No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 02 January 2018
What is negligence? Our answers to this are frequently misleading, because we turn all our attention on to what doctrine says rather than asking how it is actually used. So we routinely talk of personal liability, even though we know very well that individuals (as opposed to organisations, typically insurers) do not pay damages. We think of negligence doctrine as if it were applied automatically and without bias, when in fact the complex insurance arrangements involved have rather decided biases. And we treat the development of the law purely as a matter of evolving judicial thought, when in fact legislatures and insurers also routinely modify the system in response to new realities. The result is that fundamental change has occurred under the very noses of theorists, who still tell us that negligence holds individual defendants responsible for their wrongdoing (it does not) or that the economic effect of tort rules is to deter defendants (there is not much reason to think this is so). Why are the leading theoretical justifications of negligence – corrective justice, responsibility theory and economic theory – so dependent on myths? Is it because the myths do not matter? Or is it that, in fact, we have no good justification for the system as it works in practice at all – we have no good theory of why negligence makes sense because it does not, in reality, make sense?
Many thanks to my colleague Patrick O'Callaghan, who commented on an earlier draft. An earlier version was presented at the IVR 2015 Conference at Belfast on 23 October 2015; many thanks to Alison Clarke, Niamh Connolly, Deirdre Ni Fhloinn and others who made useful comments. Many thanks also to the editors and reviewers at Legal Studies. All comments and criticisms are very welcome.
1. SG, Gilles ‘The judgment-proof society’ (2006) 63 Wash & Lee L Rev 603 at 715.Google Scholar
2. It seems to me that most, though not all, of the observations here are also applicable to Australian and Canadian jurisdictions; though I am open to correction by anyone who actually knows about those systems in depth. New Zealand is well known to tort lawyers as a special case, and is mentioned throughout. Some observations also apply to many of the states of the US, though to a lesser extent: note, in particular, the continued existence of ‘blood money’ lawyers who do try to recover from personal defendants: Baker, T ‘Blood money, new money, and the moral economy of tort law in action’ (2001) 35 L & Soc'y Rev 275 – though, as Baker emphasises, their existence is more important symbolically than otherwise, and ‘[r]eal money from real people accounts for a very small fraction of tort settlement dollars’ (at 277).CrossRefGoogle Scholar
3. For a broader account of widespread misconceptions in this area, see Lewis, R and Morris, A ‘Challenging views of tort’ [2013] J Pers Inj L 69 (part 1) and 137 (part 2).Google Scholar
4. See further below, text at nn 23–25.
5. Lewis and Morris, above n 3, Part 1 at 73–80.
6. On the settlement process generally, see Harris, D, Campbell, D and Halson, R Remedies in Contract and Tort (Cambridge: Cambridge University Press, 2nd edn, 2005) ch 24. For an interesting case-study,Google Scholar see Halliday, S, Ilan, J and Scott, C ‘Street-level tort law: the bureaucratic justice of liability decision-making’ (2012) 75 Mod L Rev 347. For reflections on the difference between abstract application of doctrine and ‘bargaining in the law's shadow’,CrossRefGoogle Scholar see Cane, P Responsibility in Law and Morality (Oxford: Hart Publishing, 2002) ch 7.Google Scholar
7. Harris, D ‘Claims for damages: negotiating, settling or abandoning’ in Harris, D and others (eds) Compensation and Support for Illness and Injury (Oxford: Clarendon Press, 1984) pp 79, 132–134.Google Scholar
8. Cf Hershovitz, S ‘Harry Potter and the trouble with tort theory’ (2010) 63 Stan L Rev 67.Google Scholar
9. Especially Fiss, O ‘Against settlement’ (1984) 93 Yale L J 1073.CrossRefGoogle Scholar
10. Bilsky, L and Fisher, T ‘Rethinking settlement’ (2014) 15 Theor Inq L 77.Google Scholar
11. Prescott, J and Spier, K ‘A comprehensive theory of civil settlement’ (2016) 91 NYU L Rev 59.Google Scholar
12. A key text here is Arvind, TT and Steele, J (eds) Tort Law and the Legislature (Oxford: Hart Publishing, 2013).Google Scholar
13. Note the related argument (not pursued further here) that other torts too are more ‘public’ than is often supposed: eg Lee, M ‘The public interest in private nuisance: collectivities and communities in tort’ (2015) 74 Camb L J 329;CrossRefGoogle Scholar Priel, D ‘A public role for the intentional torts’ (2010) 22 King's L J 1.Google Scholar
14. Note especially the introduction of compulsory road insurance (Road Traffic Act 1930 (England/Wales and Scotland); Motor Vehicles and Road Traffic Act 1930 (Northern Ireland); Road Traffic Act 1933 (Ireland)), and the establishment of the Motor Insurers’ Bureaus (UK 1946, Ireland 1955).
