Abolishing Personal Injuries Law?

A Response to Lord Sumption

Jonathan Morgan, Senior Lecturer in Law, Corpus Christi College, University of

Cambridge

Lord Sumption has frequently delivered speeches that provoke public debate. His
2017 lecture to the Personal Injuries Bar Association will surely do so too. Its very
title, a “Project” of “Abolishing Personal Injuries Law”, is incendiary. The
provocation is welcome, and indeed overdue. As Lord Sumption observes, the high-
water mark of reform came with New Zealand’s Accident Compensation Act in 1972.
Although radical change was contemporaneously discussed, no other Commonwealth
jurisdiction abolished negligence in favour of an accident insurance scheme. 1 The
Pearson Royal Commission (1978) failed even to consider such a universal scheme. 2
Tort reformers such as PS Atiyah did not disguise their disappointment. 3 Professor
Atiyah (and his editor, Peter Cane) have continued to urge reform through successive
editions of Accidents, Compensation and the Law.4 But the last new initiative from
that quarter was Atiyah’s The Damages Lottery (1997). Since then, nothing has
changed and the debate has virtually disappeared from view (in England at least).
Lord Sumption has done tort lawyers, and law reform, a service by lending his
authority to its revival.
I hope I do not mischaracterise Lord Sumption’s position as follows: tort law
is a poor system for achieving its purposes; but despite this, it is likely to endure. The
endurance flows from tort’s moral appeal (i.e. requiring compensation for injuries
caused by another’s fault) and the attachment of the public to that moral principle
(and therefore to the tort system) (“profound social instincts”).
I agree with Lord Sumption that a strong case can be made for the abolition of
negligent personal injury claims, instead compensating accidents directly through
insurance (whether social or commercial). Unlike him, I doubt the strength of
society’s attachment to the moral heart of negligence law, given the way that the tort
system operates in practice. Against this however, some things of real value would be
lost were the “New Zealand route” taken. The “utilitarian” case for abolition (as Lord
Sumption calls it) is not so clear-cut. Negligence has a stronger deterrent effect than
his Lordship is willing to allow. Admittedly this could be replaced by regulation and
criminalisation were tort liability abolished, but that would be costly and its
comparative efficacy difficult to predict. Tort also has an important role in holding to
account public authorities and powerful private bodies. This “ombudsman” function
would also be lost were negligence abolished; although again, there are other legal
mechanisms to ensure accountability for injurious behaviour.
Tort law is, considered solely as a compensation scheme, outstandingly badly
designed (in theory) and staggeringly inefficient to operate (in practice). But
compensation is not tort’s only legitimate role. Once this is acknowledged, the case
for abolition is uncertain. Tort’s other social functions could rationally justify its
survival—although dubious moral sentiments (in my view) cannot. Given the
1
Although it is incorrect to view New Zealand as an isolated example: see e.g. S Macleod
and C Hodges, Redress Schemes for Personal Injury (Hart 2017).
2
Royal Commission on Civil Liability and Compensation for Personal Injury, Cmnd 4054
vols I-III (1978).
3
See e.g. PS Atiyah, “What now?” in DK Allen, CJ Bourn and J Holyoak (eds), Accident
Compensation After Pearson (Sweet & Maxwell 1979).
4
PF Cane, Atiyah’s Accidents, Compensation and the Law 8th ed (Cambridge 2013).
intractable uncertainty about the figures involved, a convincing case for reform would
require a major research project on the scale of the Pearson Commission—but with a
better-drawn remit. Only with rigorous empirical research could the true costs and
benefits of the tort system (and its abolition) could be weighed against each other.

