principle in the tort of negligence by either expanding the
definition of principle so it includes everything, including policy, public policy, legal
policy, distributed justice, human rights considerations, whatever else might be the
explanation for decisions, which our side would say go beyond the bounds of principle
and apply different considerations in reaching decisions. So one way of maintaining that
there is still principle in the tort of negligence is simply to expand the definition of
principle to include all other considerations that might be, other than principle.
The second method that seems to be adopted to maintaining that there is still principle in
the tort of negligence, is to say well there may be more than one principle and if we don’t
stick with the principles that conventionally and traditionally have been seen as the
principles underpinning the tort of negligence, we can adopt some new principles and if
other people call them policy, to us they are simply new principles. And we on this side
say that that simply won’t do. That doesn’t prove that there has not been a collapse of
principle, rather to the contrary it proves there has been a collapse of principle because
you simply have to re-define principle in order to cling on to it. We would say that
looking back at the history of the tort of negligence and its fundamental assumptions in
order for there to be principle, the principles have to be capable of definition and capable
of, whilst not necessarily not moving with times, at least being capable of meeting some
basic definitions.
A principle is a general law or a rule, a guide of action, a fundamental assumption from
which one moves on. It is not a policy decision based on obtaining the result which
seems fair and just. The definition given, that policy choices are based on a core principle
that you reach a just result which is how Mr Davison described the principle, simply
proves that. If all you are doing is seeking to reach a just result by policy choices, you
have departed from principle. Looking back to 1923 when Sir John Salmon wrote the
preface to the sixth edition of the Law of Torts, the last one published in his life time, he
said in that preface, for the most part the law of torts is well settled. Such questions that
arise relate in general to supplement the detail. Well I’m not sure that anybody here
would agree that since 1923 all the courts have done is fill in some supplementary details
to the tort of negligence. By the time of Donahue v Stephenson, some years after that, the
search was already for the expansion of categories of negligence, already for new
situations, but was to apply the existing principles of duty of care and breach of the duty
to take reasonable care and see whether those principles fitted the circumstances and new
situation before the House in Donahue v Stephenson. As Lord Tankerton said, the
English law demonstrates how impossible it is to catalogue finally, amid the ever varying
types of human relationships, those relationships in which a duty to exercise care arises.
That, of course, is right. You have to look at new situations but you have to look if you
are applying principle at new situations and apply the existing principle, not say because
this is a new situation you don’t need the principle, this will be a matter of what is just in
the circumstances and of policy consideration.
Already by the time of Headley Byrne Lord Pearce was saying that how wide the sphere
of the duty of care and negligence is to be laid depends ultimately upon the court’s
assessment of the demands of society for protection from the carelessness of others. That
could be seen in one sense as looking to policy considerations and the courts recognising
that the demands of society did govern the way that cases in negligence should be
decided. But it didn’t mean that there was already a departure from applying the general
underlying principles. And Lord Reed in Dorset Yacht, when asked to consider in the
arguments on behalf of the Home Office policy considerations, could see no grounds for
applying public policy in that situation. He was addressed on the basis of the New York
Court of Appeal decision where public policy had been argued to direct the court to find
that there couldn’t be any liability for the State. Lord Reed said: “[it] may be that public
servants of the State of New York are so apprehensive, easily dissuaded from doing their
duty, and intent on preserving public funds from costly claims that they could be
influenced in this way and my experience leads me to believe that Her Majesty’s servants
are made of sterner stuff so I had no hesitation in rejecting this argument. I can see no
good grounds in public policy for giving immunity to a public department and that by
1970 was the attitude in relation to overriding policy considerations to the fundamental
underlying principle.”
We then had the Anns and Murphy blip. That is one can look at it in that way but in each
of those decisions there was a search for principle and the difference of application. In
Caparo v Dickman, which came between those two decisions, the principle in relation to
applying negligence was given a different interpretation. In that case, we see the third
limb of the fair, just and reasonable test but still brought in as part of the principles of
how you decide whether a particular case comes within the requirements for negligence,
a breach of duty and causation. As Lord Gough stated in a different context in a revenue
case of Woolwich Building Society v the Inland Revenue, “The problem is I am well
aware of the existence of the boundary; I’m never quite sure where to find it. It’s
position seems to vary from case to case. Indeed if it were to be as firmly and clearly
drawn as some of our mentors would wish, I cannot help feeling that a number of leading
cases in your Lordship’s House would never have been decided the way they were.” For
example the minority view would have prevailed in Donaghue and Stephenson, so
looking for the boundaries is not necessarily departing from principle either. But by 1993
when there was a seminar at All Souls chaired by the then Sir Thomas Bingham, the
Master of the Rolls, Dr Jane Stapleton presented a paper describing what she called the
collapse 20 years ago of confidence in tort law. She said that it had little to do with the
state of formal doctrine concerned. The large gap between the apparent promise of tort
law and its reality recognised the difficulty the courts saw with such a wide range of
situations in which they were being asked to find that the negligence principle should be
applied.