15. Workmen's Compensation Act 1897 (UK).
16. A proposal for a no-fault scheme for road traffic injuries, which would have greatly reduced the importance of negligence liability in that area, emanated from the Pearson Commission (Report of the Royal Commission on Civil Liability and Compensation for Personal Injury Cmnd 7054, 1978), but was not implemented. For the public debates over the Commission's recommendations see Bartrip, P ‘No-fault compensation on the roads in 20th century Britain’ (2010) 69 Camb L J 263 at 274–283.CrossRefGoogle Scholar
17. On that question, see esp Lewis, R ‘Compensation culture reviewed: incentives to claims and damages levels’ (2014) 4 J Pers Inj L 209.Google Scholar
18. Beever, A Rediscovering the Law of Negligence (Oxford: Hart Publishing, 2007) pp 1–19.Google Scholar
19. McBride, N ‘Rights and the basis of tort law’ in Nolan, D and Robertson, A (eds) Rights and Private Law (Oxford: Hart Publishing, 2012) pp 331, 331–334, 359–360. In both cases, it is unclear whether this is meant as serious legal history – there is no engagement with actual historical accounts of the periods referred to.Google Scholar
20. See eg P Rawlings ‘“Without feeling and without remorse”? making sense of employers’ liability and insurance in the nineteenth century’ Queen Mary School of Law Legal Studies Research Paper No 199/2015, available at http://ssrn.com/abstract=2608917 (accessed 11 May 2016); Hedley, S ‘Tort and personal injuries, 1850 to the present’ in Arvind, TT and Steele, J (eds) Tort Law and the Legislature (Oxford: Hart Publishing, 2013) p 235;Google Scholar Cornish, W et al Oxford History of the Laws of England volume XII (Oxford: Oxford University Press, 2010) pp 903–1032.Google Scholar
21. Enoch, D ‘Tort liability and taking responsibility’ in Oberdiek, J (ed) Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014) p 249 at p 251. See further below, text at n 59.Google Scholar
22. Merkin, R and Steele, J Insurance and the Law of Obligations (Oxford: Oxford University Press, 2013) p 9.CrossRefGoogle Scholar
23. See Pearson Commission, above n 16, vol 2, para 509. This statistic is some decades old and is to that extent unreliable, though no serious observer imagines that it would be lower today. For the wider picture, see Lewis, R ‘Insurers and personal injury litigation: acknowledging “the elephant in the living room”’ [2005] J Pers Inj L 1;Google Scholar Lewis, R ‘Insurance and the tort system’ (2005) 25 Legal Stud 85.CrossRefGoogle Scholar
24. The number is tiny in the context of the UK system. Claims in uninsured driver cases are met by the Motor Insurers Bureau (MIB); in 2013, perhaps 6% of all road accident claims. The MIB settled 48,327 claims in 2013; the CRU were aware of roughly 800,000 claims that year. In that same year, the MIB recovered £9.1 million by subrogated claims against the negligent drivers (roughly 4% of their net payments to claimants). So a crude estimate is that 6% of 4% of negligent drivers (ie about 0.25%) are made to pay personally. Figures are from http://www.mib.org.uk (accessed 11 May 2016) and https://www.gov.uk/government/collections/cru (accessed 11 May 2016).
