Abstract
Prima facie rights to compensation come into existence in the tort of negligence where plaintiffs can meet two sets of requirements. First, a plaintiff must establish the existence of a duty of care by demonstrating the reasonable foreseeability of harm and the proximity of his relationship with the defendant. Secondly, he must meet the law’s requirements relating to breach of duty, causation of damage, and remoteness of harm.1 A prima facie right of the sort here described can be regarded as providing judges with a significant reason for action. The significance of this reason for action can be explained by reference to the ideal of corrective justice. This ideal specifies that those responsible for the wrongful infliction of harm on others should restore the latter to the status quo ante. Corrective justice invests prima facie rights with significance, since it can reasonably be regarded as providing negligence law (and tort more generally) with its central purpose.2
A particular debt of thanks is owed to Matthew Kramer for his helpful criticisms of and comments on earlier drafts of this piece. Thanks are also due to John Alder, Roger Brownsword, Jules Coleman, Ian Dawson, David Howarth, William Lucy and Jane Stapleton for their helpful comments on and questions concerning earlier drafts of this essay.
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Notes
See R. Mullender, ‘Negligence, Public Concerns And The Remedying Of Wrongs’ 56 Cambridge Law Journal 14, 16 (1997).
See also R. Mullender, ‘Negligence, The Pursuit Of Justice And The House Of Lords’ 4 Tort Law Review 9, 11 (1996). As used in the text, ‘prima facie’ means ‘defeasible’ or ‘overridable’.
For further discussion of this understanding of the term, see M.H. Kramer, In Defence of Legal Positivism: Law without Trimmings (Oxford: Oxford University Press, 1999), p. 267, et seq.
For discussion of the view that pursuit of the ideal of corrective justice provides negligence law’s central purpose, see P. Cane, The Anatomy of Tort Law (Oxford: Hart Publishing, 1997), p. 18.
Cf. J. Coleman, Risks And Wrongs (Cambridge: Cambridge University Press, 1992), p. 198, where it is stated that ‘tort law’s core will of course be controversial’. See also Atiyah’s Accidents, Compensation and the Law (London: Butterworths, 1999, 6th edn, P. Cane (ed)), ch. 18, where the law of negligence is identified as having to do, inter alia, with compensation, distribution of losses, allocation of risks, deterrence, and vindication.
S. Blackburn, The Oxford Dictionary of Philosophy (Oxford: Oxford University Press, 1994), p. 319.
See, for example, Osman v. Ferguson [1993] 4 All ER 344. See also the discussion of this case in B.S. Markesinis and S.F. Deakin, Tort Law (Oxford: Clarendon Press, 1999, 4th edn), p. 372. I should here mention two types of circumstances somewhat different from the situation contemplated in the text: (i) P’s claim is rejected in the light of countervailing arguments having to do with negligence’s relationship with another body (or bodies) of law (as in Rich (Marc) & Co AG v. Bishop Rock Marine Co Ltd (The Nicholas H) [1996] 1 AC 211); (ii) P’s claim can plausibly be regarded as having been rejected on grounds such as those contemplated in the text, but those grounds are not openly acknowledged by adjudicators.
On this latter type of situation, see both the discussion of Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 in M. Davie, ‘Negligently Inflicted Psychiatric Injury: The Hillsborough Case In the House Of Lords’ 43 Northern Ireland Legal Quarterly 237 (1992), 247 et seq, and 261;
and B.S. Markesinis, J.-B. Auby, D. Coester-Waltjen, and S.F. Deakin, Tortious Liability of Statutory Bodies: a Comparative Analysis of Five English Cases (Oxford: Hart Publishing, 1999), p. 39 et seq.
The point made in the text supports the view that departures from rationality of the sort under discussion also entail a lack of fidelity to law. On ‘fidelity to law’ in the negligence context, see L. Dolding and R. Mullender, ‘Tort Law, Incrementalism, and The House of Lords’ 47 Northern Ireland Legal Quarterly 12 (1996), 30–1.
On rational reconstruction, see N. MacCormick, ‘Reconstruction after Deconstruction: a Response to CLS’ 10 Oxford Journal of Legal Studies 539 (1990), 556.
For an account of some of the central elements of qualified deontological thought, see R. Mullender, ‘Privacy, Paedophilia and the European Convention on Human Rights: a Deontological Approach’ Public Law 384 (1998), 386–8.
For an approach to moral theory that combines deontological and consequentialist components in the way described in the text, see T. Nagel, ‘Justice and Nature’ 17 Oxford Journal of Legal Studies 303 (1997), 303 et seq.
See also T. Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1979), pp. 131–2, 137, and 139.
