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If It's Not Faulty, Don't Fix It: Defending Fault in Negligence

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About The Author

Ming Lu Ang (Regular Writer)

Ming is a second-year law student at the University of Birmingham. Through writing for Keep Calm Talk Law, she hopes to further her understanding in various areas of law and be kept up to date with the latest legal and commercial developments. Outside the law, she enjoys foreign language dramas and sketching.

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There are some propositions which are so deeply entrenched in the instincts of lawyers and the public at large that they are never critically examined. The duty of care to avoid injuring our fellow men may well be the most deeply entrenched of all.

Lord Sumption

For the most part, English law has resisted the introduction of no-fault liability in negligence. This would see legal responsibility for an injury – personal, financial or otherwise – to another imposed upon the tortfeasor without carelessness or fault on their part needing to be proved. Only in a small and heavily constrained number of areas, termed areas of strict liability, does this occur; elsewhere across the law of negligence, a claimant must show that the defendant was at fault to succeed. 

However, in the Personal Injuries Bar Association Annual Lecture last November, Lord Sumption gave an extra-judicial endorsement of expanding the ambit of no-fault liability in the law of negligence. This speech revived a long-standing debate concerning this area of the law.

This article examines the arguments advanced by Lord Sumption and concludes that despite his best attempt to change the status quo, there is clear value in retaining a requirement of fault across the vast empire of negligence law, subject to tightly controlled strict liability exceptions that cover areas such as abnormally dangerous activities.  

An Overview of Lord Sumption’s Arguments

Lord Sumption’s speech identified several arguments for removing the fault requirement in negligence. Firstly, he noted how the current formulation of negligence – for all its discussion of fault – does not impose actual moral blame upon wrongdoers. Instead, the law applies an external and objective standard of care, such that one must act as the reasonable man would.

Indeed, as Lord Sumption observed, negligence usually occurs through ‘ignorance, incompetence or oversight’, none of which involves a consideration of the potential consequences of one’s acts, and none of which is morally blameworthy: they are ‘normal feature[s] of human behaviour’. It follows that any inclusion of a requirement of fault seems misplaced.

Lord Sumption’s second argument involved questioning the deterrent effect of negligence law that fault is supposed to facilitate. In his view, if negligence law can truly be said to incentivise people to take care for the safety of others (and therefore to play a role in preventing accidents), this role has been heavily diluted by criminal sanctions and/or the likelihood of reputational damage that might come with causing such harm. Fault thus seems unnecessary.

Lord Sumption’s final argument concerned the role of money and finance in negligence law. In 1973, the Pearson Commission found that most claims in negligence were brought against insured parties or public bodies – namely, parties who were not actually at fault. In this sense, retaining the concept of fault seems intellectually dishonest.

It was for these three reasons that Lord Sumption contended that the current requirement for the defendant to be at fault in causing the claimant’s personal injury – and the claimant needing to show this – lacks sufficient justification and should be removed.

In Depth: Scrutinising Lord Sumption’s Arguments

Argument One: The Objective Standard of Care

Outcome Responsibility

The tort of negligence works on the premise that a defendant should be held legally responsible for their actions because they have not met the standard of behaviour of a reasonable person, and thus caused loss to a claimant. As Lord Sumption observed, this appears to undermine the argument that human dignity is best vindicated through a fault-based liability system because liability may be imposed on a defendant who is not necessarily morally at fault. For example, in Nettleship v Weston [1971], a learner driver who caused injury by crashing a car was found guilty of negligence, and that her lack of driving proficiency offered her no defence.

However, the strength of this argument does not hold when regard is had to the theory of outcome responsibility advanced by Professor Tony Honoré. He contends that the objective standard of care and the fault-based system can be defended, because imposing liability without moral fault reinforces a person’s moral responsibility for their actions and the corresponding outcomes. Therefore, to accept a defence of a lack of skills or experience would threaten the legal subject’s status as a morally responsible agent: it would mean that the ability to take reasonable care for the interests of others could no longer be deemed a vital aspect of legal personality. Viewed from this perspective, a fault-based liability system reinforces tort law’s purpose of vindicating human dignity, while also compensating for the loss caused.