25. The liability was preserved by the House of Lords in Lister v Romford Ice and Cold Storage Co [1957] AC 555; while this is controversial (see discussion in Merkin and Steele, above n 22, pp 130–135), dicta in Woodland v Essex County Council [2013] UKSC 66 suggest this is still the law. Insurers have always insisted on their right to invoke the liability in cases of collusion or wilful misconduct. For an example of a claim relying on Lister, see Bell v Alliance Medical and others [2015] ScotCS CSOH 34 (though the target of the claim was in fact insured, see para [109]). On the employer's indemnity, see generally Giliker, P Vicarious Liability in Tort (Cambridge: Cambridge University Press, 2010) pp 30–39.CrossRefGoogle Scholar
26. See discussion in Merry, A and McCall Smith, A Errors, Medicine and the Law (Cambridge: Cambridge University Press, 2001) ch 3.CrossRefGoogle ScholarPubMed
27. Cane, P Atiyah’s Accident Compensation and the Law (Cambridge: Cambridge University Press, 8th edn, 2013) p 427. He adds that ‘[t]here is no hard evidence that fear of the loss of a no-claims bonus or of having to pay the excess under a policy has any significant effect on the incidence of accidents’.Google Scholar
28. Summerton, N ‘Positive and negative factors in defensive medicine: a questionnaire study of general practitioners’ (1995) 310 (no 6971) BMJ 27.CrossRefGoogle ScholarPubMed
29. ‘Negative defensive practice … may be taken to include such things as prescription of unnecessary drugs; increases in follow up, referral rate, and diagnostic testing, as well as avoidance of certain treatments and the removal of patients from the practitioner's list. In contrast, positive defensive medical practices are defined as quality improvements such as increased screening, development of audit or consumer satisfaction activities, and more detailed patient explanations or detailed note taking’: ibid, at 27, fn omitted.
30. Ortashi, O et al ‘The practice of defensive medicine among hospital doctors in the UK’ [2013] 14 BMC Med Ethics 42.CrossRefGoogle Scholar For further discussion, see N Smellie ‘Does the phenomenon of defensive medicine truly exist in practice, and how desirable would a healthcare system built on this premise be for the United Kingdom?’ (2014), available at http://tinyurl.com/z3bqqc5 (accessed 11 May 2016).
31. Bolitho v City and Hackney Health Authority [1992] AC 232; Roche v Peilow [1985] IR 232. Both rulings allow for an exception if the practice is glaringly flawed, though they use rather different language in describing this.
32. For discussion of the interaction between damages (paid by insurers) and injury to the doctor's reputation (which is, of course, borne by the doctor), see Keren-Paz, T ‘Liability regimes, reputation loss, and defensive medicine’ (2010) 18(3) Med L Rev 363.CrossRefGoogle ScholarPubMed
33. Cane, above n 27, pp 420–435. The US material on these questions is voluminous; see especially Baker, T The Medical Malpractice Myth (Chicago: University of Chicago Press, 2005).CrossRefGoogle Scholar
34. For opposing viewpoints, see McBride, N ‘Duties of care – do they really exist?’ (2004) 24 Oxford J Legal Stud 417;CrossRefGoogle Scholar and Priel, D ‘Tort law for cynics’ (2014) 75 Mod L Rev 703.CrossRefGoogle Scholar
35. Allan Beever uses this phrase repeatedly in Rediscovering Negligence (above n 18) eg pp 197 and 268, though he does not claim originality for it.
36. For discussion, see Wagner, G ‘Tort, social security, and no-fault schemes: lessons from real-world experiments’ (2012) 23 Duke J Comp & Int'l L 1.Google Scholar For a survey across 12 jurisdictions, see Oliphant, K and Wagner, G (eds) Employers’ Liability and Workers’ Compensation (Berlin: de Gruyter, 2012).CrossRefGoogle Scholar
37. For example, under the Defective Products Directive, Council Directive 85/374/EEC of 25 July 1985.
38. For a review of literature comparing no-fault schemes with tort, see Trebilock, M and Veel, P-E ‘No-fault accident compensation systems’ in Arlen, J (ed) Research Handbook on the Economics of Torts (Cheltenham: Edward Elgar, 2013) p 588.Google Scholar
39. For the development of the scheme in its first few decades, see ‘Symposium: looking back at accident compensation: finding lessons for the future’ (2003) 34 VUW L Rev 189–467.
