Tort claims

Victims of criminal offences causing personal injury can claim in tort against the criminal, but in the great majority of cases the criminal would not be worth suing. In its Third Report, the Criminal Injuries Compensation Board (CICB) (now the Criminal Injuries Compensation Authority (CICA)) reported that it had found the number of cases in which offenders would be worth suing to be seventeen, i.e. 0.7% of the cases which had by then come before the Board. By the time of the Seventh Report the number had dropped to 6 out of nearly 6,000 cases, i.e. about 0.1%. Just occasionally, tort liability may be established against someone other than the offender personally. For instance, the offender's employer may be vicariously liable in cases of fraud. In cases of personal injury, such liability will not often be established because criminal assaults and similarly violent conduct will not often be regarded as within the course of the offender's employment (so as to render the employer vicariously liable), but it may be in some cases.Personal tort liability may occasionally be imposed on the victim's employer, for example, where it is alleged that the employer had exposed the victim to unnecessary risk of criminal attack, for example, by sending a young woman to the bank to collect wages for a company's employees. As a general rule, the police cannot be sued by victims for allegedly negligent failure to apprehend criminals or to prevent crime.

The conceptual basis of tort law

The aim of this Part is to explain the main features of tort law as a system for compensating for personal injuries and death, and to examine its main theoretical defects as a compensation mechanism. We will focus on tort law because most claims for damages for personal injuries and death are ‘made in’ tort; although occasionally such a claim may be ‘made in’ contract or based on some statutory cause of action. The boundaries of a legal subject are not set by divine prescript but by the custom of lawyers. Tort law as a separate legal subject is largely a product of the systematizing activities of academic lawyers in the nineteenth century. This body of law deals with a variety of social and economic problems that may be classified in a number of different ways, for instance, by looking at the interest of the person who complains of some injury: are they complaining about deprivation of liberty; injury to their person or feelings; damage to property, or the invasion of land; damage to reputation or invasion of privacy; injury to relations between members of a family; damage to trade or business? Alternatively, problems may be looked at in terms of the cause of the injury: who caused it; was it caused intentionally, maliciously, negligently or without ‘fault’ on the part of anyone; did the injured person play a part in causing the injuries?

A third way of classifying problems is according to the relationship between the claimant and the defendant.

Fault liability and strict liability

The fault principle, as embodied in the concept of negligence, is not the only basis of legal liability for personal injuries and death, although it is, in practice at least, by far the most important. In this chapter we will consider modifications to and departures from the fault principle. Such modifications and departures are often said to impose ‘strict liability’ as opposed to fault liability. Whereas fault liability is based on a judgment that a person should have behaved differently (for instance, by taking certain precautions), strict liability does not involve any judgment that the person should have behaved differently. Putting the same point another way, fault liability is liability for the way a person behaved whereas strict liability is liability for consequences of a person's conduct. Strict liability has often been thought to be morally unjustifiable, even if it has its uses as a legal device – how can it be fair to hold someone liable for the consequences of behaving in a perfectly acceptable way? How can we justify responsibility in the absence of culpability? The best answer to this question appears to be that even in morality (as opposed to law) we sometimes accept responsibility and hold others responsible for things that were not our, or their, fault. For example, if a young child accidentally breaks a neighbour's window while playing ball, its parents might well feel that they ought (morally) to accept responsibility for the broken window and pay to have it replaced, even if they took all reasonable care in supervising their child.

The fault principle has traditionally been understood as a principle of morality, which can justify not only the imposition of liability for death and personal injury but also the assessment of compensation according to the full compensation and hundred–per cent principles. Grosser fault may even be seen as justifying the award of exemplary or punitive damages. But in moral terms, the fault principle might be thought to suffer from serious defects. It can also be attacked on social and practical grounds. In this chapter we consider various arguments that might be made against the fault principle as a basis for the payment of compensation to victims of personal injuries by those who inflict them.

