Evidence submitted by Richard Mullender,
Lecturer, Newcastle Law School, Newcastle upon Tyne
1. JUDICIAL AND
ACADEMIC COMMENT
ON BLAME
CULTURE
Judicial comment
It would be wrong to assume that the issue of
blame culture has only recently become a matter of concern to
judges. Certainly, recent judgments reveal such concern: eg, Tomlinson
v Congleton Borough Council. [137]But
judges have been expressing similar concerns since, at the last,
the 1980s. Two examples illustrate the point.
1980s: In CBS Songs Ltd v Amstrad Consumer Electronics
plc, Lord Templeman stated that claimants (and those representing
them) were increasingly ready to assume that foreseeability had
become "a reflection of hindsight and that for every mischance
in an accident prone world someone solvent must be liable in damages".[138]
1990s: in John Munroe (Acrylics) v London Fire
and Civil Defence Authorities, Rougier J stated that "[t]here
seems to be a growing belief that every misfortune must . . .
be laid at someone else's door".[139]
He also observed that "after every mishap, every tragedy,
the cupped palms are outstretched for the solace of monetary compensation".[140]
He plainly thought that the situation he was describing had grown
worse during his working life. For he said that "claims that
would have been unheard of 30 years ago are now being entertained".[141]
More recently, senior judges have suggested
that some claimants may be engaging in exaggeration (concerning,
inter alia, their injuries): eg, Judge LJ in Bradford-Smart
v West Sussex County Council.[142]
Academic comment
In The Damages Lottery, Professor Patrick
Atiyah argues that the judiciary have "stretched" negligence
law in a variety of ways. This has made it easier for claimants
to recovery compensation. The stretching described by Atiyah has
resulted in a relaxation of duty of care and causation requirements.
Likewise, the requirement of a showing of harm has been relaxed,
with the result that, inter alia, post-traumatic stress
disorder can ground a claim. Atiyah argues that judicial "sympathy"
for claimants explains, in large part, the developments he describes.[143]
In an earlier essay (on US tort law), Atiyah associated this sympathetic
outlook with adoption of a "social insurance principle",
according to which (and, here, Atiyah exaggerates) "the plaintiff
should always win".[144]
Moreover, he identified British judges as having begun to adopt
the same outlook.[145]
Like Atiyah, Tony Weir argues that legal developments
have played a significant part in the emergence of a blame culture.
He identifies the two-stage duty of care test set out by Lord
Wilberforce in Anns v Merton LBC as "pure plaintiff's law".[146]
He also sees this and other such developments as having fostered
a "wondrously unstoical and whinging society".[147]
Moreover, this process of development (pro-claimant law encouraging
"unstoical" attitudes) has, on Weir's analysis, been
unfolding for a long time. He argues that, from 1846 onwards,
"development [both at common law and statutory] has been
almost universally in favour of claimants".[148]
As a result, expansion and progress have, on Weir's account, been
conflated. For a society is "thought to be progressive to
the extent that it increasingly meets its citizens' complaints".[149]
2. "WEAK"
OR "BAD"
CLAIMS
The danger of circularity
Those who comment on blame culture tend to talk
in critical terms about "weak", "bad", "unmeritorious",
or "unethical" claims. This sort of language is used
by the Better Regulation Task Force (BRTF). When offering justifications
for its reform proposals, the BRTF refers to the inconvenience
caused by "ill-conceived" and "unethical"
litigation.[150]
Critical comment of this sort can only have force if the reasons
for regarding a claim as weak or unethical are spelled out. If
this is not done, there is a danger that the problem of circularity
(begging the question) will arise: ie, the claim will be considered
weak because it lacks merit. Here, nothing useful is being said
about the nature of the claims coming under criticism. As a result,
we do not have a normative argument against weak claims. Legal
basics provide at least the beginning of a basis on which to make
good this deficiency. Weak claims are advanced where (among other
things):
(i) the relevant harm was not reasonably
foreseeable (and/or can only be seen as reasonably foreseeable
with the benefit of hindsight);
(ii) a causal connection cannot be established
between the defendant's conduct and the claimant's losses; or
(iii) the relevant interference does not
constitute a significant harm.