40. Cf Engstrom, N ‘Exit, adversarialism and the stubborn persistence of tort’ (2015) 6 J Tort L 75, available at http://ssrn.com/abstract=2579835 (accessed 11 May 2016).Google Scholar
41. See Engstrom, N ‘An alternative explanation for no-fault's “demise”’ (2012) 61 DePaul L Rev 303. Engstrom defines adversarial equilibrium as ‘a process by which distinct but parallel legal systems shed their excesses and patch their limits to become progressively more alike’; ibid, at 312Google Scholar. See also Gaskins, R ‘The fate of “no-fault” in America’ (2003) 34 VUW L Rev 213.Google Scholar
42. M’Alister (or Donoghue) v Stevenson [1932] AC 562.
43. Text assumes (as is probable) that a claim of this sort would today be covered by the defendant's insurance. For state recovery of benefits from personal injury damages in the UK, see Social Security (Recovery of Benefits) Act 1997, Road Traffic (NHS Charges) Act 1999 and Health and Social Care (Community Health and Standards) Act 2003 ss 150–169. For the Irish position, see Social Welfare and Pensions Act 2013 ss 13–14.
44. See eg L Alexander and K Ferzan ‘Confused culpability, contrived causation, and the collapse of tort theory’ in Oberdiek, above n 21, p 406.
45. For general discussion, see PS, Atiyah The Damages Lottery (Oxford: Hart Publishing, 1997) pp 33–38;Google Scholar Goldberg, J ‘Inexcusable wrongs’ (2015) 103 Calif L Rev 467;Google Scholar Ben-Shahar, O and Porat, A ‘Personalizing negligence law’ NYU L Rev, 2016, forthcoming, available at http://ssrn.com/abstract=2654458 (accessed 11 May 2016).Google Scholar
46. Calnan, A ‘The fault(s) in negligence law’ (2007) 25 Quinn L Rev 695;Google Scholar KS, Abraham ‘Strict liability in negligence’ (2012) 61 DePaul L Rev 271.Google Scholar
47. Though the studies here are admittedly old. See Cane, above n 27, pp 175–176.
48. On various versions of negligence as a moral standard, see H Hurd ‘The innocence of negligence’ (1 July 2014), available at http://ssrn.com/abstract=2612084 (accessed 11 May 2016).
49. Lewis, R and Morris, A ‘Challenging views of tort’ [2013] J Pers Inj L 69 at 75–76.Google Scholar
50. Nettleship v Weston [1971] 2 QB 691.
51. Wilsher v Essex Area Health Authority [1987] QB 730.
52. Dunnage v Randall [2015] EWCA Civ 673.
53. Whether this apparently unequal treatment of claimants and defendants can be defended doctrinally is a matter of dispute. Compare RW, Wright ‘Negligence in the courts: introduction and commentary’ (2002) 77 Chi-Kent L Rev 425 at 466–485 with A Dorfman ‘Negligence and accommodation: on taking others as they really are’ (27 December 2014), available at http://ssrn.com/abstract=2543262 (accessed 11 May 2016).Google Scholar
54. Merry, A and McCall, A Smith Errors, Medicine and the Law (Cambridge: Cambridge University Press, 2001) p 173.CrossRefGoogle Scholar See also Teichman, D ‘The hindsight bias and the law in hindsight’ in Zamir, E and Teichman, D (eds) Behavioral Economics and the Law (New York: Oxford University Press, 2014) p 355, esp pp 356–357.Google Scholar
55. For a philosophical argument that people generally are reluctant to conclude that major accidents occur without fault, see MR, Reiff ‘No such thing as an accident’ (2015) 28 Can J L & Juris 371.Google Scholar
56. For discussion, see eg J Gardner ‘What is tort for? Part 2. The place of distributive justice’ in Oberdiek, above n 21, p 335; and H Sheinman ‘Tort law and distributive justice’, ibid, p 354.
