The Merits of Fault-based Tort Law — Responding to Lord Sumption

Full question: ‘From a purely utilitarian point of view, if the cost of compensating people for personal injury falls on society at large, there is no rational reason to distinguish between personal injury which has been caused by someone’s fault, and personal injury which has occurred without fault. Equally, there is no rational reason why the victims of accidents, however caused, should necessarily recover a full indemnity as the law of tort presently requires. Since we are all paying for the tortiously inflicted injuries, we might as well treat it as a social service and make it respond to our collective social priorities rather than to the common law rights of individual claimants.’ (LORD SUMPTION, writing extra judicially) Discuss.

Introduction

Lord Sumption

While I accept that fault-based personal injuries law (PI) is far from perfect, Lord Sumption’s statement fails to sufficiently emphasise the merits of PI and overemphasises the supposed financial costs on society. My central argument is that society benefits from fault-based PI since it incentivises individuals to take precautions against injuring others in circumstances where liability for injury will arise under PI law. The general requirement of fault reflects society’s legitimate belief in the legal right to bodily integrity, a point which Lord Sumption himself concedes. I agree with McBride (2021) and Birks (1995) who argue that PI (and tort law more broadly) serves a dual purpose of recognising the legal duties we owe to each other and responding to the wrongdoing of tortfeasors in open court to achieve justice for tort victims when those duties are breached. Compensation from a common fund would not, in my view, entail the same sense of catharsis and vindication that is integral to litigation and open justice.

Vindication and open justice

Contrary to Lord Sumption’s claim, there is a rational reason for not (normally) imposing strict liability. The rational reason to distinguish between personal injury which has been caused by someone’s fault and personal injury which hasn’t is that in the latter case the individual is less (if at all) morally culpable. In the former case, the agent has invaded the victim’s physical integrity and has fallen below the standard of conduct that the courts (and by extension society) requires to ensure reasonable levels of safety but doesn’t warrant criminal punishment. Support for the proposition that PI law plays a vital vindicatory role comes from Hill v Chief Constable of West Yorkshire (1988). The claimant was the mother of a murder victim who publicly declared that she would donate to charity any damages awarded and that her primary reason for bringing the claim was to obtain an investigation into the police’s botched manhunt for the “Yorkshire ripper”. The victim in Robinson v Chief Constable of West Yorkshire Police (2018) also stated that she wanted an apology and public recognition that she’d been wronged.

Another example of the irrelevance of compensation is Ashley v Chief Constable of Sussex (2008). The claim was brought by the relatives of a man fatally shot by armed police. Even though the constabulary admitted liability for negligence and committed to pay full compensation, the claimants rejected this offer who wanted to pursue a claim for battery. The House of Lords approved of this stating that the claimants had a legitimate interest in pursuing the battery claim despite no more compensation being awarded if the claim succeeded. Underlying the claimants actions was a desire to vindicate the deceased’s right not to be unlawfully killed and to secure an admission of fault. Compensation had nothing to do with it.

Lord Sumption would likely respond by asserting that this need for open vindication is better served by criminal law since personal responsibility and retribution are at the heart of the sanctions imposed by criminal law (Morgan, 2018, p19). However, a greater degree of culpability is required to prove criminality and as McBride (2021) asserts, removing the need to find a duty to take care not to injure another would sow discord in other areas of the law, namely ‘gross negligence manslaughter’ would be thrown into disarray (p11). Sometimes claimants will bring vindicatory actions in circumstances like Hill or those involving child fatalities. As Richard Miller observed, a no-fault compensation scheme would leave victims of medical negligence and victims of ‘a serious accident and a serious injury, like paraplegia, where the person who caused the act was a drunk driver’ with ‘little sense of justice’.