See J. Raz, Practical Reason and Norms (Princeton, NJ: Princeton University Press, 1990), pp. 11–12, where ‘practical philosophy’ (of which qualified deontology provides an example) is identified as addressing and seeking to provide guidance concerning, inter alia, the problems of value theory and normative theory.
See L. Dolding and R. Mullender, supra, nn. 5, 12. Protection of the interests noted in the text is a necessary, if not sufficient, condition of a person’s being able to live an autonomous life. On ‘autonomy’, see J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 155, where it is identified as having to do with substantial authorship of one’s life. See also p. 369 et seq.
See L. Dolding and R. Mullender, supra, n. 5, 13–14. See also E. Weinrib, ‘Understanding Tort Law’ 23 Valparaiso Law Review 485 (1989), 512 and 515.
While use is made in this piece of, inter alia, the phrase ‘countervailing costs’, it is common to find judges using rather more oblique expressions. These expressions include ‘policy’, ‘policy considerations’, or ‘policy justifications’. In this connection, see P. Cane, The Anatomy of Tort Law, supra, n. 2, 226–7. See also R. Bernstein, Economic Loss (London: Sweet & Maxwell, 1998), pp. 67–72.
Arguments of the sort referred to in the text have to do with matters in which all (or some significant subset) of society’s members have an interest. Hence, they can be regarded as being informed by a ‘common interest’ conception of the public interest, on which see B. Barry, Political Argument (London: Harvester Wheatsheaf, 1990), chs 10–14.
For further discussion of the type of argument noted in the text, see J. Bell, Policy Arguments in Judicial Decisions (Oxford: Clarendon Press, 1983), pp. 70–1.
See P. Cane, ‘Consequences in Judicial Reasoning’, in J. Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series (Oxford: Oxford University Press, 2000), pp. 50–1.
See John Munroe (Acrylics) v. London Fire and Civil Defence Authorities and Others [1996] 4 All ER 318, 332, per Rougier J and CBS Songs v. Amstrad Consumer Electronics plc [1988] 2 All ER 484, 497, per Lord Templeman. For discussion of the ‘blame culture’ argument, see P.S. Atiyah, The Damages Lottery (Oxford: Hart Publishing, 1997), pp. 176 and 184.
Cf. J. Conaghan and W. Mansell, ‘From the Permissive to the Dismissive Society: Atiyah’s Accidents, Compensation and the Market’ 25 Journal of Law and Society 284 (1998), 289–92.
See J. Bell, supra, n. 21, 56. See also B.S. Markesinis, ‘Judicial Style And Judicial Reasoning In England And Germany’ 59 Cambridge Law Journal 294 (2000), 303. (The point made in the text vis-à-vis publicly-oriented arguments countervailing against the imposition of liability can also be made, mutatis mutandis, with respect to publicly-oriented arguments that support the imposition of liability. For an example of a publicly-oriented argument in favour of the imposition of liability that is not supported by reference to relevant empirical material, see Waters v. Commissioner of Police of the Metropolis [2000] 1 WLR 1607, 1619–20, per Lord Hutton.)
The use of rhetorical (in terrorem) argumentation in the way described in the text should not surprise us, if we accept that ‘legal reasoning is, essentially, debaters’ reasoning’. See R. Posner, ‘Legal Scholarship Today’ 45 Stanford Law Review 1647 (1993), 1654.
See A.P. Simester and A.T.H. Smith (eds), Harm and Culpability (Oxford: Clarendon Press, 1996), pp. 111–12 (from ‘Justifications and Reasons’, by J. Gardner).
Support for the elaboration of the law in the way contemplated in the text can be found in R. Dworkin, ‘Law’s Ambitions For Itself’ 71 Virginia Law Review 173 (1985), 180–2.
See R.M. Hare, Essays In Ethical Theory (Oxford: Clarendon Press, 1989), ch. 4.
On both exclusionary reasons and decision-making on the balance of reasons, see J. Raz, supra, nn. 8, 35–48. See also S.R. Perry, ‘Judicial Obligation, Precedent and the Common Law’ 7 Oxford Journal of Legal Studies 215 (1987), 219–20.
The incentive mentioned in the text would be much like those generated by the doctrine of res ipsa loquitur. Support for this view can be found in J. Fleming, The American Tort Process (Oxford: Clarendon Press, 1988), p. 134
and in A.M. Linden, Canadian Tort Law (Toronto: Butterworths, 1993, 5th edn), pp. 233 and 236.
On ‘underdeterminacy’, see C. Kutz, ‘Just Disagreement: Indeterminacy and Rationality in the Rule of Law’ 103 Yale Law Journal 997 (1994), 1002.