The Utilitarian Case for Abolition: Reducing The Costs of Accidents

What should the law be trying to achieve, in the field of unintentional personal
injuries? We first consider the utilitarian view (ignoring for now morality and
corrective justice). From that perspective, the law would ideally prevent accidents
from happening while addressing the needs of those who still suffer accidental injury
—at the lowest possible administrative cost. As will be seen, those cost-reduction
goals are in tension. Tort law is not, of course, designed to meet them: its structure
and detail derives from corrective justice. Still, tort can be considered against the
cost-reduction metric. Tort law provides one way of balancing the competing goals.
It yields poor coverage of accident compensation at exorbitant cost; but it has
redeeming deterrent virtues (and other valuable social functions). Were tort
abolished, there would be losses as well as gains.
It is a truism that real-world empirical data are awaited to verify the theoretical
models of economic analysis. Any proposal to reform tort law (or any legal
institution) soon runs into this evidential problem. But the objection cannot be taken
too far or it would be a charter for blanket conservatism: that we should never change
anything because we cannot be sure whether the benefits will outweigh the costs.
Law is a practical institution with real effects on people’s lives. It has real costs and
benefits in its current shape. Law reformers cannot await the luxury of final empirical
demonstration before acting, if the status quo seems seriously defective. A lower
standard of proof is appropriate. If it can plausibly be demonstrated that change
would be for the better, all things considered, then reform can be supported on
practical grounds.
Guido Calabresi’s The Costs of Accidents (1970) influentially mapped the
field. Calabresi identified the social problems that required solutions (without
presuming that tort law was necessarily the right way to provide those solutions), as
outlined above. First it is desirable to reduce the number of accidents (i.e. through
deterrence). To the extent that accident reduction succeeds, this removes the cost of
accidents to society altogether. But since in practice accidents cannot be eliminated
entirely, the secondary goal is to address the costs of those which still occur (i.e.
through compensation). Calabresi emphasised that this is not simply the (moral) goal
of compensating “innocent victims”. From the economic perspective (i.e. ignoring
justice), it may be just as unsatisfactory to leave one culpable person to shoulder the
entire cost of the accident than it would be to leave that cost burden solely on the
victim. Calabresi argues that contrary to tort’s logic of shifting losses from victim to
culpable defendant, loss spreading is necessary to avoid the economic dislocation
when large losses are born by individuals (be they innocent or culpable).
It is unnecessary to examine Calabresi’s proposed solutions in detail here. In
brief, Calabresi argued for all costs of particular kinds of accidents to be allocated to
the party best able to prevent such accidents from occurring (i.e. at least expense): for
example drivers, manufacturers, surgeons, etc. These “cheapest cost avoiders” would
then have an inherent incentive to reduce accidents (since they would reap all the
savings from so doing), and ex hypothesi would do so more efficiently than anyone
else could.5 But as Calabresi accepts, the notion of deterrence through cost-allocation
directly conflicts with the requirement of spreading accident costs to avoid the
economic dislocation wrought by such concentrations of loss. There seems to be no
perfect way to solve simultaneously the problems of accident reduction and accident
cost sharing.
One response could be to sever any link between these two functions (which
would spell the end of tort, which has the linkage between culpability and
compensation at its heart). Instead, the deterrence of accident-causing behaviour
could become solely a matter for regulation and criminal prosecutions, with penalties
calibrated at a level to produce optimal levels of care (rather than being connected
with the costs of the accidents that result, as in tort—with the problem that this can far
exceed what any individual can bear). With deterrence removed to the criminal
sphere, the cost of the accidents that still happen could be spread as widely as possible
(perhaps across society as a whole, through tax). This would reduce the economic
dislocation of accidents to the absolute minimum, while guarding against mass
irresponsibility.
Something like this seems to appeal (in an ideal world) to Lord Sumption. He
views tort as a poor way of allocating the costs of accidents that do happen (which is
hard to deny). Lord Sumption argues that tort is, furthermore, a poor way of deterring
accidents. Also, he points to its very high cost (Calabresi too classified the operation
of any given accident-reduction system as a tertiary category of cost to be minimised).
If Lord Sumption is right, tort fails all three “cost-reduction goals. The case for its
abolition would be overwhelming. However, the picture is more complex than he
allows. It is not a case of straight “utilitarian” versus “moral” considerations. Even
the utilitarian case in unclear.
To take the “costs” in reverse order, tort is clearly more expensive to operate
than a state-run or private first-party insurance scheme. The expense is inherent. Tort
requires complex inquiries about responsibility—the defendant’s fault and causal
connexion with the accident (and the victim’s responsibility too, under contributory
negligence). Tort tailors compensation to each individual claimant’s needs,
calculating such future imponderables as earnings foregone, medical care required,
the value of “amenities of life” lost, etc. Lawyers present the case on both sides.
None of this comes cheap, and the expense is duplicated. Most defendants are
insured, and there are also costs associated with liability insurance and claims-
handling (fees of brokers, loss-adjusters, underwriters, re-insurance…)—although
some of that expense would be carried over if a private insurance scheme replaced tort
(as advocated in Atiyah’s Damages Lottery).
Even those who struggle to accept government bureaucracy as a paragon of
efficiency would have to accept that state support for the injured and disabled is
provided at much lower cost than the equivalent tort compensation. That flows not
from greater efficiency per se, but because the inquiry is so much simpler (no need to
establish cause or fault, no need for precise quantification of loss). Nor is the social
security process adversarial. The Pearson Commission provided telling figures.6 For
£1.00 spent on social security, 90p was paid to claimants and 10p on administrative
costs. But for tort, the sum was divided 54p in compensation and 46p in
5
Naturally identifying the “cheapest cost avoider” is crucial. It is intractably difficult. What
about an unsteady, drunken passenger injured when a negligently driven bus with poorly
designed brakes skids on an inadequately gritted highway? Cf J Stapleton, Product Liability
(Butterworths 1994) 139.
6
Cmnd. 7054-II, p207.
administration. Nothing in the interim (save, perhaps, judicial control over the costs
of litigation) suggests that the striking disparity will have diminished.7
Lord Sumption is surely correct, therefore, to identify the high administrative
costs of tort compensation as a signal drawback. Such costs are an inevitable
consequence of tort’s precepts of individual culpability. A simpler system could be
administered much more frugally (e.g. flat-rate compensation for anyone injured in an
accident, irrespective of cause or fault). Lord Sumption concludes, however, that this
would be unaffordable given wider eligibility for compensation.
That conclusion may be questioned. But this brings us to the second “cost of
accidents”, meeting the needs of the injured and minimising economic dislocation (i.e.
compensation and loss-spreading). To the extent that tort meets either of these goals,
it does so incidentally rather than by design. To state the obvious, the criterion for
tort compensation is that another person is legally responsible for the claimant-
victim’s injury. Inevitably that means that very many of those injured—we may say
the great majority—are ineligible. Most accidents are not another’s fault. Even in the
two areas that generate the majority of tort claims between them—accidents on the
roads and in the workplace—the proportion receiving tort compensation is relatively
small.8 Many kinds of accidents are excluded as a class from the tort system: very
rarely indeed does litigation ensue about accidents in the home, yet these caused some
29% of accidental deaths according to the Pearson statistics. 9 (Some, surely, must be
the fault of another but social norms (not suing family and friends) combined with the
absence of liability insurance explains such claims’ invisibility.) Then there is the
“accident preference”—the even greater rarity with which those suffering diseases
receive tort compensation.10 Both because diseases are not usually somebody else’s
fault, and the difficulty of proving causation even when a link is suspected by medical
science, only a tiny fraction of disease-sufferers receive tort compensation.
Thus only a small proportion of those who suffer injury and disease ever
receive tort compensation. (The compensation that these “lucky” few receive is, let
us remember, generous—restitutio in integrum tailored to their individual needs, both
financial and non-pecuniary, at significant expense.) To criticise tort for
compensating such a small fraction might seem unfair—as idle as complaining that a
case of champagne is not much use for putting out a fire. That is not what it is
designed to do. But still, all victims of injuries and disease suffer equally—the cause
of their misfortune (another’s fault or not?) affects their needs not at all. From the
perspective of need, it is unjustifiable that a small subset of victims has their needs
expensively met in full while the great majority receive nothing.11 From this
perspective, tort seems impossible to defend. With a fire raging, we need a fire
extinguisher.
Tort is not so unsatisfactory when we consider its effect at spreading the costs
of accidents. It is notorious that irrespective of the nominal defendant (who might be
an individual), tort damages are usually paid by liability insurers. Yet this spreading
phenomenon obtains in spite of the basic structure of tort law, not because of it. As a
7
Cf. Institute & Faculty of Actuaries, The Cost of Compensation Culture (2003) (one third of
NHS compensation bill consumed by legal costs).
8
10.5% of those injured at work received some tort compensation, as did 25% of those with
“motor vehicle injuries”—but only 1.5% of all other injury victims: Pearson Report (1978)
Cmnd. 7054-II, p22.
9
Cmnd. 7054-II, p8. Accidents at work caused just 6%.
10
J Stapleton, Disease and the Compensation Debate (Oxford 1986).
11
e.g. Sir W Beveridge, Social Insurance and Allied Services (Cmd 6404, 1942) [262].
matter of corrective justice, the claimant’s entire loss is shifted to the responsible
defendant. It undermines this basic structure if the defendant is permitted (or in
actually compelled) to offload the responsibility by insuring. 12 But whether or not
insurance is theoretically acceptable, it is undeniably widespread. Why sue an
uninsured individual? Thus the losses of tort claims are in practice spread across the
pool of insurance premium payers.
However (following on from the point above), it is of course only the cost of
tortious accidents that is spread through liability insurance. Those who are injured by
non-tortious causes (i.e. the vast majority) are excluded by the inevitable harsh logic
that “the loss lies where it falls” (i.e. on the victim). A rational loss-spreading scheme
would cover all those who suffer loss. It could be part of an extended social security
system, or first-party insurance, or a combination.
Seen from the compensation viewpoint alone, tort is an inevitable failure. Lord
Sumption, though, thinks that its replacement by a universal compensation scheme
would be much too expensive. This is not necessarily the case. The greater cost of
wider eligibility could be met by administrative cost savings, were tort liability
abolished. Wider eligibility would inevitably mean a lower compensation amount for
each accident victim compared to the current full compensation in tort. But it would
be more than the vast majority of accident victims recover currently (viz. nothing at
all). This would not just be robbing Peter to pay Paul—sharing out tort victims’ full
compensation among a (much) wider group. The lower administrative costs would
mean additional jam to be spread among accident victims—more thinly than at
present (for tort victims), but certainly more widely. The “dividend” is that more
actual compensation would be paid out for a given unit of funding, given smaller
costs of administering the payments.
Definitive data by which to calculate the point of cost neutrality do not
currently exist. Were another Royal Commission empanelled, its remit could be to
draw up cost-neutral proposals (or a number of proposals, at least one showing the
effect of replacing tort with a universal compensation scheme while holding constant
the existing level of funding). In short, the move to universal compensation need not
be prohibitively expensive: all depends on the detail.
Even if the cost to society were held constant, reform would raise fundamental
distributive questions. Is it better that all victims receive some compensation (but
none compensation in full) than the status quo in which tort victims are compensated
in full, but others receive nothing? The status quo has undeniable value for classes of
individuals who appear most likely to receive tort compensation (in this regard the
Pearson Commission was criticised for failing to confront the trades unions, as well as
the legal profession, when declining to recommend the abolition of tort law). But
choice from behind a Rawlsian Veil of Ignorance would favour the universal scheme.
Particularly, perhaps, if it promised to meet the financial needs of all victims of injury
and disease (non-pecuniary loss makes up the majority of tort compensation paid, 13
yet the extent to which it serves more than a symbolic purpose is questionable: it
should be excluded from a universal compensation scheme).
12
In addition to rules of professional bodies such as the GMC, “There are presently thirteen
pieces of legislation which require insurance to be taken out, concerning: nuclear
installations; marine cargo oil pollution; bunker oil pollution; wreck removal; maritime
passengers; motor vehicles; employment; riding establishments; dangerous animals; aircraft
operators; maritime risks; solicitors; and insurance brokers”: R Merkin, “Tort, Insurance and
Ideology: Further Thoughts” (2012) 75 MLR 301, 317.
13
66% of all damages payed out by insurers: Pearson Report Cmnd. 7054-II, p156.
 Does this mean that tort law is wholly indefensible as a matter of social policy,
and its replacement with a universal compensation scheme irresistible? Not
necessarily. Tort law has redeeming qualities that Lord Sumption does not
sufficiently emphasise. First, it plays some role in reducing the number of accidents
that occur (its deterrent effect). Furthermore, passing beyond Calabresi’s “utilitarian”
model , tort has other valuable functions which would be lost to society.