Dr Stapleton said the dilemma these cases throw up is that there is a lot of conduct in
modern life which can be implicated in the occasioning of injury, and much of this can
plausibly be described as negligent. This was the problem that the courts were now
having to deal with - the extent and the variety of circumstances in which the litigants
were looking for the application of the basic principles of tort law. Rather than continuing
to apply them, there was a search for confining, at least in relation to policy
considerations whether they were a legal policy or public policy considerations, the
circumstances in which a duty of care would arise and where breaches would be found. In
X v Bedfordshire County Council Sir Thomas Bingham in the Court of Appeal described
how the first claim on the loyalty of the law is that wrong should be righted. He then
began to implement a policy consideration to rule that out that has continued through
cases since and most notably McFarlane.
Miss Rodway – Mr Chairman I am heartened to hear there is something of an overlap in
Miss Gumbel’s talk to the audience tonight between what she considers to be principle
and not principle. We have heard the definition of principle as a fundamental assumption
on the basis of a chain of reasoning but there is another definition I wish you to consider
which is that of pragmatism. Pragmatism in the Oxford English Dictionary is defined as
treating the facts of history in their connections with each other as cause and effect and
with reference to their practical lessons. The fallacy of the motion, Mr Chairman, is that
in order to succeed it must dissect principle away from pragmatism and seek in some way
to draw an analogy between our law of tort - which is created incrementally by case,
precedent in a changing world - and immutable principles founded in areas such as
mathematics and science where such foundations are essential for evolution and
advancement. It is a fundamental tenet of our law of tort that it seeks to reflect our
civilised social obligations to each other within a fair, just and workable framework. As
such it is axiomatic that all matters of principle within the law of tort are necessarily
organic and evolutionary. To suggest that the principles which inform such law have
collapsed is to suggest we’ve reached a point of anarchy in our society.
The principles of the law of tort are not collapsing but merely flexing in response to the
greater burden we all share in protecting the vulnerable whilst at the same time
containing our duty within workable limits as our skills and knowledge increase. Of
course the very fabric of this democratic society of ours is enriched by competing
principles so it is little wonder that that too is reflected in our law of tort. But it is only
the casual and uneducated observer who should be forgiven for thinking that this
sometimes one step forward and two back approach is a demonstration of collapse of the
fundamental principles. Where such a complaint is made I suggest it probably arises
more from an adverse reaction to the pragmatic framework that is a necessary corollary to
any attempt to circumscribe our rapidly enlarging and involving social obligations. In
short, there would be no law of tort without a combination of principle and some
necessary circumscription, just as there would be no motor car if there were purely an
engine with nothing to encase it, or no human being without a body, however limiting
and cumbersome that might be at times.
To demonstrate the point I am going to take as examples some of the very cases which
have fomented the debate on disappearance of principle within the realm of recovery for
psychiatric harm. By taking that rather short straw of the underlying cases I shall
demonstrate that the motion cannot be carried and that what is alleged to be a collapse of
principle is no more than a reflection of the general difficulty in deciding where lines
have to be drawn in accordance with principle in a modern first world society. We start
way back in the 1940s with the case of Bourhill v Young where everyone will remember
the Scottish pregnant fish wife, or perhaps one should put it the other way round, could
not recover for the still birth following her shock suffered from hearing a violent motor
cycle collision. The House of Lords found the negligent motor cyclist owed no duty of
care as he could not reasonably have foreseen that his negligent driving would cause her
such injury. Fifty years later in White, Mr Chairman, you were able to look back at the
test in Bourhill and say that that test of foreseeability was one which was combined with
a robust wartime view of the ability of the ordinary person to suffer horror and
bereavement without ill effect.
By 1953 in King v Phillips, Lord Justice Denning had encapsulated the test of liability for
shock as being foreseeability of injury for shock. If we fast forward to 1983 we get the
case of McLoughlin v O’Brien, the distressing facts of which you will remember - the
husband and three children seriously injured, the mother not present told by the
neighbour and then going to the hospital to see the disarray of her family. The Court of
Appeal considered that there was no claim. The House of Lords allowed the appeal but
there it was that it recognised the need for there to be some circumscription or limitation.
A pure test of foreseeability would not always do. Lord Wilberforce said foreseeability
must be accompanied and limited by the law’s judgement as to the persons who ought,
according to its standards of value or justice, to have been in contemplation. He set out
there the three tests of which we are familiar. First that there is the proximity test of the
closeness of the relatives, husband, wife, parent, child, second: proximity to the accident,
the immediate aftermath; and thirdly the sudden appreciation by sight or sound of the
horrifying event. Those were not applied in that case but the decision was applied, as we
know, in the later case of Alcock, the first of the Hillsborough cases.
Now we are at 1992. You will remember the case. This is the case of the individual ten
claimants who were not present but were related to the spectators who had died. The
House of Lords rejected the simple test of foreseeability and went back to Lord
Wilberforce’s formulation and his suggested rubric. A few years later in Page v Smith,
1995, we have a decision that appeared to go back to the case of King v Phillips. The
claimant was involved in a car accident, which only caused psychiatric injury. The Court
of Appeal felt that was not reasonably foreseeable –the House of Lords disagreed. There
was some confusion over terminology and I won’t have time to deal with the semantics
of that. Their Lordships’ decision was based upon the simple principle, which we see
goes right back, that if physical injury was foreseeable it didn’t matter that it was a
different type of injury to that which had in fact been suffered. So we see there a
reflection of the changed attitude in society that psychiatric injury was a real injury, no
different in essence to a broken limb. As tortfeasor you could not escape liability by
reaching for what had become a false distinction.
