Rediscovering the Law of Negligence

Allan Beever

• Publisher: Hart Publishing
• Year: 2007
• ISBN:
  9781847316998
• Edition: 1
• Topic: Law
• Subtopic: Tort Law
• Index: Law

Rediscovering the Law of Negligence offers a systematic and theoretical exploration of the law of negligence. Its aim is to re-establish the notion that thinking about the law ought to and can proceed on the basis of principle. As such, it is opposed to the prevalent modern view that the various aspects of the law are and must be based on individual policy decisions and that the task of the judge or commentator is to shape the law in terms of the relevant policies as she sees them. The book, then, is an attempt to re-establish the law of negligence as a body of law rather than as a branch of politics.
The book argues that the law of negligence is best understood in terms of a relatively small set of principles enunciated in a small number of leading cases. It further argues that these principles are themselves best seen in terms of an aspect of morality called corrective justice which, when applied to the most important aspects of the law of negligence reveals that the law - even as it now exists - possesses a far greater degree of conceptual unity than is commonly thought. Using this method the author is able to examine familiar aspects of the law of negligence such as the standard of care; the duty of care; remoteness; misfeasance; economic loss; negligent misrepresentation; the liability of public bodies; wrongful conception; nervous shock; the defences of contributory negligence, voluntary assumption of risk, and illegality; causation; and issues concerning proof, to show that when the principles are applied and the idea of corrective justice is properly understood then the law appears both systematic and conceptually satisfactory. The upshot is a rediscovery of the law of negligence.

1

Introduction

I. THE DISINTEGRATION OF THE MODERN LAW

A. Very Brief History

I begin with A story about the law of negligence. The story is not new and it is not intended that the reader will learn much from it. Indeed, the vast majority of modern negligence lawyers already accept it, though it does not have a happy ending.¹

The law of negligence is a relatively recent invention, being at the beginning of the nineteenth century, in the words of PH Winfield, little more than ‘a bundle of frayed ends’.² Moreover, although the law developed throughout the nineteenth century, it nevertheless remained highly ‘fragmentary’.³ Hence, in 1932 Lord Atkin accurately described the law as containing:

an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified.⁴

However, towards the end of the nineteenth century, the law began to coalesce around general conceptions of the duty of care. Most significant in this regard were the judgments of Brett MR in Heaven v Pender⁵ and Lord Escher in Le Lievre v Gould.⁶ Support for a general test for the duty of care was also forthcoming from important academic commentators such as Winfield,⁷ Frederick Pollock,⁸ and John Salmond.⁹ The breakthrough came with Lord Atkin’s judgment in Donoghue v Stevenson, which introduced the ‘neighbour principle’, a general conception of the duty of care based on the notion of reasonable foreseeability.

However, the impact of the neighbour principle in practice tended to be rhetorical rather than direct.¹⁰ In reality, judges and commentators continued to regard the law of negligence as consisting of a series of separate duties of care that applied only to particular situations. Importantly, despite the neighbour principle, liability was not countenanced for injury to trespassers or for loss suffered consequent to negligent misstatements.¹¹ Of course, none of this is to say that the neighbour principle had no impact. But the influence of Lord Atkin’s judgment tended to be abstract rather than concrete. Instead of being applied directly, the neighbour principle led in time to an increasing generalism in the law, which slowly moved away from the idea of individual duties of care.

Because of this generalism, the middle years of the twentieth century witnessed an expansion in liability as individual and specific duties of care were generalised and so expanded into new territories. The most important case in this regard was Hedley Byrne & Co Ltd v Heller & Partners Ltd,¹² which for the first time allowed recovery for pure economic loss. Eventually, the generalist approach won out in Lord Reid’s judgment in Home Office v Dorset Yacht Co Ltd¹³ and most significantly in Lord Wilberforce’s judgment in Anns v London Borough of Merton.¹⁴

However, it was soon realised that the generalist approach suffered from a crucial flaw: it was unable sensibly to contain liability. In particular, judges and commentators came to realise that the generalist approach would produce indeterminate liability for economic loss, a conclusion that would be unacceptable in practice. Hence, the generalist approach has been abandoned to a degree. The law has now retreated to a position which sometimes invokes the generalist approach (particularly in cases of personal injury), but sometimes adopts an individual duties of care methodology (particularly in cases of economic loss).¹⁵ For instance, it is said that, despite Hedley Byrne, liability for economic loss will usually exist only if the defendant made a negligent misstatement and then only in certain specific circumstances. For these reasons, the focus of modern negligence lawyers largely surrounds elucidating the circumstances in which the generalist approach should and should not apply and the appropriate scope of the individual duties such as the one for negligent misstatement.