As Janet O’Sullivan highlights in discussion of this chapter, a no-fault compensation scheme produces unjust results for three babies born with disabilities, the first baby’s disabilities were due to a doctor’s carelessness in delivering the baby, the second baby’s disabilities were due to non-careless actions performed by a doctor (e.g. triggering early delivery in order to save the mother’s life), and the third baby’s disabilities were congenital. Under a no-fault compensation scheme the first and second babies will receive compensation for their disabilities while the third baby gets nothing. This is much harder to justify than the current position under PI law in the UK where the first baby is able to sue in tort for compensation because he did not get the treatment that was owed to him while the second and third babies get nothing because they did get the treatment that was owed to them (McBride, 2021 p13).

Deterrence

The second limb of Lord Sumption’s statement doubts the claim that PI law has a deterrent effect considering that the damages are not paid by tortfeasors but by society as a whole in the form of higher insurance premiums and taxes. There is also the issue of whether vicarious liability ‘blunts’ the sanctions imposed on tortfeasors and nullifies the deterrent effect of tort liability (Morgan, 2018, p8). However, these two claims fail on three grounds. First, they fail to emphasise that persons at fault do pay a price. For example, the insured tortfeasor may be left to ‘bear a proportion of the risk themselves through a compulsory “excess” (e.g. first £500 of claim being met by the insured)’ and ‘future premiums may increase if a claim is made’ (ibid).

As a matter of law, an order for compensation is made against the tortfeasor. The fact that the tortfeasor can seek indemnity from an insurer is a private matter, which from a societal perspective does not detract from the value of compensation in providing redress nor does it curb the instinctive desire to avoid being sued. Second, vicarious liability can provide a ‘superior deterrent’ compared to leaving liability on individual employees since employers are incentivised to train, monitor and impose disciplinary actions on their workforce to avoid being easy targets for a tort lawsuit. Employers are also in a better position to minimise the risks of accidents than individual employees.

Third, evaluating the cost to society in the form of the direct funds being channelled into tort law is misleading since the opportunity costs that arise from the existence of PI law are notoriously difficult to determine (McBride, 2021, p7; Hazlitt, 1946). This difficulty arises because it requires us to imagine a world without PI law, which is necessarily speculative (Morgan, 2018, p2). Nevertheless, the four possible opportunity costs identified by McBride (2021) and inherent in Lord Sumption’s criticism of PI law are (1) gains from economic growth, (2) gains from lower insurance premiums (3) a no-fault compensation scheme (4) gains in freedom to engage in valuable. Since it is not possible for me to discuss each in detail, I will summarise by highlighting that the introduction of the Accident Compensation Act 1972 in New Zealand the average rate of economic growth (2.24% between 1975 and 2017) was not much better than other modern Western economies (2%) (McBride, 2021, p3). Further, while road accident rates continued to fall after the abolition of negligence claims, this was likely attributable to stricter enforcement of drink-driving laws (Morgan, 2018, p11). Both statistics demonstrate that the non-existence of fault-based PI law had at best negligible economic effects and at worst they removed the possibility of vindication for tort victims.

Conclusion

Any proposal for reform or abolition would require real-world empirical data to verify its merits and even allowing for a lower burden of proof does not obviate the essential vindicatory role that PI law plays and its deterrent effect on individuals, which benefits society as a whole.

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References

Case law

  1. Hill v Chief Constable of West Yorkshire (1988)
  2. Ashley v Chief Constable of Sussex (2008)
  3. Michael v Chief Constable of South Wales (2015)
  4. Robinson v Chief Constable of West Yorkshire (2018)
  5. Smith v Ministry of Defence (2013)
  6. Lister v Romford Ice and Cold Storage Co Ltd (1956)
  7. Bici v Ministry of Defence (2008)
  8. Belhaj v Straw (2017)
  9. Donoghue v Stevenson (1932)
  10. Simpson v Attorney-General (Baigent’s Case) (1994)

Academic commentary

  1. Abolishing Personal Injuries Law — A project (2018) — Sumption
  2. Responding to Sumption (2018) — Morgan
  3. The Cost and Value of Personal Injury Law (2021) — McBride
  4. Personal injuries in the 21st century: thinking the unthinkable (1996) — Atiyah

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