Tort Law and Deterrence

Contrary to what is sometimes believed, tort law continues to have a significant

deterrent effect. That is so notwithstanding the prevalence of liability insurance. 14
However, although the deterrent effect is real, its precise impact is difficult to
quanitify. So while incentives of real social value would be lost if tort were replaced
by an accident compensation scheme, entailing that the number of negligently-caused
injuries would increase, predicting the effect appears impossible.
Of course the fact that tort has a deterrent effect is not fatal to the case for
reform (although makes abolition costlier than Lord Sumption allows). Tort’s
deterrent effect could be replaced by enhanced regulatory and criminal sanctions. A
comparison between the regimes suggests, however, that tort can be a valuable
complement to such “public” regulation.
Deterrence on a significant scale might seem unlikely given how tort law
actually operates. Very few individual tort defendants pay damages personally.
When the tortfeasor was at work, the claimant will substitute (or at least join) the
negligent individual’s employer as defendant, relying on vicarious liability. Even
when an individual is the nominal defendant, as in road accidents (or, frequently,
professional negligence), damages will be paid by a liability insurer. Hence the
financial pain of judgment does not actually fall on the actual tortfeasor. Does the
combination of vicarious liability and insurance not blunt the sanction, reducing or
nullifying the deterrent effect of tort liability?
A number of reasons suggest this is not so. It is true that insuring people
against the consequences of their negligence may cause an increase in negligent
behaviour. This risk is well-known to insurers, under the rubric of “moral hazard”.
But it is in insurers’ interest to curb the effect—i.e. to preserve incentives to be
careful.15 A number of devices exist, including the following. The insured 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). Future premiums may increase
(perhaps significantly) if a claim is made—the insurer may make use of “experience
rating” of the risk posed by the insured. Forfeiting the “no claims bonus” is an
(easily-administered) example. Under both techniques, the insured knows that
significant negative financial consequences will follow from their negligently injuring
another, triggering a claim against the liability insurer. (Of course the financial
consequences are smaller than the full amount of the liability, or there would be no
point in insuring—but it is in the insurer’s interest to balance effective incentives
against affordability.)
At the limit, insurance cover may indeed be withdrawn and/or premiums
become unaffordable. The declining number of young (i.e. teenaged) drivers is a
14
cf GT Schwartz, “The ethics and economics of tort liability insurance” (1990) 75 Cornell
LR 313.
15
e.g. O Ben-Shahar and KD Logue, “Outsourcing Regulation: How Insurance Reduces
Moral Hazard” (2012) 111 Michigan LR 197.
notable social phenomenon.16 It may be partially explicable by sharply rising
premiums: since insurance is required to drive a car, prohibitive expense prohibits
driving. This should lead to a significant decrease in motor accidents, assuming that
high premiums derive from the harm inflicted by careless drivers in that age group.17
Insurers also intervene directly to require safety precautions. Well-known
examples are discounts on fire policies when an effective alarm system is installed, or
on household contents insurance when security measures against burglary are in
place. Lower motor liability insurance premiums for those who drive with a “black
box” computer shows more recent technology harnessed to this goal. Premiums are
subsequently adjusted according to the safety (speed, etc) with which the insured has
been observed to drive. Moreover, the computer can offer advice on safe driving in
the light of that performance. 18 While the technology is new, the idea is not. When
steam boiler insurance developed from the mid-19th century, for example, insurance
company inspectors monitored machinery and made safety recommendations.19 In a
1979 contribution praising the Pearson Report’s retention of the tort system, an
experienced underwriter noted that liability insurers were (apart from the under-
resourced factory inspectorate) “virtually the only organisations which go into
workplaces and give advice on accident prevention measures”; together with the
differential pricing of premiums this meant that tort law, mediated by insurance,
contributed to accident reduction.20
Vicarious liability also removes the burden of damages from the negligent
individual—this time onto his or her blameless employer. In theory the employer can
recover an indemnity from the employee. Its existence has been justified because its
absence “would tend to create a feeling of irresponsibility in a class of persons
[employees] from whom, perhaps more than any other, constant vigilance is owed to
the community”.21 But the sanction is a dead letter in practice—it would almost
certainly have been formally abolished by law were it not for the “gentleman’s
agreement” that employers’ insurers would not rely upon it.22
Has Viscount Simonds’ predicted “feeling of irresponsibility” come to pass?
It seems unlikely. Employers have other ways of controlling their workforces, and
reducing their propensity to inflict tortious harm, apart from the crude sanction of the
Romford Ice indemnity. They can and do educate and train, issue instructions,
supervise work, and impose disciplinary sanctions upon the disobedient, reckless or