B. Implications of the Development of the Modern Law: The Role of Policy

The most noticeable effect of the rejection of the generalist approach has been the growing reliance on ‘policy’ arguments by courts and commentators. The terms ‘policy’ and its contrary ‘principle’ are difficult to define and more will need to be said about them later, but the following picture will suffice for the moment. ‘Principle’ refers to the rules and doctrines of the law itself. The idea that accepted offers made with consideration are binding as contracts is a paradigm example of a principle from the law of contract. ‘Policy’, on the other hand, can be defined only negatively. ‘Policy’ is everything apart from principle. For example, policy has been held to include issues of distributive justice, social morality, economic efficiency, public opinion and so on. But it is impossible to define the content of these terms exactly, because people disagree on what constitute the rules and doctrines of the law. Accordingly, there is no ‘theory neutral’ way of defining the content of principle and of policy. And, for reasons discussed below, the distinction between them is crumbling. For some modern commentators, the distinction is incoherent.

Returning to the picture of the law developed above, imagine that a court is faced with a claimant who maintains that she was injured as a consequence of the violation of a duty of care owed to her by the defendant. Imagine also that the defendant disputes the existence of the alleged duty of care and that there is no clear authority binding on the court. Assume further that, if the generalist approach were to be adopted, the claimant would win, but the defendant argues that an individual duties approach should be utilised and the claimant’s action should be held to lie outside the relevant duties. Where is the court to look for the answer to this dilemma?

The answer cannot be to the law or its principles. If the court looks to the generalist approach, then it begs the question against the defendant. If it looks to the individual duties approach, then it ignores the argument of the claimant. And there is, of course, no ‘meta-generalist’ approach that provides principles to allow the court to choose between the generalist and individual duties approaches. So where is the court to turn? The answer is to policy. In other words, in settling controversial issues, the court must look outside the existing legal rules and doctrines to something else, and the general term we use for this something else is ‘policy’.

Over the years, this something else has grown from a small suburb outlying the town of legal principle into a metropolis that now dwarfs and encroaches upon the town. Thus, in a rightly famous paper published in 1998, Jane Stapleton identified 50 policy concerns utilised by courts to determine the duty of care stage of the negligence enquiry.¹⁶ This already long list was not intended to be exhaustive but rather indicative of the kinds of concerns raised in courts, and there have been many more policy concerns utilised by courts since.

These policy concerns are highly controversial in two ways. First, their cogency is controversial. So, in the paper mentioned above, Stapleton did not merely list 50 concerns, she also recommended 29 of these for future courts’ consideration, while arguing against the application of 21. Others, naturally, disagree with Stapleton’s lists and argue that some of the 29 concerns on the in list should not be there, that some of the 21 on the out list should be on the in list, or that other concerns that Stapleton did not discuss should be on the in list. In fact, the potential lists seem endless. Hence, according to Stephen Todd, ‘[t]he question of responsibility for negligence may be argued in an almost unlimited range of circumstances, and all kinds of considerations may be taken into account in deciding how it ought to be resolved’.¹⁷

The policy concerns are also controversial in terms of their content. For instance, on Stapleton’s list of concerns recommended for courts’ attention is the notion that duties of care should not be recognised when they ‘would discourage socially beneficial forms of hospitality’.¹⁸ Obviously, what counts as a socially beneficial form of hospitality is a matter for considerable debate and about which there is much disagreement.¹⁹ But, according to Stapleton, it must be appropriate for judges to engage in that debate and in many similar debates when deciding the duty of care stage of the negligence enquiry.

Consider also the following examples from Stapleton’s in list said to constitute good reasons against imposing a duty of care.

(1) That the proper vindication of the law’s concern with the liberty of the individual justifies a refusal to recognise any duty of affirmative action towards a stranger. . . .

(3) The plaintiff himself had adequate means of avoiding the risk eventuating and causing loss.

(4) The imposition of a duty might produce a specified unattractive socio-economic impact such as the disproportionate distortion of the budgets and/or activities of public bodies to the detriment of a specified public interest. . . .

(7) Recognition of a duty here might bring the law into disrepute or otherwise injure its dignity.

(8) Imposition of a duty might threaten the control of public order, the conduct of military operations or national security. . . .