57. See eg Beever, above n 18.
58. See eg Cane, P The Anatomy of Tort Law (Oxford: Hart Publishing, 1997) esp chs 2 and 7.Google Scholar
59. Enoch, above n 21.
60. Ibid, at 266.
61. See eg L Radzick ‘Tort processes and relational repair’ in Oberdiek, above n 21, p 231; Hershovitz, above n 8, at 93–105.
62. S Lloyd-Bostock ‘Fault and liability for accidents: the accident victim's perspective’ in Harris and others, above n 7, pp 139, 160.
63. McBride, N and Bagshaw, R Tort Law (Harlow: Pearson Education, 2001) p 24.Google Scholar
64. See eg Stapleton, J ‘Tort, insurance and ideology’ (1995) 58 Mod L Rev 820, 828 n 24: ‘… it is as banal and misleading to say that the “function” or “purpose” of tort is compensation as it is to say that the “function” or “purpose” of a petrol station is to dispense petrol: the question of interest is who is entitled to have the benefit dispensed and why’.CrossRefGoogle Scholar
65. Especially relevant to the themes in this paper is James, Fleming Jr ‘An evaluation of the fault concept’ (1965) 32 Tenn L Rev 394.Google Scholar
66. On this shift of view, see esp Edward White, G Tort Law in America – An Intellectual History (New York: Oxford University Press, 1985) ch 7. For another perspective on these changes in theoretical vision,Google Scholar see JC, Goldberg ‘Twentieth-century tort theory’ (2003) 91 Geo L J 514.Google Scholar
67. In fact, James changed his mind over the question of the desirable future role of tort, though always against the backdrop of a proposed public insurance scheme. Compare his ‘Tort in midstream: its challenge to the judicial process’ (1958–1959) 8 Buff L Rev 315 Google Scholar with his ‘The future of negligence in accident law’ (1967) 53 Va L Rev 911.CrossRefGoogle Scholar
68. Beever, above n 18, p 191 fn, responding to Morgan, J ‘Tort, insurance and incoherence’ (2004) 67 Mod L Rev 384.CrossRefGoogle Scholar
69. On vicarious liability, see Beever, above n 18, pp 35–36; on insurance, ibid, eg pp 199–200. There is no significant discussion of corporate responsibility, or how it might differ from the responsibility of an ordinary individual.
70. Beever, above n 18, p 191 fn.
71. Similar points can be made in relation to the approach of Weinrib (in EJ, Weinrib The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)):Google Scholar see Cane, P Responsibility in Law and Morality (Oxford: Hart Publishing, 2002) pp 242–245.Google Scholar
72. For some of the issues, see Arlen, J and MacLeod, W ‘Beyond master–servant: a critique of vicarious liability’ in Stuart Madden, M (ed) Exploring Tort Law (New York: Cambridge University Press, 2005) p 111.CrossRefGoogle Scholar
73. See Cane, above n 27, pp 419–455; and studies referred to in Arlen, above n 38, p 178. This parallels the findings of Dewees Duff and Trebilock (DN, Dewees, Duff, D and Trebilcock, M Exploring the Domain of Accident Law: Taking the Facts Seriously (Oxford: Oxford University Press, 1996)) that evidence of deterrence by tort is patchy, dependent on context and quite inadequate to justify the existing tort system.Google Scholar
74. Below, text at n 94.
75. See eg Stapleton, above n 64.
76. See eg Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007) ch 14.CrossRefGoogle Scholar
77. See eg Cane, P ‘Tort law as regulation’ (2002) 31 Common L World Rev 305.Google Scholar
78. See eg P Goold ‘The analytic jurisprudence of the new private law’ New Private Law (blog) (10 June 2015), available at http://blogs.law.harvard.edu/nplblog/2015/06/10/the-analytic-jurisprudence-of-the-new-private-law-patrick-goold/(accessed 11 May 2016).