16
Among 17-20 year olds, 29% held driving licences in 2014 compared to 48% in early
1990s.
17
Young drivers (17-24) were involved in c. 9,000 serious injuries and 800 fatalities in 2000,
compared with 4,500 serious injuries and 350 fatalities in 2012: Department for Transport,
Facts on Young Drivers (2014).
18
e.g. “You can monitor your driving and receive tips from us via our Driver App”:
https://www.rac.co.uk/insurance/car-insurance/black-box-insurance [7 June 2018].
19
See J Morgan in M Martín-casals (ed), The Development of Liability in Relation to
Technological Change (Cambridge 2010) at
20
PJ Sherman, “The Pearson Report and insurance” in Accident Compensation After Pearson
(above) 129-130.
21
Lister v Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555, 579 per Viscount
Simonds.
22
For a case falling outside the agreement: Morris v Ford Motor Co [1973] Q.B. 792; cf
Tony Weir’s posthumously-published criticism, “Subrogation and indemnity” [2012] CLJ 1,
4. The indemnity has been abolished elsewhere in the Commonwealth, e.g. Employees
Liability Act 1991 (NSW) s 3 [sic].
lax. That the employer stands to be vicariously liable for any such torts provides a
clear incentive for employers to take such action.
Indeed, it may be argued that this sort of “organisational liability” provides a
superior deterrent compared to leaving liability on individual employees. Suggested
reasons include the following. First, many individual employees lack substantial
assets making them de facto judgment-proof (very unlikely to be sued). Thus
whatever incentives tort creates will largely be ignored by such individuals.23
Employers are more likely to be worth suing, and so cannot afford to ignore tort.
Moreover, secondly, employers have greater capacity to respond to the incentives. 24
Especially when the employer is a large sophisticated organisation, it will have better
appreciation of the risks of accidents and be better able to formulate and implement a
reduction strategy, compared to an individual employee. Thirdly, as a matter of
enforcement, employers are better able to monitor and discipline negligent employees
than is the court enforcing negligence liability. 25 The employer uses real-time
supervision and direct control of the workforce to further the goal of accident-
reduction (among many other goals). The court must rely on ex post facto
reconstruction; plus, as seen, in practice litigation against individual employees (in a
world without vicarious liability) would be rare.
Despite first appearances it is therefore quite possible that liability insurance
preserves the incentives for careful behaviour that tort law creates, 26 and vicarious
liability might even strengthen them. There is some concrete evidence to support the
theoretical claims. But it is far from conclusive. Dewees, Duff and Trebilcock aimed
to analyse comprehensively the extant empirical evidence in 1995.27 They found
some support for tort’s deterrent effect, but studies were equivocal. Perhaps the most
telling evidence comes from comparative studies examining the actual effect of
abolition of tort claims. In New Zealand there was no surge in accident rates after the
1974 revolution: if anything the reverse (road accident rates continued to fall after the
abolition of negligence claims, although that was probably attributable to stricter
enforcement of (e.g.) drink-driving laws).28
Given this contradictory evidence, several commentators have shared Lord
Sumption’s conclusion that tort has negligible deterrent effect. For Steve Hedley
“Tort is therefore largely obsolete as a tool for public safety” and ripe for abolition. 29
But in my view, the correct response to the unsatisfactory evidence is for deeper
inquiry into the truth of the matter. Outright dismissal of “tort as deterrence” is
inconsistent with some empirical evidence and prominent debates about the scope of
liability.
In the longstanding doctrinal controversy about public authority liability all
sides assume that tort law affects decision-making. But for good or ill? Many courts
23
e.g. Alan O Sykes, ‘The economics of vicarious liability’ (1984) 93 Yale LJ 1231.
24
S Shavell, Economic Analysis of Accident Law (Harvard 1987) 173
25
Shavell ibid.
26
R Merkin and J Steele, Insurance and the Law of Obligations (OUP 2013) 30-31.
27
Don Dewees, David Duff and Michael Trebilcock, Exploring the Domain of Accident Law:
Taking the Facts Seriously (New York: OUP 1995).
28
C Brown , ‘ Deterrence in Tort and No-Fault : The New Zealand Experience ’ ( 1985 ) 73
California
Law Review 976.
29
S Hedley, “The Unacknowledged Revolution in Liability for Negligence" in S
Worthington, A Robertson and G Virgo (eds), Revolution and
Evolution in Private Law (Hart 2018, forthcoming) 105-106 (and references therein).
have reasoned that tort could undesirably distort public authority behaviour. Often
this is dubbed the “over-deterrence” argument. The locus classicus is Lord Keith’s
speech in Hill v Chief Constable of West Yorkshire. His Lordship reasoned that since
the police were already motivated to catch criminals using their “best endeavours”,
superimposing tortious sanctions would do little good and could conversely produce
“a detrimentally defensive frame of mind”.30 The concern has been re-iterated by
senior judges in a number of contexts, 31 including police investigations.32 But there
have always been powerful voices the other way.33
The pendulum is now swinging away from “defensiveness”. In Michael v
Chief Constable of South Wales, another consideration of police negligence, Lord
Toulson was inclined to doubt the likelihood of “defensive” policing; 34 in Robinson v
Chief Constable of West Yorkshire, Lord Reed sidelined the whole history of “policy”
reasoning in Hill and the following cases (as a regrettable consequence of the Anns
decision).35 On the other hand, Lord Toulson immediately went on to accept that
liability could affect police priorities in a way that would not be in the public interest.
In Robinson, Lord Hughes disagreed with Lord Reed, considering that the risk of
defensive policing was “inevitable” and its legal relevance too authoritatively
established to ignore.36
The debate continues. It is probably without end. Lord Toulson observed in
Michael that the “only consequence of which one can be sure” is that liability has
“potentially significant financial implications”.37 Beyond that, little hard evidence
exists. The courts have to choose how to respond to that uncertainty. They could
decide that predictions (whether positive or negative) about the effect of liability must
be proven by evidence, like any other fact, and in its absence refuse to speculate. 38
Much judicial reasoning, for example when considering the impact of legislation
alleged to breach the Human Rights Act 1998, would be ruled out by such a stern
approach. A defensible judicial response to uncertainty might be to proceed
cautiously: placing some weight upon a sufficiently plausible case for a significantly
damaging consequence. That would mirror the “precautionary principle” which
forms the basis of European Union environmental law. 39 When the threatened harm is
grave enough, it would be imprudent to await conclusive proof before taking action
against it. In any event, “common-sense intuitive judging about social facts” is
endemic in tort reasoning.40 The “defensive administration” policy is certainly
consistent with the courts’ general approach.
30
[1988] AC 53, 63. Immediately continuing: “The possibility of this happening in relation
to the investigative operations of the police cannot be excluded” (emphasis added).
31
e.g. X (minors) v Bedfordshire CC [1995] 2 AC 633 (child welfare) (Lord Browne-
Wilkinson), followed in CN v Poole BC [2017] EWCA Civ 2185, [46]-[47], [94] (Irwin LJ).
32
Van Colle v Chief Constable of Hertfordshire; Smith v Chief Constable of Sussex [2008]
UKHL 50; [2009] 1 A.C. 225.
33
e.g. Dorset Yacht Co Ltd v Home Office [1970] A.C. 1004, 1033 per Lord Reid (prison
officers); Capital and Counties Plc v Hampshire CC [1997] Q.B. 1004, 1043-4 per Stuart-
Smith LJ (fire brigade).
34
[2015] UKSC 2; [2015] A.C. 1732, [121].
35
[2018] UKSC 4; [2018] 2 W.L.R. 595; Anns v Merton LBC [1978] A.C. 728.
36
Robinson [111]-[113].
37
Michael [122]
38
Perrett v Collins [1999] P.N.L.R. 77, 114-115 per Buxton LJ (effect on aircraft
classification society).
39
Treaty on the Functioning of the European Union, Art 191(2).
 Our present concern is not to resolve the “defensive administration” debate but
to expose its premises and controversies. Participants in the debate accept that tort
liability affects administrative behaviour. The difficulty is that the effect could
plausibly be either positive (encouraging careful policing, etc), or negative (the “over-
defensive” mindset)—or the two could cancel each other out. Few though have
suggested that liability is just ignored. To postulate that assumes a disregard for law
(and prudent financial stewardship) that would be worrying for public authorities to
adopt.
In that cliché of academia, the conclusion is that further studies must be
undertaken. It should be emphasised some empirical research exists, not all involving
public authorities. One study argues that (American) playgrounds have been made
safer—and also more stimulating for children—owing to the incentives of tort
liability.41 In the public context, one study found significant impact of a landmark
ruling holding firemen liable for negligent misfeasance.42 Interviews revealed that a
number of fire brigades had reviewed their procedures in a way that brought positive
safety benefits: as had the greater sense of accountability among senior decision-
makers.43 But the study cautioned against any direct straightforward linkage between
tort liability and changes in behaviour. Another (American) study found that liability
for “constitutional torts” has a significant impact on police behaviour—
notwithstanding and indeed partly owing to the prevalence of insurance against such
liabilities.44 Interviews with insurers and police showed how the former significantly
“shape police behavior—[and] influence policies, practices, and personnel
decisions”.45 Studies have also considered the effect of administrative law (judicial
review). The Law Commission summarised this empirical research in its consultation
on public authority liability. 46 It is disappointing, if unsurprising, that the
Commission failed to undertake new systematic research into this hotly debated
question. Authoritative evidence is needed to resolve it.
That point holds a fortiori for the wider “project”. Before the social upheaval
of replacing tort with a no-fault scheme, it would be necessary to establish the value
of what would be lost (i.e. tort’s deterrent effect). The efficacy of alternative means
of producing those effects must be studied too—regulation and the criminal law.
How effective would this be (and what would it cost), by comparison with tort law?
It is unsurprising that without any rigorous empirical study, the comparative question
is intractably controversial too.
The interaction and comparison with public regulation vexes would-be tort
reformers—and also the controversial defence of regulatory compliance in product
liability claims.47 Is a product designed to comply with the safety standards laid down
by the relevant regulatory body for that reason not defective? The question has
started to receive attention in the UK. While there is no defence of regulatory
40
K Burns, “`In this Day and Age': Social Facts, Common Sense and Cognition in Tort Law
Judging in the UK” (2018) 45 Jo Law & Soc 226.
41
BH Barton, “Tort reform, innovation, and playground design” (2006) 58 Florida LR 265.
42
Capital & Counties (above).
43
J. Hartshorne, N. Smith & R. Everton, “‘Caparo under fire’: A study into the effects upon
the fire service of liability in negligence” (2000) 63 MLR 502, 517.
44
J Rappaport, “How private insurers regulate public police” (2017) 130 Harvard LR 1539.
45
Ibid 1549.
46
Law Com CP 187, Administrative Redress: Public Bodies and the Citizen (2008),
Appendix B.
47
Richard Goldberg, Medicinal Product Liability and Regulation (Hart 2013), ch 7.
compliance per se in the European product liability regime, 48 “In an appropriate case,
compliance with [regulatory] standards will have considerable weight; because they
have been set at a level which the appropriate regulatory authority has determined is
appropriate for safety purposes”.49 That the design of an artificial hip joint had been
approved as “acceptably safe” by “the relevant regulators, acting in the public interest
and on the basis of full information”, has accordingly been held “powerful evidence
that the level of safety of the product was that which persons generally were entitled
to expect”.50
In the United States considerable attention has been paid to the pre-emption
(or not) of product liability by regulatory compliance. Partly the answer turns on the
constitutional competence of federal regulators (e.g. Food and Drugs Administration)
and its interaction with (state) tort law. The result is that while liability for drugs does
not enjoy blanket pre-emption,51 there is such a defence when a generic drug has
received regulatory approval.52 This awkward distinction reflects an underlying
tension. The FDA itself has changed its view. It previously welcomed tort liability as
complementary to its function, but since 2002 the FDA has argued that federal
regulation is undermined by applying a different standard in product liability claims.
In Wyeth v Levine (rejecting the pre-emption defence for non-generic drugs), Stevens
J approved the position that the FDA had “long maintained” previously—viz. that tort
liability complements regulation, “especially in the postmarketing phase as new risks
emerge … [by] uncover[ing] unknown drug hazards”.53
With their different procedural features, regulation and tort liability may well
be complementary.54 Regulators obviously enjoy expertise, particularly important in
the field of emerging technology. They can develop coherent policy across the field
of activity regulated, employing “a broad and sophisticated brokering of social costs
and benefits”.55 Tort law can apply only sporadically (through the hazards of
litigation) with non-specialist courts deciding questions of liability in an isolated, ad
hoc way. But regulatory approval (for new drugs etc) tends to happen once and for
all; realistically there cannot be constant re-appraisal of all products. So if unexpected
side-effects occur later on, tort liability is more likely to provide the incentive for
manufacturers to take appropriate safety action. As Lyndon argues, the common law
process is a “learning system”, tort law’s “knowledge” expanding as experience
accumulates. Each datum arises from the rich context of a real accident, by
comparison with abstract pre-marketing regulatory approval. Thus the “fragmentary”
nature of tort can be a virtue. Lyndon also points out that accounts of regulation
assume idealized qualities of wisdom and information, which agencies in the real
world (faced with a mountain of products to approve, and limited resources) struggle
to replicate.
Conclusions are necessarily tentative. Tort liability has a significant effect on
those subject to it (probably, sometimes). Its influence on behaviour persists
48
cf. Consumer Protection Act 1987 s.4(1)(a) (defence if a defect is attributable to
compliance with legal requirement).
49
Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB); [2018] Q.B. 627, [98] (and
see [100]-[101]) per Hickinbottom J.
50
Ibid [124].
51
Wyeth v Levine 555 US 555 (2009).
52
PLIVA Inc v Mensing 564 U.S. 604 (2011).
53
555 US 555, 578-579.
54
Mary L. Lyndon, “Tort Law and Technology” (1995) 12 Yale J. on Reg. 137.
55
Ibid 153.
notwithstanding insurance and vicarious liability. It cannot be assumed that
government regulation would be a perfect replacement for tort’s deterrent effect. In
addition to the requirement for well-resourced regulators and enforcement, the
dynamic nature of the common law (applying broad standards to concrete cases ex
post facto) has certain structural advantages as a deterrence mechanism. 56 But as soon
as we descend from such generalities to attempt to measure these effects, the lack of
robust systematic evidence poses an insurmountable obstacle. Any proposal for
radical retrenchment of the tort system would need support from better evidence than
that currently extant—probably research specially commissioned for the purpose.