How should we regard claims that exhibit weaknesses
of this sort? Here, generalisation is dangerous. Some of these
claims may be advanced by those who are ready to "have a
go": ie, to seek to advance a claim that they know to be,
at best, shaky. At least some of those who "have a go"
might be said to be ready to instrumentalise the defendant: ie,
treat the defendant as a means to the end of a money sum in circumstances
where they do not regard him or her as the author of their misfortune.
Where this happens the relevant claim is not only weak from a
legal standpoint but also "ethically" (to use the BRTF's
term) or morally objectionable.
The readiness to "have a go" is a
matter that merits rigorous empirical research. This is because
the typical claimant has, until recently, been assumed to be (sometimes
highly) risk-averse.[151]
If it is the case that a large number of claimants are ready to
have a go, then this marks a significant development. Empirical
research on this subject should examine the ways in which incentives,
attitudes, and behaviour may have been altered by conditional
fee arrangements and the Woolf reforms.[152]
Some weak claims have positive value
Here, two points need to be made:
(i) While some claims are weak, they
raise issues of public concern, where judicial scrutiny of the
defendant's conduct is valuable. One such case is Brooks v Commissioner
of Police for the Metropolis.[153]
Here, a young man who was with Stephen Lawrence on the night he
was killed (and who, like Lawrence, was attacked) brought a claim
against the police. He argued that, as a result of, among other
things, their failure to give him adequate support and attach
appropriate weight to his account of the incident in which Lawrence
was killed, he suffered post-traumatic stress disorder. Moreover,
Brooks made his claim after the Lawrence Inquiry had sharply criticised
the way in which the police had treated him.[154]
The House of Lords held that, to accept this claim would be to
go "too far".[155]
But their Lordships recognised that Brooks's invitation to examine
the outer limits of liability was a socially useful exercise.[156]
(ii) We live in a society where knowledge
relevant to effective risk-management accretes sometimes quite
rapidly. And this can result in an alteration in our understanding
of the range of circumstances in which harm is reasonably foreseeable.[157]
Likewise, we may conclude that our understanding of harm has altered
and that, as a matter of justice, protection should be provided
against a broader range of interferences.[158]
Judge-made common law can (and does) track shifts in the bounds
of reasonably foreseeable harm. Likewise, it can (and does) reflect
alterations in our understanding of properly compensable harm.
But this flexibility (as earlier noted) opens the way to abuse
of the law by at least some litigants.
3. NEGLIGENCE LAW
AS A
DISCOVERY-PROCEDURE
Our society is pervaded by risks. And these
risks may give rise to harms many of which cannot be anticipated
in advance. Negligence law provides at least part of the answer
to this problem. For it operates as a discovery-procedure. "Discovery-procedure"
is a term of art in Friedrich Hayek's writings. Hayek applies
it to markets which, on his account, afford means by which to
co-ordinate and distribute knowledge in socially beneficial ways.[159]
But Hayek's term is applicable (in an extended sense) to the process
that unfolds in trials concerning novel negligence claims.[160]
For co-ordination is a feature of the trial process. A judge (who
is in a position to make an authoritative determination) is presented
with hitherto unavailable information that may reveal the existence
of a new threat to society's members. Likewise, the process issues
in the distribution of knowledge. For a judge may establish a
new liability rule, speaking to a new source of danger. Or (where
a claim fails) he or she takes the opportunity to indicate where
the outer limits of liability are thought to lie in the relevant
risk environment.
On this view, at least some genuinely weak claims
have comparatively low value. This is because they do not (because,
for example, the requirement of harm cannot be met) indicate the
presence of a significant threat. But given the difficulties noted
in 2, above (shifts in the bounds of reasonable foreseeability,
etc), we should perhaps conclude that a readiness to tolerate
some weak claims is (all things considered) justified. This is
because some of them can be expected to prompt new understandings
of reasonable foreseeability, harm, and matters of public concern
(such as those considered in the Brooks case).
4. ADJUDICATION AND
THE PURSUIT
OF EQUILIBRIUM
In negligence law, judges seek to accommodate
a range of competing interests: most obviously, the security of
accident victims and the freedom of action of defendants.[161]
To this end, they have fashioned doctrines (eg, duty of care,
breach of duty, and remoteness of harm tests) that employ the
idea of "reasonable foreseeability" as a means by which
to mediate the two sets of interests. But the positions they stake
out are necessarily controversial. Security and freedom of action
stand in a zero-sum relationship: more of one entails a reduction
in the other. Here we have a problem of uncombinability.