Protecting Human Dignity

As Hale LJ noted in Parkinson v St James and Seacroft University Hospital NHS Trust [2001], ‘the right to bodily integrity is the first and most important of the interests protected by the law of tort’. Indeed, protecting bodily integrity is a vital role of negligence law, taking on greater importance than the protection of economic interest. As Lord Sumption explained, tort recognises that violations of bodily integrity are:

[I]nherently actionable, subject only to special defences… or limitations on the recoverable damages, such as causation and remoteness. By comparison, purely economic interests are not inherently actionable, but only in specific and carefully circumscribed cases … The duty not negligently to injure other people is imposed by law, in other words by the state. Like any non-consensual obligation, it must ultimately be founded either on social utility or on collective moral values.

In light of this, Lord Sumption argued that the fault requirement defies collective moral values by stopping the invasion of bodily integrity from being sufficient in itself to justify compensation. He questions whether there are any moral justifications for the current law, whereby – to establish a claim in negligence – the defendant must be shown to have fallen below the standard of care required of him by the law. If the defendant – by good luck – does not fall below this standard, the claimant cannot receive compensation. This, Lord Sumption said, is unfairly arbitrary.

However, in advancing this argument, Lord Sumption overlooked the fact that compensating claimants is not the only purpose of the law of negligence: the law is also concerned with the vindication of human dignity. Accordingly, the violation of a victim’s bodily integrity by the defendant entitles the former to recover his or her losses.

The Irish case of Grant v Roche Products [2008] serves to illustrate this point. Here, the defendant company was the manufacturer of a drug that was prescribed to treat the acne of the claimant’s son. The claimant argued that the drug’s side effects caused his son to commit suicide. In response to this allegation, the defendant company offered the maximum amount of compensation claimable under Section 49 of the Civil Liability Act 1961 but refused to admit liability. The claimant rejected the defendant’s offer, alleging that the defendant company was attempting to circumvent a public trial. Hardiman J agreed, holding that:

It is quite contrary to any holistic view of human nature to fail to acknowledge that each and every one of these people will benefit from a resolution of the suspicions which they clearly hold, that the deceased was led to take his own life by the ingestion of a prescription drug known or believed to be associated with grave adverse consequences.

Therefore, as Stephen Darwall has suggested, it is clear that a fault-based liability system allows the claimant to articulate the injustice he has suffered at the hands of the defendant. In Grant v Roche Products [2008], this empowered the claimant to make the defendant company acknowledge the wrong they had caused to his son. This acknowledgement of wrongdoing by the defendant need not necessarily take the form of compensation. As Leslie Bender rightly notes:

Legally requiring harm-causers to compensate the parties they injure rectifies the social harm of permitting one person to injure another with impunity and prevents one party's well-being from being valued more highly than another's.

This view is further supported by the fact that in a civilised society, humans are not atomistic individuals – their freedom is curtailed by the freedom of others, such that there is a relationship of reciprocal care between each member of society. The causing of harm to another through negligence is, as Alan Brudner explains:

[T]he claiming of a right to more liberty in relation to the other than is consistent with the equal security of both in the conditions of effective freedom.

Lord Sumption’s speech therefore failed to take into account that the purpose of negligence law goes beyond compensation and also includes the vindication of human dignity. He overlooked that fault-based system better meets this broader purpose of the law by allowing for non-economic and indirect damages such as pain, suffering, and loss of income to the claimant to be taken into account. In contrast, a no-fault liability system which he advocates would fail in this respect, for it usually only takes into account economic and direct damages when determining the level of compensation.

Argument Two: Deterrence

It is widely accepted that the law of negligence may provide incentives to respect the safety of others by setting an objective standard of care, and imposing liability in damages for its breach. This contributes to the important public goal of accident prevention. This incentive functions well in the context of, for instance, safety engineers who deliberately apply their mind to the design of products or safety procedures.

However, Lord Sumption doubted whether the law has such deterrent effect in areas of heavy regulation (for example, health and safety regulations) and areas where liability is - at least for the most part – covered by insurance (for example, under the Employers' Liability (Compulsory Insurance) Act 1969 and the area of product liability). This is supported by empirical evidence from Don Dewees and Michael Trebilcock which suggests that the general deterrent effect of negligence law is difficult to discern, as it varies from sector to sector. Therefore, Lord Sumption argued that:

[E]ducating those whose job it is to design for safety [is] a great deal more persuasive than the law of tort.