Page moved with the times and was firmly based on well established principle. This
brings us to my final case, White v The Chief Constable. Again it was the Hillsborough
disaster that stimulated the action. This time you will recall the police officers as
rescuers were suing their own employer. Mr Chairman, this was a decision entirely in
line with, and demonstrative of, the principles of the law of tort. As Alcock had properly
imposed certain limitations upon recoverability, it would have been repugnant to
principle and society to allow a class of claimants who did not overcome such limitations
nonetheless to recover. So we, on this side against the motion, do not agree with the view
that was held by one of their Lordships in the House of Lords, that the law of torts should
in principle aspire to provide a comprehensive system of corrective justice giving legal
sanction to a moral obligation on the part of anyone who has caused injury to another but
that this has been abandoned in favour of a cautious pragmatism through control
mechanisms, more or less arbitrary conditions which a plaintiff had to satisfy and which
were intended to keep liability within what was regarded as acceptable bounds.
Pragmatism and limitations must accompany principle in tort if, in the famous words of
Cardozo J we are not going to be liable for an indeterminate amount for an indeterminate
time to an indeterminate class. In fact, Mr Chairman, you went on to demonstrate this
symbiosis of the principles that guide the law of tort in society when elaborating on the
reasons to refuse to extend the class of those able to recover to include the police officers.
You said that “I think such an extension would be unacceptable to the ordinary person
because it would offend against his notions of distributive justice. He would think it
unfair between one class of claimants and another at best not treating like cases alike and
at worst favouring the less deserving against the more deserving. All in all I have no
doubt that most people would regard it as wrong to award compensation for psychiatric
injury to the profession and deny compensation for similar injury to the relatives.”
Mr Chairman, we urge this house to endorse the principled thinking which lies behind
that statement and others like it and to reject the motion.
Mr Edis – Mr President, first of all it’s probably not a terribly good start from the point
of view of arguing in favour of this motion to start with a proposition that “good reasons
must give place to better” as though that were the source of some great wisdom. The
origin of that expression was Brutus, who having unburdened himself of it, proceeded to
involve himself in a catastrophic battle which ultimately led him to destruction and
suicide. I don’t know whether that’s likely to happen to those who oppose this motion,
time will tell. So far as our position is concerned, in brief, we say that cases which are
multiplying in numbers recently, which expressly acknowledge that they are departures
from established principle and justifiable only therefore on grounds of policy, or one
might say the perceived justice of the individual case, are a bad thing.
We invite you to consider Chester v Afsar1, McFarlane2 and Rees3, the wrongful birth
and wrongful life cases. We invite you to consider what is the true role of pragmatism as
against what is supposed to be principle? But if we fail in establishing that, and we
persuade you that in fact pragmatism must necessarily be a guiding force in the law of
tort, which appears to be the line being taken against us, it still means that there isn’t a
great deal of a role for what, in the current perception of the progress of the law of tort,
1
[2005] 1 AC 134
2
[2004] 1 AC 309
3
[2000] 2 AC 59
one might think of as principle, because wherever principle conflicts with a perceived
more powerful policy, the policy wins. That appears to be the present state of the law.
Perhaps that wasn’t always the state of the law and if that’s the case then there has been a
collapse of what heretofore was believed to exist. Whether that is a good thing or a bad
thing may be beside the point. We have suggested that we should also try and persuade
you to regret the failure of principle as well as noting it, but the motion is what it is. So
far as the case we’ve put is concerned we have yet to hear a formidable response, with
respect. We are saying that Rees, McFarlane and Chester are unprincipled policy
decisions: some of us might disagree with the result of some and others might disagree
with others, but as to the classification of the nature of the decision, it may be hard to
argue with that proposition and we haven’t heard anyone yet argue with it.
The psychiatric harm cases are predominately principled decisions but you can’t say that
because there is a line of authority which is principled, therefore there has not been a
collapse of principle. Some areas of the law of tort may well still be governed by their
own principles. In cases brought by secondary victims, there is a principle based on
remoteness that such a person must establish a connection with the accident closer than
that of a mere spectator. Proximity and propinquity in defining those who may have a
cause of action are close to the heart of our law of tort. But here too there is a substantial
role for policy, particularly in the control mechanisms in relation to secondary victims
which are necessarily somewhat arbitrary. I did wonder whether recent developments
might have led at one stage to a different argument being run years ago, when Guy
Mansfield led me in one of the Hillsborough cases. One of the arguments we had was
whether a half-brother was a close enough relative to qualify as being entitled to succeed
as a secondary victim. I wonder whether looking at some of the recent developments of
the law of tort we might have been better to argue that the recovery should be limited to
only 50%: half brother, half damages. Well we didn’t and we lost!
Let’s try and consider perhaps what principle might be. If we consider it in more
pragmatic terms than have been used in some quarters in this debate, we might be able to
demonstrate that it certainly has collapsed. Let’s consider Anns v London Borough of
Merton4 for a moment. When Lord Goff made his Macabaean lecture, The Search for
Pirnciple, 20 or more years ago5, he noted the limits of the Donoghue v Stephenson6
decision, and noted that a generalised principle of negligence didn’t come from there, but
came from Anns. He wondered whether Anns would be particularly influential. Little
could he have known what was going to become of it. He said that the principle of Anns,
though generalised,
“will always be subject to exceptions to accommodate situations where the
imposition of liability is felt to be individually or socially unjust. The stream of
the law of negligence will, in all probability, flow majestically along.”
