A Theory of Tort Liability

Allan Beever

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509903191
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del risarcimento per fatto illecito

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.

Part I

Foundations

The following three chapters present the foundations of the theory examined in the remainder of this book. The first sets out the fundamental moral conception upon which this material is based. The second presents a general theory of tortious liability based on that conception. The final chapter in this part explores the form of liability found in tort law and its relation to the moral theory examined earlier.

1

Moral Foundations

This book is inspired by Immanuel Kant’s Rechtslehre. Its thesis is a reflection of the legal theory developed in that work. But the book is not a presentation of Kant’s theory of tort law. It could not be. As Kant had nothing to say about tort law, there is no such theory.¹ What, then, is the nature of this inspiration? The answer is that the Rechtslehre presents a framework for thinking about legal issues that can be applied to any legal subject. This scaffolding is erected in this chapter and utilised throughout the book. It is particularly useful in this context because the framework contrasts strongly with the dominant model from which tort law is today understood. It will be well to examine that now.

I. The Conventional View

One way to approach this model is to notice the manner in which the third Restatement of the Law of Tort is progressing. Note particularly the following titles of what we already have: Liability for Physical and Emotional Harm and Liability for Economic Harm (Tentative Drafts). Consider also the following from the former of these, the first passages to deal with liability. ‘An actor who intentionally causes physical harm is subject to liability for that harm.’² ‘An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm.’³ Impossible to miss here is the notion that tort law is fundamentally about responding to harm. Harm in this theory is never clearly defined, but the basic idea is plain. Tort law is the common law’s mechanism for dealing with loss.

In the Commonwealth, this view has been usefully summarised by Robert Stevens:

On this conception ‘the overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another’.^[4] Within liability for negligence ‘damage is the gist’,^[5] and where there is no recovery for negligently inflicted loss it needs justification. Under this model, the role of the ‘duty of care’ in liability for negligence is as a ‘control device,’ primarily concerned with the diverse reasons why a particular defendant has an immunity from being liable for carelessly causing loss. This conception of the law of torts I shall call the ‘loss model’.⁶

The debate over the loss model and its alternatives is alight in theoretical discussion of the law. It has raged over a natural battleground: whether the loss model provides a satisfactory understanding of the law. Unsurprisingly, the argument against the loss model is that it does not. In fact, the argument goes, the model provides so poor an analysis that it must routinely appeal to policy arguments in order to keep liability within sensible limits. The reason for this is clear. There is simply too much loss in the world for it always to attract liability. Thus, ‘control mechanisms’ must be introduced to keep liability in check.

As Stevens notes, this feature of the loss model is most obvious in the law of negligence. Thus, speaking from the perspective of the conventional view, Stephen Todd has noted that:

The duty requirement exists because the potential scope of negligence as a basis for legal liability is virtually unlimited. On its face ‘negligence’ looks only to the quality of the defendant’s conduct and not to factors such as the likely or possible number of plaintiffs, the likelihood that loss would be caused, the nature and extent of particular loss and the circumstances in which the loss came to be inflicted. Thus the courts have had to devise principles to delimit the boundaries of liability. To this end they have instituted a requirement in every case of foreseeability of damage to the person bringing the action, and have also taken account of these other factors in deciding whether, for reasons of policy, liability ought to be especially restricted or denied altogether. The language of duty provides the formula for expressing these conclusions of policy. It operates as a ‘control device’ or filter through which any particular claim must pass. It is apparent, then, that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not.⁷

The upshot of this is that the law tends to be analysed in the following way. First, one or more principles are identified. In the law of negligence, the fundamental principle is said to be that individuals are responsible for the losses caused by their negligent behaviour—the view witnessed in the third Restatement above. Second, an enormous raft of exceptions are listed to the principle, exceptions that are said to be justified on policy grounds—ie, grounds other than, and often inconsistent with, the general principle. This too is neatly captured by the summary of negligence in the Restatement: ‘An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable.’⁸ The unless clause is of considerable practical importance.

As a descriptive matter, the conventional view is of course impeccable.⁹ It is, after all, the conventional view, the view utilised by the vast majority of lawyers. But our focus is theoretical. And at that level, it is clear that the model is inadequate. An understanding that presents a principle with exceptions is faulty. An understanding that presents a principle with so vast a list of exceptions is no understanding at all. Imagine a chemist who maintained that all elements were metals, but then catalogued the 26 non-metals as exceptions.¹⁰ We would be right to conclude that this chemist did not understand what an element was. For just the same reason, we must conclude that the loss model cannot comprehend the law of tort. In fact, it is worse than this, because at least in many areas of the law, the exceptions are both more important and the potential cases that fit them far more numerous than the rule. That is more like a zoologist stating that all felidae are lions and then listing tigers, jaguars, leopards, cougars, cheetahs, lynxes, ocelots, domestic cats etc as exceptions. Here, we would rightly conclude that this zoologist did not know what felidae were and did not seem concerned to find out. If our conception of the law of negligence leads to the conclusion that ‘the potential scope of negligence as a basis for legal liability is virtually unlimited’¹¹ and we are thus forced to introduce a host of control mechanisms, then we need a new conception.