79. For discussion, see Cane, P ‘Taking disagreement seriously: legislatures and the reform of tort law’ (2005) 25 Oxford J Legal Stud 393.CrossRefGoogle Scholar
80. Stapleton, above n 64. For argument on this precise question, see also Morgan, above n 68; and Merkin, R ‘Tort, insurance and ideology: further thoughts’ (2012) 75 Mod L Rev 301.CrossRefGoogle Scholar
81. For general discussion, see Merkin and Steele, above n 22, ch 8.
82. Keren-Paz, T Torts, Egalitarianism and Distributive Justice (Aldershot: Ashgate, 2007) esp ch 3.Google Scholar
83. See eg Stevens, above n 76, p vii: ‘I have focused on English cases … However, the book would look much the same if I had primarily used the case law of any other common law jurisdiction’. For completeness, we must note that Stevens does not accept that there is a tort of negligence (ibid, pp 291–300), though the implications of that point for the argument of this paper are relatively slight.
84. See eg Weinrib, above n 71.
85. See eg Beever, above n 18, p 48: ‘our general understanding of corrective justice … has … changed little since Aristotle [though] our understanding of its best application is sure to vary with time’.
86. See esp Lucy, W ‘Method and fit: two problems for contemporary philosophies of tort law’ (2007) 52 McGill L J 605.Google Scholar
87. Many examples could be given. A particularly egregious one is the recent Oxford University Press Philosophical Foundations series. While these books are splendid contributions to current debates (and this paper would have been much the poorer if unable to refer to Oberdiek, above n 21), the claim that philosophy's contribution is foundational is not supported by argument, and indeed does not seem to be made seriously.
88. Balganesh, S and Parchomovsky, G ‘Structure and value in the common law’ (2015) 163 U Pa L Rev 1241.Google Scholar
89. Ibid. The quotation is from the abstract, available at http://ssrn.com/abstract=2494380 (accessed 11 May 2016).
90. See eg Morgan, above n 68, at 394.
91. See esp literature reviews in Arlen, above n 38, chs 7 and 9.
92. See eg SG, Gilles ‘The judgment-proof society’ (2006) 63 Wash & Lee L Rev 603 at 671–705, 714–715;Google Scholar RL West ‘Gatsby and tort’ (2015), available at http://ssrn.com/abstract=2645934 (accessed 11 May 2016).
93. On the gap left by negligence law's retreat from corrective justice, see RA Duff ‘Repairing harms and answering for wrongs’ in Oberdiek, above n 21, p 212, esp pp 225–230; HM Hurd ‘Finding no fault with negligence’, ibid, p 387.
94. For discussion, see RH, Kraackman ‘Vicarious and corporate civil liability’ in Faure, M (ed) Tort Law and Economics (Cheltenham: Edward Elgar, 2009) p 134.Google Scholar See also Halliday, S, Ilan, J and Scott, C ‘The public management of liability risks’ (2011) 31 Oxford J Legal Stud 527.CrossRefGoogle Scholar
95. For some of the issues, see Brodie, D Enterprise Liability and the Common Law (Cambridge: Cambridge University Press, 2010);CrossRefGoogle Scholar Ewing, B ‘The structure of tort law, revisited: the problem of corporate responsibility’ (2015) J Tort L (published online 4 July 2015), available at http://www.degruyter.com/view/j/jtl.ahead-of-print/jtl-2015-0015/jtl-2015-0015.xml (accessed 11 May 2016).CrossRefGoogle Scholar
96. Stapleton, above n 64, at 832. Stapleton was of course arguing that this development was undesirable.
97. Merkin, R and Steele, J ‘Policing tort and crime with the MIB: remedies, penalties and the duty to insure’ in Dyson, M (ed) Unravelling Tort and Crime (Cambridge: Cambridge University Press, 2014) p 22. For a more general picture of tort law as risk allocation, see Merkin and Steele, above n 22, esp chs 8–9.CrossRefGoogle Scholar
98. Keren-Paz, above n 82.
99. See eg Campbell, D ‘Interpersonal justice and actual choice as ways of determining personal injury law and policy’ (2015) 35 Legal Stud 430.CrossRefGoogle Scholar
100. Weinrib, above n 71, p 5.