Well I’d like to carry on quoting from Lord Gough, particularly in this Institute, but I
must move on.
Anns was a principled decision with a role for policy in it and His Lordship imagined that
that would set the tone for the law of negligence. It may be that the Anns test also
addressed another debate of recent currency, about whether or not one ought to be
looking at some of these policy issues at the duty stage or later at the breach level. I shall
return to that if I have time briefly in a few minutes. We all know what happened to
Anns. Anns was comprehensively dumped by the House of Lords in what Christian von
Barr describes as one of the most “spectacular” tort decisions of recent years (whether he
means that in a sense that the IRA used to use the word spectacular, that is to say as “a
glorious and destructive act which got in the newspapers” or whether he means it in an
approbatory sense he doesn’t make clear). What was the reason given for the overruling
of Anns? Lord Keith said in Murphy7 about Anns.
“In relation to the scope of the duty owed by a local authority it proceeded upon what must,
with due respect to its source, be regarded as a somewhat superficial examination of principle
4
[1978] A.C. 728;
Reproduced in The Search for Principle: Essays in Honour of Lord Goff of Chievely Ed Jones and
Swadling (2000) OUP.
6
[1932] AC 562
7
Murphy v. Brentwood B.C. H.L. [1991] AC 398, 472
5
and there has been extreme difficulty, highlighted most recently by the speeches in D. & F.
Estates, in ascertaining upon exactly what basis of principle it did proceed. I think it must
now be recognised that it did not proceed on any basis of principle at all, but constituted a
remarkable example of judicial legislation.”
A peculiar observation about a decision which undoubtedly was a decision taken on what
was perceived to be principle.
What he meant was that the decision in Anns wasn’t derived from precedent which is
perhaps not the same thing as being not a principled decision. So perhaps Murphy was
saying the principle of the law of tort is only that it must follow case by case on the strict
application of the rules of precedent, which might mean that what we might think of as
principle has to some extent already collapsed. In X v Bedforshire, Lord BrowneWilkinson gave six reasons for holding that the social workers owed no duty to the child
in the circumstances which arose in that case. The last reason was that to hold that such a
duty existed would not be arguing by analogy, would not be incrementalist as we must
now be, and that duty was then rejected.
In D v Berkshire County Council 8everyone has now agreed without recourse to the
Practice Statement (which enables the House of Lords to depart from its own previous
decisions, and thus erodes precedent to that limited extent) that Lord Browne-Wilkinson
was simply wrong in holding that the social workers could not owe a duty of care to the
child when considering taking the child into care. So where now the doctrine of
precedent which is supposed to be, according to Murphy, the principle? So where
therefore the principle in D v Berkshire, where the House says through Lord Bingham
and Lord Nicholls, the majority and the minority both agreeing about this, that in the light
of development since X it could no longer said that X was right. But it hasn’t been
overruled and wasn’t in fact overruled in D v Berkshire, it was simply thrown in the bin. I
think that D is quite right in this regard and X v. Bedfordshire is and always has been
wrong in this regard, but it is hard to see what developments have occurred in the
relatively short time which has elapsed since X v. Bedfordshire which justify any
8
[2005] UKHL 23
suggestion that it might have been right at the time but has now been overtaken by
events. That is a remarkable approach to what might be thought of as the principle in an
incrementalist system. It might give us some indication that possibly there has been if
not a collapse, an erosion of what we might have thought of as principle.
There certainly is a perception that principle has collapsed. We know that from the
Government who are introducing the Compensation Bill9, which is designed to enact into
legislation a decision of Lord Hoffmann with which everyone agreed, in the case of
Tomlinson10. This was probably a case that would have been decided as a no duty case if
it hadn’t been based on a statutory duty, the “Occupiers’ Liability Act” duty. Because of
the Occupiers Liability Act there was a duty, so it was considered at the breach level,
probably too late to get rid of the concept of a duty of care. The government have been so
panicked by recent developments in the House of Lords that they are worried that this
decision, which they favour, might disappear unless they put it into statutory form as
quickly as possible. So that’s what they are trying to do in the Bill: to make the House of
Lords stick to its guns.
Now the Government, of course, aren’t always right about everything, but we are perhaps
entitled to pray in aid the fact that there are some bats loose in the belfry, caused perhaps
by the recent developments on which we rely. So we say that there are some
extraordinary developments in progress in the law of tort. Whether or not you think they
are good or bad is irrelevant in one sense. They certainly represent a wholly new
approach to decision making in this area which you can call, if you wish, the collapse of
principle.
Mr Mansfield – Let’s be blunt. The proposer’s case is based on failure to understand the
role of the law of tort and the judicial process in an evolving common law. Let me start
with Baroness Hale, one of the majority in Greg v Scott, the most recent of the cases to
which we’ve all been referred. She says: “Well-settled principles may be developed or
9
Now the Compensation Act 2006 having received the Royal Assent on 25 th July 2006.