Tort’s Other Social Functions: Accountability

Tort has other dimensions of social value. Even if we assume that some combination
of compensation scheme and regulation could provide optimal accident deterrence
and compensation, at lower administrative cost, society might still be impoverished
by the abolition of tort claims for negligent personal injury. In particular, negligence
claims can enable victims to hold powerful bodies to account for the harm that they
do. The value of this cannot be quantified in cash terms. This is a further
complicating factor for the would-be tort reformer. As with deterrence however,
other mechanisms exist for holding bodies to account for such harm—arguably more
appropriate ones than negligence litigation. As Professor Hedley says, tort must not
be considered in isolation: it is no longer the primary social mechanism for
accountability (or compensation or deterrence).57 Against this, tort potentially retains
some role.
Recovery of compensation motivates the great majority of tort claims, but not
all. A public finding of fault is sometimes the main goal. This is tort law’s
“ombudsman” role. As the term suggests, such claims tend to be brought against
institutions and individuals with particular power to harm, or save from harm.
Medical professionals (and through them the NHS) and the police are paradigm
examples. A number of examples bear this out.
In the Hill case (mentioned above), the plaintiff was the mother of a murder
victim and publically stated that she would donate to charity any damages awarded:
her reason for bringing the claim was to obtain an investigation into the failings of the
police manhunt for the “Yorkshire ripper”. Another clear example of the irrelevance
of compensation is Ashley v Chief Constable of Sussex.58 The claim was brought by
the relatives of a man fatally shot by armed police. The constabulary admitted
liability for negligence and undertook to pay full compensation; this offer was
rejected by the claimants, who wished to pursue a claim for battery (i.e. intentional
killing without lawful excuse). The House of Lords held that the claimants had a
legitimate interest in pursuing the battery claim even though no more compensation
would be awarded if that claim succeeded. But it would vindicate the deceased’s
right not to be unlawfully killed.
Litigation over the death of extremely young children (e.g. perinatal fatalities)
cannot primarily be explained by the desire for compensation either. The callous
logic of the loss principle denies the child’s estate recovery for lost earnings (too
speculative to quantify) or any award for “pain, suffering and loss of amenity” when