(19) Recognition of a duty might overall have deleterious effects on those in the position of the plaintiff. . . .

(22) Avoidance of breach of such a duty would be particularly onerous on disadvantaged groups.²⁰

None of these could be said to provide determinants of the duty of care; rather they are invitations to engage in wide ranging debates on issues about which there is nothing even approaching a general consensus.

As a result of this development, major disagreements as to the shape and direction of the law have become commonplace. Hence, to take just one example, some argue that recovery for economic loss should be significantly expanded,²¹ while others argue that it should be dramatically contracted.²² The point is not that people disagree over these matters when we turn to law reform, or even that such disagreements exist per se, neither of which would be surprising or inappropriate, but rather that these disagreements are found within the mainstream analysis of the law of negligence. Moreover, even when a consensus does exist, it is often merely on outcome rather than over appropriate reasoning. For instance, in White v Jones,²³ one of the most famous recent cases, a majority of the House of Lords agreed that the claimants should be able to recover from the defendant, but their Lordships gave quite different reasons for that conclusion. And, although the academic community has greeted the case with widespread acceptance, there appears to be no consensus on why the case was rightly decided (apart from the banal claim that it was ‘fair’). The above has also led to the existence of curious arguments that appear to lead nowhere. For instance, despite the consensus that general liability for economic loss would be intolerable, Basil Markesinis and Hannes Unberath note that in French, Belgian and Dutch law ‘tort compensation for pure economic loss is, quite simply, a non-problem’.²⁴ If it is true that recovery for pure economic loss exists in these jurisdictions,²⁵ then on what basis can it be assumed that it must not be permitted by the common law? Often, gut instinct seems to be the determining factor.

In summary, the law is awash with conflicting policy arguments that can be utilised to support any conceivable position. This is not to say that all positions are equally supported by the policy arguments, of course. But the point is that there is no longer any consensus on the type of arguments that are relevant and irrelevant. Any argument is prima facie relevant.

We have become so familiar with this situation that it is unlikely to raise any eyebrows, but is it not possible still to recapture some of the surprise that would have been felt by our juridical ancestors were we able to explain to them the current state of the law? Imagine how, say, Lord Atkin would have reacted to the idea that the modern law of negligence functioned in this manner. In fact, it is not necessary to conduct this thought experiment. One need only consult those colleagues who research in other areas of the law of obligations or who are civil lawyers. Consider our common law colleagues. It is a striking difference between negligence lawyers on the one hand and contract or unjust enrichment lawyers on the other that only the first compile long lists of allegedly relevant policies.²⁶ Few contract lawyers in particular would even entertain accepting an understanding of contract law that mirrors the modern negligence lawyer’s understanding of negligence.²⁷ Surely, I cannot be the only negligence lawyer who has noticed amongst his contract law colleagues a certain amused condescension. I would only add that, at least when directed to the law and not ad hominem, the condescension is largely deserved. After all, even amongst negligence lawyers themselves, it is widely recognised that the law of negligence is in a bad state.²⁸ To some, the law seems so ad hoc, so indeterminate, that it should be abolished.²⁹

Moreover, as the discussion of Stapleton’s paper above revealed, the reliance on policy has led to an increasing politicisation of the law. Consider, for instance, Stapleton’s recent address to the High Court of Australia. ‘I see every reason to hope that our tort law, the law of wrongs, as nourished by our present and future High Courts will attract renewed public confidence because of the supporting role it will play in righting the most grievous wrongs in Australia’s history.’³⁰ Notice the automatic inference from the claim that an issue is important for society as a whole to the conclusion that it is an appropriate matter for the courts to consider in tort cases. Certainly, there are very significant wrongs in Australia’s past that require righting, but why does it follow that the High Court of Australia, or other courts, should seek to remedy even some of those wrongs in tort law? The answer, I suppose, is that if the courts in tort cases are engaged in the kind of political debates witnessed earlier, then why not in other debates as well, such as the one concerning the past treatment of people in Australia? But how can we accept the existence of an unelected and unaccountable judiciary making such decisions?

Returning to the specific issue discussed by Stapleton, while many agree that the wrongs of the past should be remedied, we do not all agree on what those wrongs were or on how they should be remedied. And some deny that there were wrongs or, if there were, that they should now be remedied. In fact, this is close to the position taken by the current Australian Prime Minister. Nor do we necessarily agree on what constitutes ‘a proper vindic...