The compensation payable bears no relation to the degree of fault

Under the fault principle, being required to pay compensation is a sort of penalty for bad conduct. In the criminal law, it is seen as a basic requirement of justice that ‘the punishment fit the crime’ in terms of the seriousness of both the offender's conduct and the consequences of that conduct. In tort law, on the other hand, there is no such idea that the compensation payable should be proportional to the tortfeasor's fault. Fault is like a magic talisman; once it is established, all shall be given to the injured party. It is generally immaterial whether the fault was gross or trivial1 or whether the consequences of the fault were catastrophic or minor.

Accident victims and tort claimants

Who actually makes tort claims and gets tort damages? How are these claims resolved? What proportion of people who could in theory make tort claims actually do so? In this chapter we investigate such important issues.

Cases reaching trial

According to the Pearson Commission, in 1974 some 2,203 cases of personal injury and death (less than 1% of the estimated number of tort claims) were actually tried in the courts of the whole of the UK. In England and Wales alone, the figure was 1,870. Of this figure of 1,870 cases reaching trial and receiving a full hearing, 1,169 were tried in the High Court, and 701 cases in the county courts. At the time these figures were compiled, personal injury and fatal accident cases constituted the overwhelming bulk of the work of the Queen's Bench Division. Indeed, the Pearson Commission estimated that nearly 80% of the work of this Division consisted of such actions. By contrast, personal injury actions formed a much smaller proportion of the business of county courts. This was still true in 1986 when, according to the Civil Justice Review, the number of personal injury trials completed was 1,400 in the High Court and 3,500 in county courts. As a result of subsequent reforms, the great majority of personal injury actions that reach court are now tried in county courts by circuit (senior) or district (junior) judges.

Introduction

A person cannot incur tort liability to pay damages for injury or damage suffered by another unless that injury or damage was caused by the former's tortious conduct. This is as true of strict tort liability as it is of fault-based tort liability. Causation of harm is essential to tort liability because tort law is a set of principles of personal responsibility for conduct. Tort law compensates the injured, but only if someone else was responsible for those injuries; and normally a person will not be responsible for injuries unless their conduct caused the harm. In other words, the tort system is a ‘cause-based’ compensation system. These deceptively straightforward statements raise complex issues which are usually dealt with by considering two questions: first, did the tortious conduct in fact cause the damage? Secondly, whatever the answer to the first question, ought the tortfeasor to be held liable for the loss suffered by the injured person? If the answer to the first question is ‘no’, then the answer to the second will usually, but not invariably, also be negative. But answering the first question affirmatively by no means always leads to the imposition of liability. The reason for this is expressed by the courts in a variety of ways: sometimes by saying that the damage was not foreseeable; sometimes by saying it was too ‘remote’; sometimes by saying the damage suffered is not of a kind recognized by the law; sometimes by saying that the defendant's negligence was not the ‘real’ or ‘proximate’ cause of the damage.

Compensation for accidents

This book deals with certain kinds of misfortune, and in particular with injury and damage arising from accidents. Although the term ‘accident’ is a convenient one, its meaning is not straightforward, and some further explanation of the way it is used in this book is necessary. First, the word ‘accident’ will be used to cover injury and damage inflicted intentionally (as when, for example, one person deliberately assaults another), even though neither the inflicter nor the victim may consider the injury to be ‘accidental’ in the normal sense. Secondly, the term will not be confined to the technical legal sense – in this sense, injury or damage would be accidental only if it was not a foreseeable consequence of a deliberate or negligent act.

Thirdly, we are sometimes reluctant to refer to injury or damage resulting from natural causes as accidental: we might hesitate to say that a house, the roof of which was blown off by a hurricane, was damaged ‘by accident’ (although we might say that a person hit by the debris suffered an accident); or we might hesitate to say of a person who died of leukaemia that they died accidentally (although if a person, while on holiday, contracts a rare viral disease and dies soon after, we might call the death an accident). Fourthly, the term ‘accident’ is often used to refer to injury and damage which is caused by a sudden, non-repetitive, traumatic occurrence; and in this sense it is contrasted with illness or disease, which often develops gradually and has no easily identifiable starting point.