56
See further Ben-Shahar and Logue (above).
57
Hedley (above) passim.
58
[2008] UKHL 25; [2008] 1 A.C. 962
death occurred quickly.59 Often the only award will be for funeral expenses and the
parents’ statutory bereavement payment.60 Given the small sums involved (especially
compared to the cost of litigation), parents must often bring such claims to hold to
account those responsible for their child’s death.
It will be noted that since recovery of compensation is of (at most) secondary
importance in the situations just described, it is of little relevance that a negligent
doctor or police constable (etc) does not pay damages personally (compensation will
come from their insurer, employer, or employer’s insurer). When obtaining a public
hearing and vindication is the main point of the claim, insurance and vicarious
liability do not undermine it. Conversely, if tort claims were abolished (to be
replaced, let us assume, by a generous universal compensation scheme), the
availability of compensation would not offset the loss of the right to claim.
How great would this loss be? A number of arguments suggest it would be
relatively modest. There are other mechanisms of accountability. These might be
superior since, secondly, negligence litigation is a flawed vehicle for “ombudsman”
claims. While this cannot be established exhaustively here, a number of examples
support a sceptical view of tort’s comparative importance in ensuring accountability.
Broadly we can identify political, professional and criminal sanctions for the careless
infliction of harm.
When a public authority is alleged to have failed in its duty to protect the
public, it will be politically accountable (to a local or police authority, or to ministers
and through them to Parliament). Aggrieved citizens can raise concerns with their
elected representatives. There is no direct right for the individual to initiate
investigations, of course. But civic duty and political expediency combine to ensure
that politicians must take serious the concerns of the electorate. In serious cases
involving systemic failure and/or significant fatalities, public inquiries may be set up
with wide remits to report on what went wrong, along with recommendations to avoid
repetition. Commissions of inquiry are usually set up following major British military
engagements. Major disasters, too, are normally followed by a full-scale public
inquiry, typically chaired by a senior judge.
Such public inquiries have certain advantages that a tort claim inevitably
lacks. They typically hear evidence from a much wider group of interested parties.
They are not limited to establishing whether a certain individual or group was
negligent (in a way that caused actionable damage to the claimant): the remit usually
runs much wider. Thirdly, even in judge-led inquiries no questions are barred to the
inquiry by concerns of non-justiciability. Inquiries are not inhibited from criticising
government policy (and levels of public funds allocated to particular activities); quite
the reverse. These advantages have been noted by judges who are, by comparison,
sceptical of tort’s value as an “ombudsman”.
In the Hill case, Lord Templeman disapproved of the plaintiff’s attempt to
obtain a public inquiry into the mis-handled hunt for her daughter’s murderer by a
claim in negligence.61 A similar scepticism is evident in Lord Mance’s dissent in
Smith v Ministry of Defence.62 Lord Mance feared that to decide whether the
government had negligently supplied inadequate equipment to soldiers (with fatal
consequences) would necessitate inquiry into controversial political decisions about
59
e.g. Hicks v Chief Constable of South Yorkshire [1992] 2 All E.R. 65.
60
Fatal Accidents Act 1976 s 1A.
61
[1988] AC 53, 64-65. Note the existence of the Independent Office for Police Conduct
(successor to the Police Complaints Authority extant in 1987).
62
procurement, in particular questioning “the setting of difficult priorities [by the
government] for the often enormous expenditure required, to be made out of limited
resources”.63 Justiciability remains a limiting factor for tort claims. The
constitutional and practical reasons for this judicial restraint do not inhibit inquiries
designed precisely to uncover the truth and draw lessons from it. The Chilcot
Inquiry’s investigation into the standard of military equipment and preparation in Iraq
(the context for the Smith claims) demonstrates this.64
Some inquiries are a standard legal requirement, not a branch of sporadic
political accountability. There must be a coroner’s investigation into all violent,
unnatural or unexplained deaths (and those in state custody).65 The deaths of
individual service personnel are subject to coroner’s inquests on the repatriation of
their bodies to the United Kingdom.66 During the Iraq and Afghan conflicts numerous
inquests were held by the Coroners for Oxfordshire and Wiltshire (the locations of
RAF Brize Norton and RAF Lyneham). Many of those inquests and the verdicts
attracted public attention for the coroners’ criticism of government failings in training,
equipment or other protection of British personnel. Coroners have long been
empowered, and since 2013 obliged, to issue Reports on Action to Prevent Future
Deaths, informed by the evidence heard in a given inquest. The reports are sent to
those in a position to take such action; those recipients are obliged to publish a
response detailing what action (if any) will be taken, and when. 67 Such action reports
are frequently issued.68 Thus, coroners’ inquests have the express function of
improving safety, as an adjunct to their factual investigative role. However, the Chief
Coroner stresses that such Action Reports should raise concerns but not attempt to
impose solutions; nor should they attempt to apportion blame.69
In short, coroners’ inquests and the (less common) major public inquiries
establish what went wrong and draw lessons from it. Their procedure is designed to
investigate those matters. A tort “inquiry” is limited to the question of negligence,
with battle joined on that point alone. The court has no jurisdiction to find facts save
those directly relevant to legal liability. Nor is it within the court’s jurisdiction to
issue recommendations about future safe practice. While tort may have a deterrent
effect, that does not empower courts to promulgate safety codes. It is true that
inquests and inquiries either cannot or will not hold particular individuals legally
responsible for a given death or accident. Such individualised “justice” is, by
contrast, at the heart of a tort action. The personalised attribution of fault by a
successful negligence claim would then be lost if it were replaced by a compensation
scheme. How much value such personal attribution adds to inquests and inquiries
may be questioned, however.
Personal responsibility is at the heart of the sanctions imposed by the criminal
law (and by professional regulatory bodies). The police marksman or soldier who
63
Ibid [128].
64
Report of the Iraq Inquiry (HC 264, 2016) Section 6.3, 13 and 14.
65
Coroners and Justice Act 2009, s.1(2).
66
In addition there may be a Service Inquiry into the death, chaired by a senior military
officer: Armed Forces (Service Inquiries) Regulations 2008.
67
Coroners (Investigations) Regulations 2013, Regs 28-29.
68
They are published under categories including Health and Safety; Care Homes, Community
healthcare and Hospital; Police; Products; Roads. See: https://www.judiciary.uk/related-
offices-and-bodies/office-chief-coroner/pfd-reports/
69
Chief Coroner, Guidance No 5: Reports to Prevent Future Deaths (updated edition)
(Ministry of Justice, 2016). Again, the Chilcot Inquiry’s remit was not so limited.
shoots without legal authority may be tried for murder. A grossly negligent doctor
may be guilty of manslaughter. All drivers are potentially subject to prosecution for
causing death by dangerous driving. By contrast with tort, the sentence imposed is
personal to the defendant. Two ubiquitous features of tort claims that undermine
tort’s corrective justice pretensions are absent. Defendants are not insured against
criminal liability: plainly it would be against public policy to attempt to do so.
Vicarious liability is unknown in the criminal law. Attempts to adapt criminal law to
collective organisational wrongdoing have been problematic, as the history of
corporate manslaughter shows.
Arguably then, criminal law is a superior form of individual accountability.
But perhaps tort can complement its role. First, simple negligence is rarely sufficient
mens rea for serious criminal offences. A greater degree of culpability is required for
criminality—this is the very definition of “gross negligence manslaughter”. 70 So tort
alone can vindicate the victim harmed by “mere negligence”. Sometimes at least (as
in Hill, or some child fatality cases), claimants bring vindicatory actions in such
circumstances. This possibility would be lost if negligence claims for personal injury
were abolished. However assuming that (as in New Zealand) the intentional trespass
torts were retained, a good deal of misconduct by police and military authorities
would remain within tort law’s remit.71 Medical negligence would arguably be the
greatest accountability loss.
A second complementary feature is the tort victim’s power to initiate a claim,
whereas prosecutorial discretion determines whether an individual faces criminal
charges.72 A number of tort claims brought against organs of the state in the security,
military and foreign affairs context could be explained on that basis: for example Bici
v Ministry of Defence (liability in battery and negligence for shooting during UN
peace-keeping operation in Kosovo);73 or Belhaj v Straw (allegations of Foreign
Secretary’s complicity in torture—the torts including misfeasance in public office,
conspiracy to injure, and negligence).74 In another jurisdiction, the “Mothers of
Srebrenica” have had some success in their group tort action against the Netherlands
for failing to prevent the 1995 massacre by the Bosnian Serb army. 75 According to
the logic of tort, however, the damages awarded have varied according to particular
individuals’ chance of being rescued from the Serbian attack (i.e. even had the Dutch
army acted competently it would not have saved everyone). Arguably such
distinctions between victims are “incomprehensible” for claimants seeking redress for
historic state wrongs.76 From that perspective, tort again appears an imperfect
investigatory and vindicatory institution.

70
Reg v Adomako [1995] 1 A.C. 171.
71
e.g. Entick v Carrington (1765) 19 Howell’s State Trials 1029.
72
Although the power to initiate private prosecutions remains, the Director of Public
Prosecutions may take over such proceedings (whether to continue or discontinue the
prosecution): Prosecution of Offences Act 1985, s 6. The DPP’s discretion is broad (although
subject to judicial review): e.g. R (Gujra) v CPS [2012] UKSC 52, [2013] 1 AC 484.
73
[2004] EWHC 786(QB)
74
[2017] UKSC 3, [2017] A.C. 964.
75
Association of Mothers of Srebrenica v State of the Netherlands (Gerechtshof Den Haag, 27
June 2017).
76
G van Dijck,” When Historic Injustice Meets Tort Law: the Case of the Srebrenica
Genocide” 20 July 2017, Maastrict Europan Private Law Institute.
 In a related context, it could be said that an advantage of extending liability for
breach of the ECHR into foreign military operations, 77 rather than leaving them
governed purely by the Laws of Armed Conflict / International Humanitarian Law
(e.g. the Geneva Conventions), is that injured individuals can initiate such claims. If a
weakness of the Geneva Conventions is non-enforcement, such tort or tort-like claims
can give teeth to IHL. The advantage of effective enforcement over empty
declarations of principle is obvious. The British army has faced claims from over 600
Iraqi civilians for acts during the occupation of Basra (2003-09). Some have
estsblished torts (battery, false imprisonment) and breaches of the ECHR, and
recovered damages.78 The desirability of this is politically controversial. Everybody
accepts that “The Queen's uniform is not a licence to commit wrongdoing”. 79 Do tort
claims (and those brought under the Human Rights Act) valuably contribute to the
suppression of such wrongdoing? Or are they a further layer of accountability that is
arguably redundant (given IHL) and potentially harmful to military efficacy?80
It is apparent that tort plays a significant role in holding state power to
account, potentially at the very highest level. But the extent to which this is
beneficial, let alone essential, is hard to determine given the other mechanisms that
exist. A slightly less intractable example is medical negligence. As seen, the grossly
negligent health professional could face trial for manslaughter. This could be thought
a powerful vindication of patients’ rights in cases of gravest culpability. However,
successful prosecutions of this kind are rare, and recent convictions have brought an
outcry from doctors’ groups objecting that over-worked doctors are made scapegoats
for systemic failings (underfunding and understaffing). A report commissioned by the
Secretary of State has found the risk of police investigation compounds the stress felt
by healthcare staff over all patient deaths, leading to fear and lack of transparency,
and has accordingly recommended that manslaughter prosecutions should be confined
to “truly exceptionally bad” cases, to minimise such detrimental effects.81
With the criminal law confined to the gravest cases only, room for tort claims
seems evident. Yet in common with other professional groups, doctors and nurses
also face professional sanctions (including being struck off) for poor practice—
whether or not it actually injures patients. Aggrieved individuals have no right to
initiate disciplinary proceedings. Whether the right to launch a negligence claim is a
vital part of accountable medicine depends on the degree to which the enforcement of
high professional standards is in practice accomplished by (e.g.) the General Medical
Council, alongside rare criminal prosecutions.
We have focused in this section on tort’s “ombudsman” role. Its existence is
clear. Its importance should not be underestimated. Something valuable would
certainly be lost if negligence were replaced by a compensation scheme. But that is
not to say that that value could not be a price worth paying for universal
compensation. Tort is valuable—but not literally irreplaceable. Other accountability
mechanisms exist. Only a very lengthy and detailed comparative examination of the

