The Emergence of Cost-Benefit Balancing in English Negligence Law (original) (raw)
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The Cambridge Law Journal, 2008
Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases:
Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal
Journal of European Tort Law, 2020
Over a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author's model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model's operation by applying it to the 2018 SCC's decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.
Victoria University of Wellington Law Review
True proportionality between the degree of a tortfeasor's fault and the extent of a plaintiff's loss is unachievable in negligence law in New Zealand. As Mallon J's judgment in Strathboss Kiwifruit Ltd v Attorney-General highlighted, the concept of proportionality can only be used to negate an alleged tortfeasor's duty of care, thereby eliminating the potential for liability. This approach does not accommodate differing levels of disproportionality. Moreover, relying on negligence law's liability limiting mechanisms to achieve proportionality, as Mallon J did in Strathboss, will not always be fruitful; there may still be a large gap between what a defendant has done and what the defendant is held accountable for. The extent of a tortfeasor's liability may depend on luck rather than principle. However, internationally, the wrongful conception and birth cases reveal a more nuanced use of proportionality: reducing the scope of a tortfeasor's duty of care. Wh...
The Cambridge Law Journal
Few doctrines in the law of torts have received as much scholarly attention as the duty of care in negligence. It is legitimate to ask what new contribution a treatise on duty can make. James Plunkett's The Duty of Care in Negligence provides a useful consolidation of the historical and modern evolution of duty and a thoughtful critique of some current scholarly debates. Those who work in the field may find this material to be largely familiar: the historical terrain has already been well-charted by David Ibbetson and others; and the journey from Donoghue v Stevenson [1932] A.C. 562 to Anns v Merton London Borough Council [1978] A.C. 728 and Caparo Industries v Dickman [1990] 1 A.C. 605 is all too well known. Plunkett also provides a catalogue of the various methodologies for assessing novel duty situations, and a discussion of the appropriateness of using so-called "policy" reasoning in duty cases. The latter debate has become, to some scholars, detached from reality. The meat of Plunkett's book is contained in chs. 4, 5 and 6, which assess the respective concepts of "factual duty" and "notional duty". Factual duty refers to the determination "whether harm to the plaintiff was a reasonably foreseeable consequence of the defendant's conduct", while notional duty refers to the question "whether the broad circumstances in which the plaintiff suffered the injury ought to be subject to the laws of negligence" (emphasis original). With respect to the first inquiry, Plunkett agrees with critics who find the duty question superfluous in negligence analyses, as it overlaps with the more clearly factual questions of whether the defendant breached the standard of care and whether the loss was too remote. All of these questions boil down to an assessment of whether the defendant's actions posed a foreseeable risk of the injury suffered by the plaintiff. Plunkett thus argues that the factual inquiry should be removed from duty analyses, which should instead focus exclusively on the notional question. After reviewing the various duty "tests" that have been employed over the last century (and their respective flaws), Plunkett proposes that the quest for a single notional duty test be abandoned and replaced with five broad duty categories, each with its own principles of recovery and non-recovery. For cases involving physical injury, property damage or psychiatric harm, the principles would explain a general rule of recovery, subject to narrow exclusionary exceptions. Conversely, for cases involving omissions and purely economic loss, the principles would explain a general exclusionary rule, subject to narrow inclusionary exceptions. By employing these more discrete duty categories, Plunkett argues, we would be able more clearly to identify which principles were relevant to any given duty scenario, and avoid having to use concepts like "proximity" in such a broad way as to be vague and unhelpful. Plunkett's proposal seems sensible, and reflects, to a large measure, the way that appellate courts already approach these situations in practice. Indeed, the UK
Drifting Towards Proportionate Liability: Ethics and Pragmatics
The Cambridge Law Journal, 2015
This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.
Tort Law: Defects of the Comparative Negligence Standard
Agenda: a journal of policy analysis and reform, 1996
NDIVIDUALS and corporations continually engage in activities that could result I in accidents. How much care ought they to take, and how might they be en--A^couraged to take it? Tort law allocates risk between parties who arc not in a contractual relationship, or where a dispute is not covered by a contract. The apportionment of liability in particular tort cases affects incentives to take care in similar situations in the future. The liability rules that evolved over centuries of litigation took these incentive ef fects into account. The result was a system that encouraged efficient expenditures on care. At the same time, clearly defined legal standards of care, together widi strong incentives to meet those standards, discouraged unnecessary litigation. Within the last century, the 'all or nothing' rule of negligence with a defence of contributory negligence has been replaced in most jurisdictions in the Englishspeaking world by 'comparative negligence' rules that apportion damages in accor dance widi fault. In die first instance, and in most jurisdicdons, die replacement of contributory by comparadve negligence was effected dirough legisladon. The change was not defended on die grounds diat it was likely to encourage more effi cient care. Radier, die change reflected a view diat die compensadon of injured pardes in itself was an appropriate goal of die legal system. Yet die change to com paradve negligence has probably resulted in less efficient care, increased lidgadon and more expensive trials. The increase in lidgadon may have been greater in die United States because contingency fees lower die expected compensadon required to make lidgadon wordiwhile. If so, moves to introduce contingency fees in some Australian jurisdictions may furtiier increase die amount of litigation in Australia. There are several common law rules of liability. This article focuses on compara dve negligence and die rule it largely replaced, contributory negligence. Neverthel England, Australia and New Zealand refer to apportionment rules as 'contributory negligence'. W e follow United States practice and use 'comparative negligence' for the new rules and retain 'contributory negligence' for tire common law rule.
Comparative Negligence and Mitigation of Damages : Two Sister-Doctrines in Search of Reunion
2013
This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation mechanisms was identified by the drafters of the Third Restatement of Torts on Apportionment of Damages, which proposed abolishing mitigation altogether and subsuming it under comparative negligence. Surprisingly, this revolutionary proposition was not preceded nor followed by any a...
The Economics of Clinical Negligence Reform in England*
The Economic Journal, 2004
In Britain, the NHS spends millions of pounds a year compensating patients injured during medical treatment. Compensation is paid if the patient can demonstrate that treatment was supplied negligently. However, concern over the cost, effectiveness and administrative efficiency of this approach has led jurisdictions like Sweden, New Zealand and some US states to alter the basis for compensation, and the Department of Health has now published proposals for reform in England. We assess the current approach in England and provide costings for some key alternatives to have featured in the latest policy debate. We draw lessons for reform from international experience.
The Vulnerable Subject of Negligence Law
International Journal of Law in Context, 2012
The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it is dependent.