The point made in the text reveals the proportionality principle to present those seeking to advance an argument against the imposition of liability with a more precisely defined test than does the powerful countervailing concern principle. This is because proportionality clearly requires defendants to show that it is necessary to override some interest (here, a prima facie right) in order to pursue an end that is in the public interest. It is not clear that the same (necessity) requirement is a feature of the powerful countervailing concern principle. On the necessity requirement of the proportionality principle, see D.J. Harris, M. O’Boyle and C. Warbrick, Law Of The European Convention On Human Rights (London: Butterworths, 1995), pp. 11–12.
See T. Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991), ch. 2, where it is argued that those seeking to justify institutions such as the law should offer reasons sensitive to each of the perspectives noted in the text. See esp. 15 et seq.
See J. Shklar, The Faces Of Injustice (New Haven: Yale University Press, 1990), ch. 3.
See, for example, E.J. Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).
On nonjusticiability, see L. Dolding and R. Mullender, supra, n. 5, 21. See also A.E. Guest (ed.), Oxford Essays in Jurisprudence (London: Oxford University Press, 1961), ch. 10 (‘Justiciability’, by G. Marshall);
and R.S. Summers, ‘Justiciability’ 26 Modern Law Review 530 (1963).
See L. Fuller, ‘The Forms And Limits Of Adjudication’ 92 Harvard Law Review 353 (1978), 395 (emphasis added), where it is noted that polycentric disputes typically implicate the interests of a ‘huge number of possibly affected parties’.
See also L. Green, ‘Tort Law Public Law in Disguise’ 38 Texas Law Review 1 (1959), 1–3, where support can be found for the point made in the text.
See G.J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), p. 203 et seq.
L. Jaffe, Judicial Control of Administrative Action (Boston: Little Brown and Co, 1965), p. 51. See also Postema, supra, n. 60, 202.
See R. Mullender, ‘The Concept of Incrementalism in Anglo-Canadian Negligence Law: Spring v. Guardian Assurance plc’ 74 Canadian Bar Review 143 (1995), 147.
Decisions of the sort described in the text may prompt intense feelings of regret. See A.T. Kronman, The Lost Lawyer: Failing Ideals Of The Legal Profession (Cambridge, MA: Harvard University Press, 1993), pp. 74–87.
See B.N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), pp. 65–6 (emphasis added).
See also D. Robertson, Judicial Discretion in the House of Lords (Oxford: Clarendon Press, 1998), p. 234.
See R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), ch. 4. See esp. pp. 154–64.
R. Dworkin, Law’s Empire (London: Fontana Press, 1986), ch. 5 (on pragmatic adjudication). See also R.A. Buckley, ‘Negligence In The Public Sphere: Is Clarity Possible?’ 51 Northern Ireland Legal Quarterly 25, 28–9.
See Hare, supra, n. 33, ch. 4. See also R.M. Hare, Freedom And Reason (Oxford: Clarendon Press, 1963), ch. 3.
See R.M. Hare, The Language O f Morals (Oxford: Clarendon Press, 1952), pp. 51–2.
The position staked out by Hare bears similarities to that set out in D. Hume, A Treatise O f Human Nature (Oxford: Clarendon Press, 1978, L.A. Selby-Bigge (ed.)), pp. 551–2 (where it is stated that exceptions to generally applicable norms must, in order to be acceptable, be amenable to accommodation in a general system of justice).
Support for the view expressed in the text can be found in M.H. Kramer, In The Realm Of Legal And Moral Philosophy: Critical Encounters (Basingstoke: Macmillan — now Palgrave, 1999), ch. 4. See esp. p. 69.
The law of negligence is widely apprehended in a way that deflects attention from the fact that some wrongs are not righted. This is because it is generally assumed that only those claimants who can satisfy all of the law’s requirements of liability (and not just those that provide a basis upon which to establish a prima facie right to compensation) can be regarded as having been wronged. See G. Fletcher, supra, n. 36, 566. See also 557 and 571. See also G. Fletcher, ‘The Search For Synthesis In Tort Theory’ 2 Law and Philosophy 63 (1983), 74–5.
On the principle that like cases should be treated alike, see H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994, 2nd edn, P.A. Bulloch and J. Raz (eds)), pp. 157–8.
The (strong deontological) assumption described in the text is discussed in G.E.M. Anscombe, ‘Modern Moral Philosophy’ 33 Philosophy 1, 10 (1958).
See also H.M. Hurd, ‘The Deontology Of Negligence’ 76 Boston University Law Review 249 (1996), 252–3.
See N.E. Simmonds, ‘Normativity and Norms’ 13 Ratio Juris 219 (2000), 225;
R.L. Sullivan, Immanuel Kant’s Moral Theory (Cambridge: Cambridge University Press, 1989), pp. 42–3 and 132–3;
and A.W. Wood, Kant’s Ethical Thought (Cambridge: Cambridge University Press, 1999), p. 239 et seq.