77
Al-Skeini v United Kingdom (2011) 53 EHRR 18; Mohammed (Serdar) v Ministry of
Defence [2017] UKSC 2, [2017] A.C. 821.
78
Alseran v Ministry of Defence [2017] EWHC 3289 (QB).
79
Bici [113] Elias J.
80
T Tugendhat and L Croft, “The Fog of Law” (London 2013); R Ekins, J Morgan and T
Tugendhat, “Clearing the Fog of Law” (London 2015).
81
Prof Sir N Williams, Gross negligence manslaughter in healthcare: The report of a rapid
policy review (gov.uk, June 2018) 5-7.
many areas in which tort performs this ombudsman role could enable accurate
estimates of its ultimate social value.
The picture becomes yet more complicated if extended to include other social
values behind tort claims. A large number are now brought for sexual abuse, often
occurring many decades ago. Many people assume this is largely about money—and
that claimants’ (remarkably successful) efforts to widen the bounds of vicarious
liability are driven by the eternal search for a deep pocket. 82 However, studies have
found that “non-monetary relief” of various kinds is a significant reasoning for
claiming, and for some is more important than compensation. Apology, validation,
the finding or admission of fault, “closure, disclosure, accountability, prevention, and
revenge” have all been identified by studies into claimants’ motivations. 83 Hence the
extra-legal scheme for victims of Catholic Church abuse in the Netherlands is
expressly empowered to order non-monetary remedies in addition to compensation.
This example suggests that a compensation scheme alone would not be a complete
replacement for tort law. Again, that is not to say that tort law is the perfect
mechanism to achieve these “non-monetary” goals. Legislation (for example in
Scotland) aims encourage apologies by deeming that these are not an admission of
liability.84 In other words, the fear of tort claims can inhibit apologies, acceptance that
mistakes have been made, and so forth. But the complete absence of tortious
responsibility in an accident compensation scheme would remove a tool of
accountability that currently exists for the victims of harm.

The Moral Defence of Tort?

Lord Sumption suggests that society’s commitment to the morality of tort law will
ensure its survival. This is questionable. It is doubtless morally satisfying to say that
those who culpably injure others should make amends: corrective justice should be
upheld. But only at the most superficial level does this moral idea still explain tort.
Anyone with passing acquaintance of how the tort system functions in practice will
conclude that it is only loosely connected with the morality of corrective justice. It is
therefore dubious whether moral sentiment alone can preserve tort law, if (as Lord
Sumption accepts, although I do not) the “utilitarian” case for abolition has been
proven.
Perhaps the disjunction between appearance and reality in tort litigation is not
generally realised by public opinion. At least symbolically it does appear that if you
are injured by a negligent driver or doctor (say), he or she will have to pay
compensation. If the general public have an incomplete understanding of the tort
system they are in good company, for it appears that many tort students and scholars
share (and in the latter case perpetuate) that ignorance. Legal education takes tort
doctrine at face value. Undoubtedly tort law’s concepts are premised on individual
responsibility: whether the defendant was at fault, for how much of the damage the
defendant should be held causally responsible, and similarly across the whole scope
of liability. To a remarkable degree, courts refuse to take notice of the realities of
who actually pays compensation (i.e. the incidence of insurance).
82
e.g. Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215 and Various Claimants v
Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 A.C. 1.
83
G van Dijck, “Victim-Oriented Tort Law in Action: An Empirical Examination of Catholic
Church Sexual Abuse Cases” (2018) 15 Jo Empirical Leg Stud 126, 129.
84
See DSK Maxwell, “The Apologies (Scotland) Act 2016: an innovative opportunity in the
twenty first century or an unnecessary development?” [2016] JPIL 79.
 Yet as noted already, the combination of liability insurance and vicarious
liability means that those who negligently injure others rarely pay compensation
themselves. It is equally notorious that there is a whole swathe of tortious behaviour
which in practice never reaches the courts because neither insurance nor vicarious
liability are present, and the practical chance of compensation being paid is remote.
Accidents in the home are a significant example, given the sheer scale of accidental
injuries which they cause. Many domestic accidents will not involve tortious
behaviour (although surely a sizeable number do result from another’s carelessness).
Even that partial explanation for tort’s conspicuous absence is unavailable for
criminal injuries. Without doubt every violent crime recorded in the annual statistics
involves a tort (trespass to the person). But very few trigger a claim in tort. We can
be certain that violent criminals are uninsured against liabilities for battery (etc), for
even if they wanted to insure (which they do not), it would be against public policy to
indemnify criminal activity. Insurers anyway do not insure deliberately harmful
activity, for sensible commercial reasons—i.e. given the obvious moral hazard that
would be created. Since they are uninsured and almost inevitably impecunious,
tortfeasor-criminals are immune from tort claims (despite their undoubted theoretical
liability). This de facto immunity is one reason for the Criminal Injuries
Compensation Scheme (state compensation for the victims of violent crime). The
only parties actually sued in respect of violent crime are employers held vicariously
liable for workplace assaults,85 and (controversially) public authorities who fail to
prevent the crime.86 As Jane Stapleton has forcefully argued, liability in the latter
situation means “over-deterrence of causally peripheral parties”: the police (etc) are
most unlikely to recover contribution from the primary criminal wrongdoers, and so
in practice bear the entire burden of compensation.87
The last point is a particular example of a much more general truth. The only
parties that are sued are ones with means to satisfy judgment. That is true even when
there is a much more obvious wrongdoer, one who is undoubtedly liable but a mere
man of straw. The better-resourced target is always preferred. The “means” in
question are those of a large organisation (a well-resourced employer, appropriately
capitalised insurer, or both). So even if public opinion does profess attachment to the
“wrongdoer pays” principle, public behaviour does not. It is scarcely an exaggeration
to say that wrongdoers are never personally sued to judgment; and the parties from
whom compensation is obtained are never wrongdoers (although they have some
secondary connexion, for example insuring or employing the wrongdoer).
Once this is accepted, the “accident preference” in the current compensation
“system” becomes even harder to accept. The logic of tort demands restitutio in
integrum from the wrongdoer. Victims who cannot prove another’s responsibility
recover nothing (however innocent they are and however acute their needs). Once it
is appreciated that in practice “wrongdoers” do not pay damages personally, the
justification for treating better the subset of victims injured by torts disappears. In
practice, for example, the source of compensation for those injured by negligent
drivers is all drivers, since all are legally compelled to pay liability insurance
premiums as a condition for driving. One can fairly view motor insurance as a kind
85
e.g. Lister v Hesley Hall (above), Mattis v Pollock [2003] EWCA Civ 887; [2003] 1 W.L.R.
2158 and Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11; [2016] AC 677.
86
Compare Dorset Yacht (above), Osman v UK (2000) 29 E.H.R.R. 245 and Michael v Chief
Constable (above).
87
J Stapleton, “Duty of care: peripheral parties and alternative opportunities for deterrence”
(1995) 111 LQR 301.
of tax which all drivers pay to ensure that a small subset of accident victims is
handsomely compensated, while the majority of accident victims receives nothing. It
seems reasonable to consider whether those paying the “tax” would prefer its
proceeds to be distributed in a different way, for example according to the needs of
accident victims. We suggest that if the question were posed this way, the answer
would differ from Lord Sumption’s belief that the public is committed to tort law and
the fault principle. A major public report into the operation of tort law would show
how far tort’s practical operation differs from its theoretical basis. The
“unacknowledged revolution” ought to be acknowledged. 88