Problems of incommensurability also arise in
this area of the law. We encounter these problems where two values
or two sets of practical arrangements cannot be ranked relative
to one another on a common scale.[162]
How, for example, should we rank two bodies of negligence law
that accommodate security and freedom of action differently (one
giving more emphasis to security, and the other giving greater
emphasis to freedom of action)? The difficulties involved in seeking
to answer this question have led some commentators to conclude
that the problem of incommensurability rears its head in negligence
law.[163]
The problem of incommensurability may explain
why judges seem constantly to be seeking an "equilibration
of social interests" in negligence law.[164]
Assuming that this is the case, the work done by judges is, in
large part, reactive.[165]
Existing rules are altered to address perceived imbalances. We
see this in English negligence law. From the 1930s until the early
1980s, the scope of negligence liability was expanded.[166]
A wider range of duties was imposed and, thus, security appeared
to be the value that figured most prominently in the minds of
judges. But from the mid-1980s, judges began a (much commented
upon) "retreat" from this expansive approach. Hence,
freedom of action appeared to figure more prominently in judicial
thinking.
Each of these developments indicates that judges
were seeking to establish a defensible accommodation of interests.
But given the problem of incommensurability, there is no single
set of arrangements that judges can identify as "the best".
However, they can and do respond to the problems that arise from,
say, expansion: eg, a high level of defensiveness on the part
of potential defendants, increased insurance premiums; a diversion
of funds from front-line public services into compensation awards
and risk-management strategies.
5. MEDIATING PRINCIPLES
Clause 1, Part 1 of the Compensation Bill is
clearly intended to focus on the issue of breach of duty. But
it raises an issue that is also addressed when duty of care questions
are examined. This is the question whether socially "desirable"
activities may provide grounds for rejecting a claim. In the duty
of care context, questions of this sort are tackled by judges
when considering the third stage of the duty of care test in Caparo
Industries plc v Dickman (which is concerned with the question
whether imposing liability would be "just, fair, and reasonable").[167].
Fundamentally, what is at stake here is the
question as to how negligence law should accommodate two types
of argument that compete with one another:
(i) arguments advanced by claimants
that have to do with (or, at least, should have to do with) corrective
justice (running on the theme "I have been wronged and this
wrong should, as a matter of justice, be righted"); and
(ii) arguments that concern a broader range
of interests (eg, those of persons who are denied access to needed
medical services, or those of children who are unable to go on
enriching school trips). Arguments of this sort are commonly described
as "policy-based". But at least some of them have to
do with the public interest and a smaller subset implicate the
ideal of distributive justice.
When addressing this issue, two points need
to be made.
(i) Assuming that some claims can be
properly described as "bad", we do not have a collision
between an argument from corrective justice and a countervailing
argument concerning policy (or the public interest or distributive
justice). This is because a genuinely bad claim cannot be categorised
as an appeal to corrective justice (since the defendant has not
wrongfully inflicted harm). The existing striking out procedure
provides a means by which to deal with many such claims.
(ii) In cases where we do have a clash between
an argument from corrective justice and a countervailing argument
that concerns policy (or the public interest or distributive justice),
thought needs to be given to this question: could a mediating
principle be used to ensure that both types of argument are adequately
considered. At present judges invoke the ideas of "justice,
fairness, and reasonableness" when trying to mediate competing
concerns. But perhaps a principle like proportionality could do
useful work here. If used in this area of the law, judges would
address this question: "Is it necessary to reject an otherwise
good claim in order to ensure that a publicly beneficial activity
can be effectively pursued?"
6. RIGHTS AND
RESPONSIBILITIES
The argument for seeking to limit the circumstances
in which weak or bad claims can be advanced might draw strength
from the principle that rights and responsibilities should stand
in a complementary relationship. At present, the addressees of
negligence law are expected not merely to discharge existing duties.
