Implications of Tort Law decisions1 Address to Northern Ireland Personal Injury Bar’s Inaugural Conference, County Down Lord Neuberger, President of the Supreme Court 13 May 2017 1. In the Fairchild case2, which I shall discuss later, Lord Nicholls of Birkenhead described legal concepts determining the appropriate scope of liability in tort, including duty of care, causation, proximity, and remoteness, as “afflicted with linguistic ambiguity”. And, as the equally formidable Professor Jane Stapleton has written, the legal reasoning in judgments in tort cases is often obscure, so that it is difficult to distil a coherent body of principles3. 2. I would suggest (not for the first time4) that this is unsurprising as almost all aspects of tort law, above all negligence, are based on policy. Of course, almost all legal principles can be said to be ultimately based on policy, but, given the very broad area which tort (in particular negligence) covers, and given the infinite variety of human life, any attempt to identify or distil clear principles in such an area is fraught with problems. Indeed, as the great Sir Frederick Pollock pointed out at the end of the 19th century, it is not even very easy to define what a tort is. As he wrote, “nothing seems easier than to [give] examples of torts, … [b]ut we shall have no such easy task if we are required to answer the question, What is a tort?”5 He went on to ask whether “we shall discover any general principles [of tort law] at all”, and said that he considered would be unlikely to happen6. 3. Analysis of tort cases appears to demonstrate a notable degree of disarray and a marked lack of reliable principle. Thus, what appears to be principle turns out, on examination, to be policy. A good example is to be found in the House of Lords Caparo decision7, which is part of the saga which started with Anns8 in 1977 (indeed, some might say it started with Donoghue 1 I am most grateful to Charlotte Gilmartin for her very valuable assistance in preparing this talk 2 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 A.C. 32 at [45], per Lord Nicholls of Birkenhead 3 Stapleton, Cause in fact and the scope of liability for consequences, L.Q.R. 2003, 119(Jul), 388 4 Some Thoughts on Principles Governing the Governing the Law of Torts, Singapore, 19 August 2016, https://www.supremecourt.uk/docs/speech-160819-03.pdf 5 Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law (4th ed 1895) chapter 1 6 Ibid 7 Caparo Industries plc v Dickman [1990] 2 AC 605 8 Anns v London Borough of Merton [1978] AC 728 v Stevenson9 in 1932). Caparo was, and in some quarters still is, regarded by many as finally laying down the test for determining whether a duty of care exists. To quote from the leading speech of Lord Bridge: “in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”10 The first aspect of that famous three-fold test, foreseeability of damage, involves a principle; and the second aspect, proximity, could, I suppose, just about be said to do so, although it involves a heavy dollop of policy; but the third aspect, fairness justness and reasonableness, it seems to me, is pure policy, and it may be said to subsume the first two ingredients in any event. 4. The “fair, just and reasonable” test was adopted and applied by the UK Supreme Court in the so-called Christian Brothers case in 201211 in relation to the question of whether it was right to impose liability on a defendant for the tort of a third party on the ground that the defendant’s alleged vicarious liability for the third party’s actions. This approach was specifically justified by reference to policy12. Two years ago, in the Michael case13, Lord Toulson said that Lord Bridge’s speech in Caparo “was not intended to be” seen as “a blueprint for deciding cases”14. But Michael may be seen as endorsing an even more pragmatic approach, as Lord Toulson said that: “The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see 9 Donoghue v Stevenson [1932] AC 562 10Caparo, p 617, per Lord Bridge of Harwich 11 The Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools [2012] UKSC 56, [2013] 2 AC 1, paras 34, 47 and 94 12 ibid, para 35 13 Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] 1 AC 1732. 14 Ibid, para 106. It is interesting that Lord Kerr’s concurring speech is very much based on the reasoning in Caparo - see eg paras 150-158 and 173 whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account.”15 5. Another recent example of the policy-based approach is the Supreme Court’s decision last year in Patel v Mirza16, where guidance was given as to how courts should deal with cases where the defendant seeks to avoid liability by raising a defence that the claimant’s case in some way rests on illegality. (The issue in the case was in fact concerned with contractual claims involving illegality, but the Court decided to give general guidance on the topic17). Rejecting the view of the minority who sought to articulate a unifying applicable principle, Lord Toulson, speaking for the majority six of the nine Justices, cited with approval18 an observation he had made in an earlier case19: “Rather than having over-complex rules which are indiscriminate in theory but less so in practice, it is better and more honest that the court should look openly at the underlying policy factors and reach a balanced judgment in each case for reasons articulated by it”. 6. So maybe we should not look for any principles, or at least we should not look for any but the most fundamental of principles. But some people might say that in recent years the courts have done their best to throw doubt on the correctness of even the most fundamental and elementary of principles. Any law student would tell you, or perhaps I should say that any law student would have told you, that causation is a fundamental ingredient of liability in negligence – ie that in order to succeed in a negligence claim, the claimant must show, albeit only on the balance of probabilities, that the defendant’s negligence caused the plaintiff’s loss – the so-called “but for test”. Thus in the 1968 Barnett case20, three nightwatchmen who had been poisoned by a colleague were negligently sent home by a hospital doctor and they 15 Ibid, para 102 16 Patel v Mirza [2016] UKSC 42, [2016] 3 WLR 399 17 ibid, para 2 18 ibid, para 69 19 ParkingEye Ltd v Somerfield Stores Ltd [2013] QB 840, para 52 20 Barnett v Chelsea & Kensington Hospital Committee [1969] 1 Q.B. 428, 438 to 439 subsequently died. As the evidence established that they would have died even if they had been properly treated, their relatives’ negligence claim against the hospital failed. 7. However, in subsequent cases, a purist might say that the crystal clear water in the well of principle has been polluted by the beguiling influence of public policy. Six years after Barnett, in the McGhee case21, the House of Lords upheld a claim by a plaintiff who contracted dermatitis after his employer had negligently failed to provide washing facilities after he had been exposed to clouds of abrasive brick dust, even though he could not prove that he would probably not have got dermatitis if the facilities had been made available. This was justified on the basis that it was enough that the employer’s negligence had materially increased the risk of the plaintiff getting dermatitis. Lord Wilberforce justified this on the ground that, given the uncertainty, “as a matter of policy or justice … it is the creator of the risk who … must be taken to have foreseen the possibility of damage, who should bear its consequences”22. However, 15 years later in both the Wilsher 23 and theHotson24 cases, the House of Lords refused to adopt such an approach, although it did not disapprove McGhee. As a result of this, I agree with Professor Oliphant25 that there would appear to be no clear criteria for deciding when the exceptional approach in McGhee is to be applied. 8. The material increase in risk approach was eagerly grasped by the House of Lords in the 2002 Fairchild case26, which has been described by Professors McBride and Bagshaw, not without arguable justification, as a “good example of the maxim ‘the road to hell is paved with good intentions’”27.