Conclusion

Two great questions confront the would-be reformer. Should tort law be abolished,
and replaced by some other scheme for addressing the costs of personal injuries?
Secondly, how likely is it that any such drastic reform will be implemented?
Neither is straightforward. On the first question, Lord Sumption has a
seductively clear position: the utilitarian case for abolishing tort is very strong, but
tort’s moral importance counts against abolition. This reply to Lord Sumption is alas
much less clear. As for “utility”, it is true that tort is indefensible as a way of meeting
the needs of accident victims and far more expensive to operate that public or private
insurance schemes. Thus it appears that all accident victims could have at least some
of their financial needs met were tort abolished, the amount available for victims
increasing significantly per unit of funding because of administrative cost savings. As
for morality, corrective justice has been so hollowed out by liability insurance (and
vicarious liability) that a mere façade is arguably all that remains. The moral loss of
such a worn-out pantomime would be symbolic at most. But abolishing tort would
involve losses. Liability has a significant deterrent effect. In rare—but important—
cases, tort litigation holds powerful bodies to account at the instigation of their
victims. But a number of alternative legal (and political) mechanisms, already
existing, could substitute tort’s “deterrent” and “ombudsman” roles (and its other
social functions).
Thus a detailed survey of these costs and benefits is needed before a firm
conclusion can be reached. While the Pearson Commission published valuable data
about the cost and reach of tort compensation, the data are now over 40 years old.
Empirical research into tort’s effect on behaviour modestly accumulates. But it is
patchy, interesting and suggestive—rather than systematic and conclusive (or even
approaching the probative). The notorious ongoing disagreement about tort’s effect
on public authority decision-making flows from the inconclusive state of knowledge.
Nor has there been systematic study of tort’s part in one of law’s primary missions,
controlling abuse of power.89 The task of is a daunting one indeed. The conclusion is
not merely the traditional lament that “more research is needed” but that a new
authoritative investigation on the scale of the Pearson Royal Commission is needed.
It need not be governmental, but it would require resources beyond those available to
individual researchers.
To return to the second question, are such grand reforming projects likely to
happen? Perhaps not. If you rob Peter to pay Paul, there is always the danger that
Paul’s gratitude will be outweighed by Peter’s resentment. Any such radical reform
88
Hedley (above).
89
Viz for “public” and “private” alike: see D Oliver, Common Values and Public-Private
Divide (Butterworths 1999).
risks being Courageous on the Yes Minister scale.90 A particular problem here is that
those who would benefit from wider availability of compensation are not an organised
group. But its opponents assuredly are. The status quo has powerful defenders.
Some groups of accident victims would probably be left worse off (although certainly
not left with nothing) if tort were replaced by a compensation scheme: the trade union
opposition during the Pearson Commission exemplifies this. Equally, those who
make their living from the current system would firmly oppose radical reform. While
reducing administrative costs sounds like an unopposable gain from any legal change,
it inevitably means loss of income and indeed jobs for the current administrators.
Lawyers and insurers lobby hard. And to the (limited) extent of the “social security
clawback” from tortfeasors (i.e. insurers) the government itself also benefits from tort
liability.
Against these inevitable opponents of change must be set groups currently
disadvantaged by tort. Those who bear its current costs would favour reform. The
cost of medical negligence liability has grown to a very large figure—whereas such
claims were minimal at the time of Pearson. These costs are born largely by the
National Health Service, which operates under acute budgetary pressures. Thus,
given the way the public cherishes the NHS, cost-saving reform of this branch of
negligence law might enjoy strong political support.91 As for general reforms, many
(most?) voters pay liability insurance premiums—especially qua drivers. Votes may
be sought by reducing those premiums (or slowing the rate of their increase): there is
no doubt that here at least, the general public realises that when changes in liability
increase the cost to insurers, the cost is inevitably passed on to premium-payers. 92
Hence as Lord Sumption notes, the unusual phenomenon of frequent government
intervention. Measures to curb the supposed industry of fraudulent whiplash claims
are a good example. But such changes are (inevitably) unsystematic tinkering with
the current system. Might not a bolder approach win public support?
A state compensation scheme would re-locate decision-making authority. At
present, courts decide the scope of liability and set the level of damages. Changes in
the law are derived from the framework of corrective justice: distributive questions
about what a change costs and who pays for it are very rarely considered in court. 93
Yet changes in the way damages are assessed have put up every motorist’s costs as
surely as any Chancellor of the Exchequer’s announcements about vehicle duty. The
Court of Appeal’s decisions to increase non-pecuniary damages to implement reports
of the Law Commission,94 and Sir Rupert Jackson’s report into the funding of civil
litigation,95 have accordingly been criticised for bypassing the ordinary political
process.96 But are those decisions just egregious examples of an inherent problem? If
it is correct to see tort as (in part) a tax set by the judiciary, the democratic deficit is
plain.
90
A “controversial” political decision will lose votes; a “courageous” one, the election.
91
e.g. P Toynbee, “Thinking of suing the NHS? Here’s why you should think again” The
Guardian, 7 September 2017 (canvassing revival of Crown immunity).
92
Cf. remarks of Piers Ashworth QC, Law Commission Report No 257, Damages for
Personal Injury: Non-Pecuniary Loss (1998), 3.62.
93
Cf Heil v Rankin [2001] QB 272.
94
Compare Heil (ibid) with Law Com 257 (above).
95
Compare Simmonds v Castle [2012] EWCA Civ 1288; [2013] 1 WLR 1239 with Review of
Civil Litigation Costs: Final Report (Ministry of Justice 2009) p xvii.
96
D Campbell, “The Heil v Rankin approach to law-making: Who needs a legislature?”
(2016) 54 Common Law World Rev 340.
 Parliament could in theory monitor tort’s common law development and
intervene whenever it adjudged the cost too high, but that is quite unrealistic in
practice. Whereas if compensation were administered under a statutory scheme, all its
parameters would derive directly from the political process. Opponents might claim
that, as in New Zealand, the inevitable result would be declining levels of
compensation as the initial (tort-derived) quantum became unaffordable. But there is
no Archimedean point of fairness or affordability here. That the burden of cost on
liability insurance “taxpayers” is ignored by the common law process certainly
protects levels of compensation from erosion. But are not those who fund tort
damages entitled to fairness too? It may suit the government that “responsibility for
problems in the tort system is much more diffuse and disputable” than under a state-
run scheme.97 Such evasion of political responsibility is unacceptable.
We should not disguise the deeply controversial distributive questions raised
by the tort abolition debate. But their controversial nature should not preclude
unelected judges and unaccountable academics from questioning the current system.
Dismissing the case for reform as unproven, too difficult or too controversial is a
deliberate political choice too. It ensures the perpetuation of the current tort system
which, despite the possible benefits discussed in this article, is a clear failure on the
important criteria of fair compensation and economical operation. For those reasons
alone it needs to be questioned. That Lord Sumption has re-started the debate is
admirable. Many will disagree with his analysis, and mine. Controversy is endemic.
The only hope for resolving it in an orderly way is an authoritative review. When the
question is of such social importance, must lawyers really be so pessimistic as to
shrug and say it will never happen? There is nothing so dangerous as to consult one’s
private crystal ball but, 45 years after the Royal Warrant setting up the Pearson
Commission (whose report was so disappointingly timid), 98 it is time for reform to
return to the public agenda—and that of tort lawyers too.

97
Hedley (above) 112.
98
19 March 1973.