Compensation

Some preliminary questions

So far in this book the word ‘compensation’ has been used loosely and in various contexts. We must now consider more carefully what is meant by the term, and ask why we compensate the victims of injury and disease. One possible answer to this second question is that widely held notions of justice and fairness demand it. Unfortunately, however, we have very little evidence concerning what people think about compensation for death and personal injury. Attempts have sometimes been made to ascertain common views by survey questionnaires, but the results are not particularly helpful. One writer concludes that ‘there seems to be rather little evidence that when asked, people actually do express consensus support for a faultbased compensation system’. Several (now rather old) surveys found that an overwhelming proportion of those questioned were in favour of damages being awarded for pain and suffering; but when it is appreciated that those questioned were themselves recent victims of road accidents, what is surprising is not the majority of affirmative replies, but the substantial minority who did not favour such awards – some 20% in one and around 30% in another. One US survey devoted to pain and suffering found widespread misunderstanding about the way damages are calculated and about the likelihood of receiving damages for pain and suffering. In England, a former trade union claims official once said that people injured in industrial accidents sometimes ‘can hardly be convinced’ that they are entitled to claim disablement benefit when they have suffered no loss of earnings.

The lump sum: predicting the future

Personal injury cases

Damages for personal injury and death typically take the form of a lump sum. The award or settlement is made once for all, and there is – except in rare cases – no possibility of increasing it or decreasing it later because of changes in the claimant's situation. In the great majority of instances where the injuries are relatively minor, this raises no real problem because the injured person is likely to be completely recovered long before the damages are assessed, and the whole episode is by then past history.

However, the lump–sum remedy does raise acute problems wherever a person suffers serious injuries, the effects of which may still be felt long after the damages are assessed. The Pearson Commission estimated that about 7.5% of all tort claims (including claims in fatal cases) involved future earnings losses after the trial or settlement of the claim; and this is the type of claim that raises problems with lump sums. In cases of continuing income loss, or where the injured person will have a continuing need for hospital, medical or nursing care, two sets of predictions have to be made at the date of trial or settlement in order to calculate an appropriate sum. First, it is necessary to predict what would have happened to the injured person if they had not been injured, a prediction which obviously cannot be verified or falsified by subsequent events.

The nature of the duty of care

The concept of negligent conduct, which was discussed in chapter 2, together with the notions of causation and remoteness of damage (which are discussed in ch. 5), may be said to constitute the concept of fault as embodied in the tort of negligence. But not all faulty conduct in this sense gives rise to legal liability. The tort of negligence, it is sometimes said, cannot be committed ‘in the air’. A person will be liable for negligent conduct only if that person owed the claimant a duty to take care. In the famous case of Donoghue v Stevenson Lord Atkin enunciated the equally famous ‘neighbour principle’ according to which a duty of care is owed to persons whom you ought reasonably to foresee as likely to be injured if you do not take reasonable care. On the basis of this principle it was, for many years, said that the test of duty of care was foreseeability. However, in the 1980s the House of Lords became dissatisfied with this test, especially in relation to cases involving liability for economic loss; and in a series of cases it developed a threefold test for the imposition of a duty of care: first, was it foreseeable that the claimant might suffer damage if the defendant did not take reasonable care? Secondly, was there a sufficient relationship of proximity between the claimant and the defendant? And, thirdly, is it just and reasonable in all the circumstances of the case to impose a duty of care.

The seven years since I wrote the preface to the sixth edition have been ones of rapid and momentous change in the tort system, affecting most particularly the financing and settlement of personal injury claims. Some of these changes were foreshadowed in the previous edition; but it was hard to predict the precise contours of the revolution that was about to be triggered by the abolition of legal aid for most personal injury claims and the consequent growth of the claims management industry. Phrases such as ‘ compensation culture’, ‘ blame culture’ and ‘ insurance crisis’ have become part of the common currency of public debate and political rhetoric in Britain. At the same time, social security provision for the disabled and compensation for victims of crime have continued to engage the concern and attention of the government and the public, both being under review as I write. Nor is it only in Britain that personal injury compensation looms large in legal and political debate. In the USA, for instance, asbestos and medical malpractice litigation are matters of intractable and acrimonious disagreement. In Australia, as a result of turmoil in the liability insurance industry, ‘ tort reform’ became, for several months in 2002, the hottest issue in domestic politics, leading to the appointment of a committee to review personal injury law and, in its wake, major legislation in all jurisdictions. Despite widespread dissatisfaction with the tort system, the past decade has (ironically, perhaps) seen its further entrenchment in the political economy of personal injury compensation.