[UKHL] 2003 47
10
modified to meet new situations and new problems: the decisions in Fairchild …and
Chester are good examples. But those two cases were dealing with particular problems
which could be remedies without altering the principles applicable to the great majority
of personal injury cases which give rise to no real injustice or practical problem.” A little
later she continued: “Tort law is there to compensate those who have been wronged.
Some wrongs are actionable, whether or not the claimant has been damaged. But
damage is the gist of negligence”; damage caused by wrongdoing, in other words. That
is the beginning and the end. So there was no loss in principle there.
What is the process by which the judges get to their conclusion? First they identify the
principles formulated in the authorities, but new situations come along. In a new
situation the courts refine the principles to adapt to the new case. Their guide, called
rudely by the proposers’, “policy”, is in fact judgment, value judgment. That’s why we
have judges. If established principle produces an inappropriate answer, the courts must
develop it. We detest formulaic answers. We are not dealing with theological doctrine
but the real world and the real world moves on. We have an orderly evolution which
reflects social conditions and the scientific knowledge of the day, but there are genuine
difficulties when competing principles or policies meet; judgments then have to be made.
That does not mean that principle has collapsed.
The process can be simply demonstrated. I am going to focus on five important
decisions, all address causation: McGee, Wilshire, Fairchild, Chester and Gregg.
Chester, I know, is a sore point with my learned friend Mr Spencer. In McGee, 1973, the
House correctly stated that what constitutes causation is a question of law. The issue then
is - are the legal criteria met? This was confirmed by our learned Chairman and others in
Fairchild.
What were the facts in McGee? Well, the only potential wrongdoer, the employer, had
breached his duty to protect the claimant from the very damage which occurred. The
wrong doing had materially increased that risk. There was only one possible agency for
the damage, namely the dust, but it could not be said whether this caused the damage
before or after the breach of duty. The House of Lords adhered strictly to the principle
that generally in a personal injury action the claimant must discharge the burden of
showing that the breach complained of caused, or materially contributed to, the damage
complained of. In other words, but for the breach he would not have suffered the
damage. But to meet the justice of the case, it treated a material increase of risk in that
factual situation as equivalent to a material contribution. See Lords Bingham and our
learned Chairman, Lord Hoffman, the basic principle remained: damage caused by
breach.
In Wilsher, 1988, Lord Bridge concluded that McGee had affirmed the principle that the
onus of proving causation lies on the pursuer or plaintiff. The plaintiff had failed to
prove this, and the appeal was allowed. Lord Justice Latham, with us today, was Leading
Counsel for the plaintiff; he went home a sad man.
In the third case, Fairchild, 2002, there were breaches by more than one tortfeasor, only
one of whom could have been responsible. The damage was fairly within the scope from
which they owed a duty to protect the claimant, but scientific knowledge did not permit
identification of the guilty defendant. Policy and justice, it was held, demanded that each
be held fully liable. Let me begin with Lord Bingham. “The crucial issue on appeal is
whether in the special circumstances of such a case, principle, authority or policy
requires or justifies a modified approach to proof of causation in this case.” Later, he
said “in the generality of personal injury actions the claimant is required to discharge the
burden of showing the breach of which he complains caused the damage for which he
claims and to do so by showing that but for the breach he would not have suffered
damage.” No departure from principle there. “The issue” (he said) “in these appeals is
whether in special circumstances such as those in these cases there should be any
variation or relaxation”.
Next we come to Lord Nichols in the same case. He said: “To be acceptable the law
must be coherent. It must be principled … When a decision departs from principles
normally applied, the basis for doing so must be rational and justifiable.” That is the
value judgment.
Still in Fairchild, our learned Chairman, Lord Hoffmann, said “I shall first consider the
question in principle. It is axiomatic that the law will not impose liability to pay
compensation for damage unless there is a relevant causal connection between the
damage and the defendant’s tort, breach of contract or statutory duty.” And a little later,
“the question of fact is whether the causal requirements which the law lays down for that
particular liability are satisfied. But those requirements exist by virtue of rules of law.
This involves deciding what in the circumstances of the particular case the law’s
requirements are.” Finally, he added “the causal requirements for liability often vary,
sometimes quite subtly from case to case.”
So principle was throughout the guiding criteria.
A for policy, Lord Bingham said: “The present appeal raises an obvious and
inescapable clash of policy considerations.” Lord Nicholls too added: “This balancing
exercise involves a value judgment. This is not at variance with basic principles in this
area of law. The extent to which the law requires a defendant to assume responsibility
for loss following upon his wrongful conduct always involves a value judgment.”
And so to Chester, blessed Chester, decided in 2005. We do well to remember the facts
as found by the trial judge. They are often overlooked by those who don’t like the
decision. They are to be found at paragraph 96 of Lord Walker of Gestlingthorpe’s
judgment. He pointed out that the judge at trial had said, “…I think it improbable that
any surgery she might have eventually agreed to undergo would have been identical in
circumstances including nature of surgery, procedure and surgeon to the operation she
actually underwent on 21st November 1994”. So the trial judge had not found she would
have gone through or might have gone through exactly the same process. He found
expressly that that was improbable.