In the end, then, history itself is sufficient to reveal that the loss model is a failure. That model was invented in the belief that it would provide a utile starting point for developing a conceptually adequate understanding of the law of tort.¹² No objective observer could resist the conclusion that it has failed. The lists of exceptions to its general principles have grown well beyond breaking point. In fact, it is arguable that the reason it is not more widely appreciated that the conventional view has broken down is that lawyers have simply got used to dealing with the near-chaos that the view has created. That says a great deal for their resourcefulness, but not much for the law itself. And that is not the end of the matter. These are only the general problems with the conventional view. The case against the conventional view has really only begun. Other, more specific, problems are examined throughout this book. But these problems too manifest themselves in the same general way: they show that the conventional view cannot comfortably explain the working of the law in practice and so must continually have resort to policy-based exceptions. The unfortunate result is increasingly obscure and arbitrary legal decision making.

In the US, matters have taken a somewhat different turn. There, theorists have not been content with principles and lists of exceptions. On the contrary, a powerful theory has been developed that attempts to explain the principles and the apparent exceptions in a unified and theoretically satisfactory fashion. I refer, of course, to the school of thought known as law and economics.

This is certainly a view worthy of respect—a genuine theory that provides genuine analysis. The problem is that if it intends directly to explain the practice of the law of tort,¹³ then it fails because it is structurally inconsistent with structural features of that law. This argument has been pursued by others and so need not be examined here in detail.¹⁴ I give only the flavour of the argument by examining two examples.

Some torts demand that a defendant can be liable to a plaintiff only if he caused injury to that person. This is known as factual causation or cause-in-fact. On the face of it, this has nothing to do with economics. Thus, it has been claimed by law and economics scholars that ‘the idea of causation can largely be dispensed with in an economic analysis of torts’.¹⁵ This reveals the gulf between economic and legal analysis and the fact that, despite the claim that economics reveals the implicit logic of the common law, the logic of economics and the logic of law are very different.¹⁶

Similarly, some torts require the defendant to have intended harm to the plaintiff. Economic explanations can be attempted of this feature of the law, but they too seem to depart from the law itself. For instance, it might be claimed that the law is particularly concerned with intention because a defendant who intends to cause harm is more likely to bring that harm about than one acting merely carelessly. The problem is that it is easy to invent examples in which this is not the case. Imagine a man who wants to kill another who is in a hall of mirrors, where having the intention to shoot the desired victim virtually guarantees that he will miss. Here, the intention makes the man less likely to cause harm, but if he nevertheless shoots the plaintiff, the legal rules concerning intention will apply. Again, this suggests that the concerns of the law are not economic.

The point is not that the law is economically inefficient. It may be that it is highly efficient. Indeed, the law may mirror the outcomes called for by economics closely. If that is so, then economics will usefully describe the incentive structures produced by the law etc. The claim is not that economics cannot fruitfully be used to analyse the law. The point is that the reasons given in the law and by economics differ. Thus, even when economics and law argue for the same outcomes—as arguendo they may always do—the content of their arguments are very different. Hence, economics cannot explain or justify the law in the sense that it cannot support the reasons given in law for legal decisions.

It is important to stress that I do not mean to reject economics tout court, even in the quite narrow sphere in which I question it at all. Some years ago, I attended a seminar given by a prestigious American academic in Hamburg considering the economic analysis of the law. One of the German economists in the room asked the presenter why he had considered only economics that focused on material social cost and ignored the kind of economics that begins with the Kantian notion that the fundamental human entitlement is not to welfare, but to equal freedom. The presenter’s response was that this form of economics was not influential in the US. I do not doubt that the response was right, but these thoughts nevertheless raise the possibility that contemporary examples of law and economics scholarship fail directly to latch onto law, not because economics and law are analytically forever distinct, but because these examples of law and economics involve bad economics and the study of law is one of the ways in which this can be brought home.

Whatever the truth of that, it seems clear that US-style law and economics also takes its cue from the loss model. It holds that it is with loss or harm that tort law is most deeply concerned. Hence, we have the idea that the aim of the law of negligence is to find the lowest cost avoider and that it is deeply concerned with loss spreading. And most fundamentally, it is the commitment to the loss model that cannot be accepted, whatever particular form that commitment takes.

What could the relationship ...