Nevertheless, the adoption of a no-fault liability system is not an answer to this problem. It has been shown by Professor Rose Devlin that Quebec’s switch to a no-fault regime in 1978 resulted in a 9.62% increase in fatal automobile accidents, attributable largely to a decrease in the level of care taken by drivers. This calls into question claims that the current fault-based system has no deterrent effect. Therefore, while it is not possible to determine with certainty whether negligence law has any deterrent effect, it is at least possible that a no-fault system can make the situation worse.

Argument Three: The Impact of Liability Insurance

Lord Sumption suggested that the argument that human dignity is vindicated by a fault-based system may also be challenged by the possibility of insuring against liability in negligence. As Peter Cane notes, liability insurance diverts the costs of liability to those who are not morally responsible. This leaves the requirement to prove fault an intellectually dishonest one.

However, this argument ignores the fact that the claimant’s dignity is vindicated no matter the source of the compensation. The defendant’s only obligation following their commission of the tort is to pay the claimant; this obligation is discharged regardless of how the money is obtained. As the insurer is contractually obliged to indemnify the defendant for the consequences of the defendant’s negligence, it demands the insurer to keep its promise.

Granted, the insurer is neither the ultimate loss-bearer nor the defendant’s authorised agent meaning that claiming a bilateral redistribution between the claimant and the defendant seems tenuous. Nevertheless, as Hanoch Sheinman explains, liability insurance does not undermine vindication of the claimant’s dignity:

[T]he non-corrective redistributive institution of liability insurance presupposes liability to insure against. It is not essentially different from the liability [the defendant] would have under the pure tort law of old. That basic liability is still essentially corrective. 

The Need for Strict Liability Exceptions

To argue in favour for the retention of a fault-based liability system is not to deny that there are some exceptions which warrant the imposition of strict liability – the only example of fault-free liability in the law as it currently stands. These are activities deemed to be abnormally dangerous or ultra-hazardous but which are at the same time socially desirable.

One such example is the construction of the reservoir to provide power to a cotton mill in the classic case of Rylands v Fletcher [1868]. Here, the underground workings of the defendant’s reservoir were connected to the workings of the claimant’s mines; as a result, the water collected in the defendant’s reservoir burst the mine shafts and flowed into the claimant’s mines. The difficult-to-consistently-control risk of personal injury or property damage posed to others was obvious: the Rylands flooding followed at least two previous two high-profile dam failures, the Holmfirth Disaster and the failure of the Dale Dyke Embankment. Therefore, as John Goldberg and Benjamin Zipursky put it:

[T]he conspicuousness and magnitude of the risk [the defendants were] taking with respect to others render it fair to require such defendants to bear the costs of the injuries they bring about.

It is therefore possible to view strict liability as consistent with the purposes of negligence law advocated in this article, as these exceptions do not undermine the moral basis of the fault principle in a fault-based liability system. In this respect, the activities to which these exceptions relate can be considered those which both morality and tort law consider to have such stringent duties of non-injury that they give rise to strict liability wrongs. Therefore, their strictness do not represent an anomalous departure from the fault-based system.

Conclusion

Lord Sumption’s attack on the current position of English law – a fault-based liability system with exceptions of strict liability, applicable in certain, defined circumstances – overlooked, and did not properly deal with, a number of crucial arguments in favour of it. For one thing, the purpose of the tort of negligence is not only to compensate its victims, but also to vindicate human dignity. This requires the retention of fault as the standard for liability, as a no-fault system threatens to undermine this very purpose.

Ultimately, as Lord Sumption did himself accept, the notion of individual responsibility is deeply ingrained in the public’s consciousness. Across many areas of society, it is considered the moral duty of the person who injures another to make good their wrong no matter their moral culpability. Therefore, in a society where the notion of personal responsibility is deeply ingrained, the retention of a fault-based system that reflect this is imperative.

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Tagged: Justice, Supreme Court, Tort Law

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