All the speeches recognised that by applying the conventional approach Miss Chester
would fail. The question then was policy. Should the legal elements to establish
causation be modified to meet an unusual situation? Thus Lord Bingham, in his
dissenting speech said, “It is now, I think, generally accepted that the 'but for' test does
not provide a comprehensive or exclusive test of causation in the law of tort. Sometimes,
if rarely, it yields too restrictive an answer as in Fairchild. More often, applied simply
and mechanically, it gives too expansive an answer.”
So there was no slavish adoption of formulae there. But equally there was no departure
from the general principle, namely, damage caused by a wrong doing.
The question is what is sufficient to establish causation. As Lord Steyn for the majority
in the same case said very frankly, “That such problems do not necessarily have a single
right answer is illustrated by the judgments of the Australian High Court in Chappel v
Hart.”
So we, who oppose the motion, say that to talk of principle in the abstract is hopeless.
Each Law Lord in Chester went on to make his own value judgment. The departure from
the general criteria for establishing causation was made in exceptional circumstances to
reflect the modern view that bodily integrity gives greater weight to the need to inform
the patient. Controversy does not mean that principle is abandoned. It is the product of
changing world and differing views.
Finally, we come to Gregg. Lord Nicholls (in the minority) said: “This appeal raises a
question which has divided courts and commentators throughout the common law world.
The division derives essentially from different perceptions of what constitutes injustice in
a common form type of medical negligence case.” Lord Hoffmann, one might call it Lord
Hoffmann’s revenge, finding himself in the majority for the defendant, said “The narrow
terms of the exception made to this principle in Fairchild’s case only serves to emphasise
the strength of the rule.”
So we have two different value judgments, the principle is undamaged, namely:
causation, wrong doing and breach, altogether.
To conclude, we come full circle to the words of Baroness Hale with which I opened. In
essence, a new situation may require adaptation and development of principles. This is
not a theological debate. Principles have not collapsed, principles rule, OK.
Speeches from the floor will be limited to five minutes.
Mr Jackson – Mr Chairman, Andrew Edis began by citing Brutus. That was topical. It
is almost 2050 years ago to the day since Brutus and his colleagues murdered Caesar. If
they had not acted as they did, Augustus may well not have become Emperor. There, Mr
Chairman, is a causation point which might bear consideration in the light of the
reasoning of your Lordship’s House in Chester v Asfar. May I now turn to what each of
the two teams has achieved in this debate. The proposers have demonstrated that in
several recent cases the outcome has been driven by a judicial feeling of what was right
rather than any black letter statements of principle. The opposing speakers have
demonstrated that there never was a golden age when pure principle held sway in law of
negligence. The reality is that legal principles shift and change over time. They always
have done.
The weight which any particular principle carries varies from one decade to the next as
social conditions change, and as Professor Dworkin cited by some of the speakers has
demonstrated. The legal principles which exist at the present time in the law of tort and
elsewhere are derived retrospectively from cases and in particular from recent cases.
Those principles are not immutable. They will continue to change. In my view, Mr
Chairman, the opposing speakers have successfully defeated this motion.
Ms Hoyano – Thank you Mr Chairman. Ms Gumbel QC provided us with a statement
from Sir Thomas Bingham, of the Court of Appeal, that the public policy consideration
that has the first claim on the loyalty of the law is that wrongs should be remedied.
Now that is question because the whole issue is how does tort law actually construct
wrongs? Mr Spencer QC rightly reminded us that we are talking about not just wrongs
but rights, and that both parties in potential tort cases, potential victims and potential
tortfeasors, have rights. One of those rights is to be advised by counsel as to what the law
is.
For my sins, in Oxford I have to deliver a series of lectures every year entitled ‘Pure
Economic Loss in the Context of Professional Negligence’, and my last lecture is actually
entitled ‘The Search for Principle, Fruitless? or a Fruit Salad?’ I must confess to using a
cartoon of a judge wearing a chef’s hat on top of his wig and an apron, mixing a Judicial
Fruit Salad. He’s got two recipe books in front of him, one saying two-stage test and the
other one saying three-stage test. Around him he has baskets of fruit variously labelled as
foreseeability, proximity, policy, fairness, justice, reasonableness, assumption of
responsibility, incrementalism, and corrective justice, and he has in his hands a
vinaigrette bottle which is labelled 'distributive justice'.
I was intrigued to see that there were two things that were not discussed this evening.
One was the test for the duty of care, the other, corrective justice. Being a Canadian tort
lawyer in the UK, I still see merit in the Anns two-stage test for duty of care . Now you
may laugh, but it is still used by the Supreme Court of Canada, and there has not been an
explosion of tort liability in Canada, and I can tell you from personal experience that
insurance premiums are much, much lower there.
The point is, stage two of Anns recognises that principle must embrace pragmatism,
which is what Miss Rodway reminded us. But it does so in a much more nuanced way
because it doesn’t ask the question "is it fair, just and reasonable to impose a duty of
care"? Rather it asks what policy considerations should negative or limit: the scope of the
duty; the scope of the class to whom that duty is, or may be, owed; or the range of
damages for which that duty may give rise to liability. Under the Caparo three stage test
the duty of care answer tends to be 'all or nothing', I would suggest that this has
contributed to the collapse of principle in English law. I think that the opposers of the
motion have won the day, in being able to point to specific decisions like McFarlane to
say it exemplifies a collapse of principle. Having recognised that the conception of a
baby was a personal injury, how can it be said that the financial costs which were entirely
foreseeable, of feeding and clothing that baby and educating her, which in many cases
provide the motivation for parents seeking sterilisation, cannot be damage consequential
on that personal injury? So there are some cases which I think clearly support the
position for the opposers.