They are also expected to act on the law's reasonably ascertainable
implications. Moreover, to the extent that they do act in this
way, they forestall harm, secure others" interests, and participate
in the generation of social capital. Given that negligence law's
addressees are expected to act in this way, they bear significant
responsibilities. As a matter of distributive justice, these responsibilities
should be offset (or balanced) by a right not to be exposed to
(or only rarely to be exposed to) weak claims.
Richard Mullender
Lecturer
Newcastle Law School
November 2005
137 [2003] 3 All ER 1122. Discussed in Arculus, et
al, Better Routes to Redress (Better Regulation Task Force,
2004), 18-19. Back
138
[1988] 1 AC 1013. 1059. Back
139
[1996] 4 All ER 318, 322. Back
140
Ibid. Back
141
Ibid. Back
142
[2002] EWCA Civ 7 (unsuccessful claim concerning school bullying).
Judge LJ noted that exaggeration had concerned Lord Slynn in Phelps
v London Borough of Hillingdon [2001] 2 AC 619. Back
143
Atiyah, The Damages Lottery (1997), 47-50 and 138-143. Back
144
Atiyah, "American Tort Law in Crisis" (1987) 7 Oxford
Journal of Legal Studies 279, 287-290. Back
145
Ibid, 279 (discussing compensation for mental harm). Back
146
Weir, "Governmental Liability" [1989] Public Law,
40, 51. (The approach to duty of care questions adopted in Anns
v Merton LBC [1978] AC 467 was disapproved by the House of Lords
in Murphy v Brentwood DC [1991] 1 AC 398. In Anns, Lord Wilberforce
stated that "in order to establish that a duty of care arises
. . ., it is not necessary to bring the facts of that situation
within those of previous situations in which a duty . . . has
been held to exist". As a result, the law was identified
as strongly receptive to novel claims. See Weir, op cit, 50. Back
147
Ibid, 55. (Weir shares with such non-legal commentators
as John Humphrys and Jeremy Paxman the view that the British have
become less stoical". See Weir, supra, n 10, 55.) Back
148
Weir, Tort Law (2002), 3. Back
149
Ibid, 4. Back
150
Arculus, et al, n 1, above, 12, and 19. Back
151
Harris and Campbell, Remedies in Contract and Tort (2002),
432. Back
152
Ibid, 436. Back
153
[2005] 1 WLR 1495. Back
154
The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William
Macapherson (1999) (Cm 4262-1). Back
155
Brooks v Commissioner of Police for the Metropolis, n 17, above,
1509, per Lord Steyn. Back
156
Ibid, 1509. Back
157
See, for example, Watson v British Boxing Board of Control [2001]
QB 1134. Back
158
In the twentieth century, negligence law began to offer compensation
to those who had suffered psychiatric injury but no accompanying
physical harm. Back
159
See Hayek, The Road to Serfdom (1986), 161 and 15-17.
(In the case of the market as a discovery-procedure, knowledge
is encoded in prices that are themselves determined through voluntary
exchanges. See Gray, Hayek on Liberty (1984).) Back
160
The use of "discovery-procedure" proposed in the text
is extended for this reason. Hayek focuses on a comparatively
informal discovery-procedure (the market, where (save for a body
of constitutive rules) outcomes (prices) are determined by an
aggregate of free choices. But, in negligence law, a judge makes
an authoritative ruling on the significance of evidence and arguments
that (in order to be accepted) must satisfy a range of legal requirements.
The need for this latter discovery-procedure is easily explained.
The transaction costs (most obviously, search costs) involved
in identifying the myriad circumstances in which reasonably foreseeable
harm could be inflicted are prohibitively high. But, by allowing
addressees of the law to mount negligence actions, a body of knowledge
concerning risks and means by which to counter them can be accumulated. Back
161
Cane, The Anatomy of Tort Law (1997), 14. Back
162
Raz, The Morality of Freedom (1986), ch. 13. Back
163
Raz, "On the Autonomy of Legal Reasoning" (1993) 6
Ratio Juris 1, 13-14. Back
164
The phrase in the text comes from Cardozo, The Paradoxes
of Legal Science (1928), 72-77. Back
165
Ibid. Back
166
Mullender, "Treading a More Uncertain Path: Negligence
and the House of Lords" (1998) 5 Tort Law Review 180. Back
167
[1990] 2 AC 605, 617-618, per Lord Bridge. Back
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