The importance of settlements

The vast majority of tort claims are settled by negotiation and agreement between the claimant and the defendant's liability insurer, or, occasionally, the defendant personally, usually through the agency of solicitors on both sides. This process has been memorably called ‘litigotiation’. The Pearson Commission estimated from its various surveys that 86% of cases are settled without the commencement of legal proceedings (i.e. a claim form); 11% are settled after the commencement of proceedings but before the case is set down for trial; 2% are settled after setting down; and 1% are settled at the door of the court or during the trial, or are actually disposed of by trial. Many other surveys and studies confirm the general pattern of these figures.

On the basis of these facts, the tort system could be regarded as an administrative process handled by insurance adjustors and solicitors incorporating a ‘right of appeal’ to a court of law.

I started this book because I found the idea of human rights both attractive and unconvincing, if not positively dangerous. This ambivalence drove me to ask: can we/should we believe in human rights?

The last chapter has contended that different people will answer this question differently. Natural scholars, who regard human rights as inherent and inalienable entitlements, will respond: of course, we must believe in human rights! Protest scholars will give the same answer, but for a different reason: to them, human rights is the best language we have to set human beings free of oppression. Deliberative scholars do not think the issue is a matter of faith: they look at human rights as good political principles which have been agreed in some circles and hopefully will command greater and greater commitment. Finally, discourse scholars are sceptical: in their view the hype which surrounds human rights talk is misplaced; intellectually untenable and possibly morally counterproductive in inhibiting the imagination of more emancipatory projects.

I have come to the conclusion that I am mostly a discourse scholar. At the end of this book, my personal ambivalence towards human rights has not subsided. I am clearer, however, as to why I am not as enthused by the concept as others are, as well as to the logic of my position.

This book grew out of my attraction to and discomfort with the idea of human rights. When I led an Amnesty International group as a law undergraduate twenty years ago, the concept of human rights already seemed to me both desirable (or even necessary) and flawed. Since then I have never been sure which of these two aspects take precedence. If I stress the defects of the concept I immediately want to recall that the concept is important and cannot be dismissed altogether. Conversely, I do not wish to signify my attachment to the concept without highlighting that it is far, very far, from being a panacea. This book represents my attempt to sort out my persistent ambivalence towards human rights. It does so by seeking to answer the following two questions: Can we believe in human rights? Should we believe in human rights? I shall give my personal answer to these questions. I shall also provide an intellectual map of the way I understand current scholarship approaches the concept of human rights.

Human rights as an article of faith

According to a standard definition, human rights are those rights one has by virtue of being human. This definition suggests that human rights belong to every human being in every human society: all human beings have them, equally and in equal measure. Implied in one's humanity, human rights are generally presented as being inalienable and imprescriptible – they cannot be transferred, forfeited, or waived.

There is something presumptuous in writing a chapter which purports to read the European Convention in a Marxist light when one is versed, like me, neither in Marx's voluminous work nor in the many commentaries and theories it has generated. Still, this chapter could not have been omitted: first, because ‘the young’ Marx touched directly upon the ‘rights of man’ in an essay which has become very famous and, second, because the main idea of this text remains extremely pertinent today.

As the statement at the head of the chapter makes clear, Marx felt that the rights of man comforted man (he did not think much about women) in his egoism; as such the rights of man were not destined to have a place in the truly communal society which he did not doubt would one day emerge. Though Marx was not a fan of what we now call human rights, there is nonetheless a sense in which he was less scathing of them than Bentham: for Marx, human rights were not nonsense but a step in the right direction in the long march of humanity's history.

The human rights credo would have us believe that human rights are for every human being. Marxism alerts us that this is not so.