However in conclusion, I am a lot happier now than I was a year ago about the state of
tort law and specifically negligence law. I think that the House of Lords has pulled back
from the brink of a precipice of the collapse of negligence law, and I can give three
examples in which they have unravelled blanket immunity from tort liability. Arthur S
Hill unravelled blanket immunity for counsel. AD v East Berkshire unravelled the
blanket of immunity for social workers when they make decisions as to whether a child is
at risk and whether to apply for a care order. . And Brookes v the Metropolitan Police I
would suggest has diagnosed Hill v Chief Constable of West Yorkshire as having terminal
cancer, and will be departed from when the right case arises. I would suggest that the
result is that all professionals are within the reach of tort law -- except judges! But what
is significant is that judges now have to justify their departures from principles and that
makes all the difference. I would suggest that the best thing would be for negligence law
to return to Anns. And let’s get rid of all the fruit bowls.
Mr Oliphant – There’s been no collapse of principle in the tort of negligence. All we’ve
seen in recent years is what’s always been at the essence of negligence in common law –
the dynamic interplay of principle and policy. To that extent I am with Miss Rodway,
without perhaps subscribing to the optimistic view that she expressed about some of the
decisions she talked about. To me the common law works best when legal rules undergo
a continuous process of evaluation and re-evaluation in the light of changing social
circumstances, when principle is mediated by policy. The common law is worst when
either of these elements dominates the other. So when principle holds sway the law
ossifies, hardens, looses its flexibility to adapt to changing social circumstances – and of
the cases discussed tonight it’s here that I’d place the nervous shock cases, taking a more
jaundiced view of these cases than Miss Rodway. The subtle interplay between principle
and policy that characterised Lord Wilberforce’s opinion in the McLoughlin case was lost
in subsequent decisions of the Law Lords, and the world was frozen in a position at
which it had by chance arrived. “Thus far and no further,” said Lord Stein in the White
decision, in a disappointing abnegation of judicial responsibility.
Conversely when policy over-reaches itself we call into question our commitment to the
rule of law. Consistency and certainty are indeed jeopardised, as Mr Spencer argues, and
the law inappropriately assumes a legislative role. In the case law these dangers are
starkly apparent in the modern law of negligence, particularly at the second stage of the
Anns test, and the test of fairness, justice and reasonableness under the third stage of the
Caparo principles. These decisions gave the green light to the judicial consideration – on
an ad hoc, even haphazard basis – of an infinite number of ill-defined, perhaps even illconceived, policy considerations, plucked as if from thin air and accorded weight
according to what appears as judicial whimsy rather than any reliable evidence. And
these pitfalls have been fully documented by the proposers of the motion tonight. It will
go too far to say that these developments represent the collapse of principle in the law of
negligence. Mr Edis said that one cannot say that, because there is a line of principled
cases – that therefore there has been no collapse of principle – but one cannot confirm the
contrary either. A line of un-principled cases does not necessarily demonstrate there has
been a collapse of principle. So I would evoke the memory of Oliver Wendell Homes in
The Common Law, and adapt the phrase with which Mr Davidson began: the life of the
law is both logic and experience, and I therefore find against this motion tonight.
Mr Bagshaw – Mr Chairman, unlike one of the previous judges I believe that there
probably was a golden age of principle and it took place sometime in the 18 months in
between the decision of the House of Lords in Junior Books v Veitchi and the subsequent
decision in the Aliakmon. But it strikes me that the common law is naturally always in a
state of dynamic equilibrium between law expressed in abstract general form and law
tailored to the specific context; between law that draws its force from what was accepted
as obviously right by the previous generation and law that could be best for tomorrow’s
community. It also strikes me that this is a dynamic cyclical process that sees the law
oscillate between these two positions. And it is my opinion that this is what we’ve been
seeing rather than anything properly termed a ‘collapse’.
Mr Spencer bought up a very serious point when he raised the question of how far it is
appropriate and possible for judges to take on the role of judging matters such as what
law would be best for tomorrow’s community. However the answer that he sought, that
it was not an appropriate judicial role but one to be left to the legislature, was an answer
that is only attractive if one has a very idealised and optimistic view as to what
legislatures are likely to do. Legislatures may be accountable for what law they do pass
but it is not clear, at least in this country, that they are accountable for the law that they
don’t pass.
It’s not clear that if the judiciary was not involved in updating the common law to meet
new challenges that the legislature would really step in to take on that role. Even if the
legislature did take an interest in tort law, it’s not clear that the result would be better law
for tomorrow’s community. If one looks at an example such as the legislative
amendments to the common law made in New South Wales and various other parts of
Australia, one sees law that is not more in line with general abstract principle but far less
in line with idealised principle, far less transparent, far more based on the expediencies
and temporary political gains of influential groups. So it strikes me that the judiciary can
appropriately take on a role of amending the common law in line with addressing a
balance between what was accepted as obviously right by a previous generation, and
what would be best for tomorrow’s community. But then in doing so, judicial reformers
must be subject to various obligations: obligations of transparency, obligations to pay
attention to clarity, to predictability.