See Muller v. Oregon (1908) 208 US 412. On the Brandeis brief, see W.W. Fisher III, M. Horwitz, and T.A. Reed (eds), American Legal Realism (New York: Oxford University Press, 1993), p. 237.
See J. Steyn, ‘Does Legal Formalism Hold Sway In England?’ 49 Current Legal Problems 43 (1996), 54–5.
The practice discussed in the text may, however, encourage defendants to run arguments based on material that could be described as (or likened to) ‘junk science’. On ‘junk science’, see P.W. Huber, Galileo’s Revenge: Junk Science in the Courtroom (New York: Basic Books, 1993), pp. 1–6.
Fuller, supra, n. 58, 370 (emphasis added). See also F. Schauer, ‘Giving Reasons’ 47 Stanford Law Review 633 (1995), 633–4.
See J. Stapleton, ‘Duty Of Care: Peripheral Parties And Alternative Opportunities For Deterrence’ 111 Law Quarterly Review 301 (1995), 319 (on the alternative means of protection principle) and 328 et seq (on the anti-circumvention principle). (See also the decision of the Australian High Court in Pyrenees Shire Council v. Day 72 ALJR 153 (1998), 201, n. 334, per Kirby J, where the relevance of the proportionality principle to the area of law under discussion in this piece has been noted.)
See R. Mullender, ‘Negligence, The Policy/Operational Distinction And The European Convention On Human Rights’ 7 Tort Law Review 98 (1999), 101.
On uncombinability, see J. Gray, Post-Liberalism: Studies in Political Theory (London: Routledge, 1993), 301.
See B. Barry, Justice as Impartiality: a Treatise On Social Justice, vol. II (Oxford: Clarendon Press, 1995), p. 13, et seq.
Ibid., p. 12. (The claim that the conception of distributive justice as impartiality is neutral as between conceptions of the good is, as Barry recognizes, one that some commentators have found implausible. See p. 13 and ch. 5 (on the criticisms of distributive justice as impartiality advanced in A. MacIntyre, Whose Justice? Which Rationality? (Notre Dame, IN: University of Notre Dame Press, 1988)).)
See J. Raz, Ethics In The Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), p. 241.
See, for example, I. Englard, ‘The System Builders: A Critical Appraisal Of Modern American Tort Theory’ 9 Journal of Legal Studies 27 (1980), 51–6. Accounts of Posner’s writing on tort such as the one offered by Englard place emphasis on the prominence Posner gives to the claim that the law is informed by a commitment to the pursuit of wealth maximization.
While this claim is indeed given prominence by Posner (see, for example, R.A. Posner, The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990), ch.12 and
R.A. Posner, Law and Legal Theory in the UK and the USA (Oxford: Clarendon Press, 1996), pp. vii and 39–54), he identifies himself as offering an analysis of tort (and law more generally) that presents it as informed by both consequentialist and deontological impulses.
See R.A. Posner, The Economics of Justice (Cambridge, MA: Harvard University Press, 1981), ch. 3.
See ibid., ch. 4. The emphasis on human agency in Weinrib’s account of negligence law is problematic. While describing himself as offering a non-instrumental account of the law, Weinrib comes perilously close to identifying the protection of human agency as an end served by negligence law. For further discussion of this point, see R.L. Rabin, ‘Law for Law’s Sake’ 105 Yale Law Journal 2261 (1996), 272
See, for example, Kent v. Griffiths and Others [2000] 2 WLR 1158, at 1169, where Lord Woolf MR describes existing doctrine as providing ‘tools not rules’. (This view of doctrine suggests a commitment to an adjudicative approach that was characterized by Karl Llewellyn as ‘the Grand Style’. On ‘Grand Style’ adjudication, see W. Twining, Karl Llewellyn and the Realist Movement (London: Weidenfeld & Nicolson, 1973), ch. 10.)
See D. Howarth, Textbook on Tort (London: Butterworths, 1995), p. v (emphasis added), where it is argued that, in tort, ‘the fundamental unit of the law is not the rule but the argument’.
See P. Cane and J. Stapteton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford: Clarendon Press, 1998), ch. 4 (‘Duty Of Care Factors: a Selection from the Judicial Menus’, by J. Stapleton), for a discussion of the very broad range of arguments bearing on duty of care questions in the law of negligence.
Ernest Weinrib, for example, could be expected to argue that a body of law that embraces arguments from both corrective justice and distributive justice is a conceptual monstrosity. See the discussion of Weinrib’s account of negligence law (and private law more generally) in D. Patterson, Law And Truth (New York: Oxford University Press, 1995), ch. 2.
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Mullender, R. (2001). Prima Facie Rights, Rationality and the Law of Negligence. In: Kramer, M.H. (eds) Rights, Wrongs and Responsibilities. Palgrave Macmillan, London. https://doi.org/10.1057/9780230523630_6
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