It is my opinion that some of the decisions that have been criticised as out of line with
principle, albeit unexpected, show careful attention to the need to be narrow, to be
cautious, to confine decisions, and to be transparent about what’s influencing them.
Those decisions better reflect the principles that the common law is based on, rather than
the era of what a member of the audience has referred to of the era of ‘why nottery and
let it all hang out’ that the standard-bearers of negligence law’s supposed ‘golden
moment of principle’ were part of.
Mr Chairman I would cast my vote against the motion.
Mr Stevens - This is a big question so I will try to give a big answer. Say we started
with a blank sheet of paper and we wanted to divide up the law of tort in a rational way.
What would it look like? Say you went back to the 19th Century, we’ve just had the
forms of action abolished and we want, as would a textbook writer, to try and work out
what would be a sensible way of dividing up our law of tort. What would you do?
You could try and divide up your book or your subject according to particular contexts.
So you could have chapters on occupiers, horses, fires and animals and that sort of thing.
But the trouble with that, of course, is you get terrible overlaps. It would also mean that
you would end up not treating like cases alike. So dividing up the law according to
context doesn’t look terribly sensible. Alternatively you could try and divide up the law
according to the nature of the right which has been infringed. You could talk about bodily
safety, property, and privacy and so on and you could divide up your law like that. A
third way, which also looks quite plausible, is you could try and divide up the law
according to the degree of fault which has to be shown before a claim can be brought. So
you could say we’ll have a chapter on dishonesty, a chapter on carelessness, a chapter on
strict liability and so on. The worst possible approach, of course, would be to try and
adopt all three of those approaches at one and the same time. To have the contextual
categories over here, then your rights based categories and a few fault based categories as
well.
That would be crazy wouldn’t it? Well we fast forward to the 21st Century and we look
at the Chapter headings in Clark & Lindsell or McBride & Bagshaw or Oliphant on torts
and what do we see? We find that this worst approach has been adopted. We have
contextual approaches, such as the law concerning occupiers or products. We have rights
based approaches so we have trespass to the person, trespass to goods, trespass to land
and so on. And we also have this one uber-tort, the tort of negligence, which cuts across
all of the others. Well my view is that this is a very large mistake.
Salmond was mentioned. Salmond until his dying day denied that there was such a thing
as the “tort of negligence”. In his book he never had a chapter on the “tort of
negligence”. Salmond said there is liability for negligence and that’s all there is. There
is no such thing as unified a “tort of negligence” and there never was.
What is it that holds “negligence” together? What is it that makes this subject, this tort,
different from other heads of liability? What is it which makes it coherent? Well as far as
I can see the only possible thing which holds it together is the degree of fault involved,
hence the name negligence. Well is that true? Does that distinguish it from all the other
sorts of wrongs we have in our law? Is it true to say that all of the claims for negligence
are within the tort of negligence? Obviously they are not. If I carelessly block the
highway that is not part of the tort of negligence, it’s part of the tort of public nuisance.
If I carelessly create a smell so that you cannot sleep in your bed at night, that would be
private nuisance not negligence.
Is it true to say that the tort of negligence is unified by the same degree fault? Is it, as it
were, the single standard which applies throughout this tort? Well again that’s nonsense.
If I am admitted to hospital and I am killed by a super bug which is there because of the
carelessness of an independent contractor, the hospital will be liable for the carelessness
of the independent contractor. Why? Because the duty assumed by the hospital is a duty
that care will be taken of me. It is not a duty to take care but a duty that care will be
taken i.e. it is a different standard of duty to that which is applicable in other areas of the
“tort of negligence.”
So the tort of negligence doesn’t even have the coherence that it is the same uniform
standard of fault applied across the board. It doesn’t seem to me to make any rational
sense. Salmond was right all along.
I think at the end of the day you’ve got to ask yourselves the question: what do you think
the law of tort is all about? It seems to me that between these two halves of the theatre
we’ve had two views. One view of the law of tort is that what we should have is a
system which says whenever somebody is at fault for causing somebody else loss, they
ought to pay for it unless you can come up with some good policy reason why not.
That’s one model. Roughly speaking that’s what the French do. Now luckily for us we
don’t live in France. The common law of torts is that we have primary rights and that the
law of torts is concerned with the secondary obligations generated by the infringement of
primary rights. That’s what the law of torts is all about.
Now if you think of the law in terms of the “tort of negligence” you tend to think that the
first model is the law we have. That is wrong. Almost the worst case there has been,
which led us to think in these terms, was of course Anns v Merton. It was the archetypal
case of such ‘why nottery’. Fortunately for us Anns v Merton is dead and gone. The final
nail in the coffin was put in by Stovin v Wise. It was a damn close run thing, but
fortunately the forces of righteousness won.
[Questions and comments from the floor]
Chairman - The motion here before the house is that the house has seen the collapse of
principle in the law of negligence. Those that are in favour of the measure will say I,
those that are against will say no. Those in favour? (Aye). Those against (No). The Nos
have it.