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Footnotes

• ¹

  While this article focuses on ‘blame culture’ in a particular legal context (negligence law), this is a topic that is seen as relevant to other areas of the law, eg human rights law. On blame culture and human rights, see Furedi F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies. 1999) at pp 21–22, arguing that the Human Rights Act 1998 can be expected to encourage ‘a vast increase in … litigation’, and, at p ii, that a ‘culture of litigation’ has issued in, inter alia, increased conflict and diminished quality of life.

• ²

  [1983] 1 AC 410 at 421, where Lord Wilberforce also contemplated the possibility that a finding for the claimant may lead to ‘the establishment of an industry of lawyers and psychiatrists who will formulate … claim[s] for nervous shock’. Cf the examination of the House of Lords’ decision in McLoughlin in Dworkin R., Law’s Empire (London: Fontana, 1986) at pp 238–250, 258–259, 268–271. Dworkin canvasses a wide variety of judicial responses to the plaintiff’s claim, including that of a pragmatic judge attuned to the practical effects of liability rules. But he does not consider the issue of blame culture.

• ³

  See eg Mason J. K., and McCall Smith R. A., Law and Medical Ethics (London: Butterworths. 1987) at p 160. On the US medical malpractice crisis of the 1970s and 1980s, see Fleming J., The American Tort Process (Oxford: Oxford University Press, 1988) at pp 16–18.

• ⁴

  On ‘blame culture’, see eg Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 47–50, 138–143; and on ‘compensation culture’, see Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004). Conduct of the sort with which blame culture is most closely associated has attracted critical comment in this country for many decades. For example, ‘ambulance chasers’ attracted unfavourable comment in The Guardian as long ago as March 1961, commenting on ‘unscrupulous lawyers who collected details of casualties as they were taken to hospital in order to persuade the person[s] concerned to bring action[s] for damages’. See The Oxford Dictionary Online, www.oed.com/ , where the compound noun ‘ambulance chaser’ is traced back to New York City in the late 19th Century.

• ⁵

  Stanton, K M, ‘The Decline of Tort Liability for Professional Negligence’ (1991) 44 CLP 83 at 84. While Stanton did not mention blame culture, he described attitudes among some of negligence law’s addressees that are associated with it. See eg p 102, noting that: ‘Clients are increasingly seeing the acquisition of professional services as providing a guarantee against untoward consequences resulting from the work.’

• ⁶

  Arthur J S Hall & Co v Simons [2002] 1 AC 615.

• ⁷

  Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134.

• ⁸

  Powell J. L., and Stewart R., Jackson & Powell on Professional Negligence (5th edn, London: Sweet and Maxwell, 2002) at p 3 and ch 17.

• ⁹

  Some of the issues relevant to the question raised in the text are examined in Posner, R A, ‘Explaining The Variance In The Number Of Tort Suits Across U.S. States And Between The United States And England’ (1997) 26 J of Leg Stud 477.

• ¹⁰

  Blair, A, ‘Common Sense Culture Not Compensation Culture’, speech delivered at University College London, 26 May 2005.

• ¹¹

  Part 1 of the Compensation Bill focuses on negligence law and states that judges ‘may’ consider whether the imposition of liability will, inter alia, ‘prevent a desirable activity from being undertaken’ (clause 1). Part 2 of the Bill deals with the regulation of claims management services. The Compensation Bill has won the support of the Conservative Party – see ‘Strike a New Balance on Compensation Culture’, www.conservatives.com/tile.do?def=news.story.page&obj_id=126082 . Likewise, the Liberal Democratic Party has welcomed the publication of the Compensation Bill – see ‘Compensation Bill Modest But Welcome’, www.libdems.og.uk/news/compensation-bill-modest-but-welcome-heath.html .

• ¹²

  Furedi F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) lends support to the view that the evidence on blame culture is equivocal. But not all commentators agree with this view: see eg Arculus, D, et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004), where compensation culture is described as a ‘damaging myth’.

• ¹³

  See Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 143, on justified blame.

• ¹⁴

  [1988] AC 1013.

• ¹⁵

  [1978] AC 728 at 751–752.

• ¹⁶

  The ‘retreat’ from Anns spanned the first six years of Professional Negligence’s existence. It is typically identified as having begun with the House of Lords’ decision in Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd [1984] AC 210. It culminated in the House’s decision in Murphy v Brentwood District Council [1991] 1 AC 398, in which Anns’ ratio was disapproved and Lord Wilberforce’s approach to duty questions was repudiated. This is the ‘retreat’ that prompted Stanton to offer the analysis of professional liability noted earlier. See note 5 above (and associated text).

• ¹⁷

  [1988] AC 1013 at 1059.

• ¹⁸

  [1978] AC 728 at 751.

• ¹⁹

  See Mullender, R, ‘ Prima Facie Rights, Rationality and the Law of Negligence’, ch 6 in M. Kramer (ed) Rights, Wrongs and Responsibilities (New York: Palgrave, 2001) at p 179.

• ²⁰

  Ibid M. Kramer (ed) Rights, Wrongs and Responsibilities (New York: Palgrave, 2001).

• ²¹

  [1988] AC 1013 at 1059.

• ²²

  Ibid AC 1013 at 1059 at 1059 (emphasis added).

• ²³

  Lord Templeman’s comments on hindsight and the assumption that claimants ‘must’ be able to recover compensation from ‘someone’ are more emphatic than his (earlier) use of the locution ‘on the jar’. Thus his speech is not free from tension on the subject of blame culture as an actually-existing problem. But this is hardly surprising, for he was seeking to describe a developing state of affairs.

• ²⁴

  [1996] 4 All ER 318.

• ²⁵

  Ibid 4 All ER 318 at 322.

• ²⁶

  Ibid 4 All ER 318 (emphasis added).

• ²⁷

  Ibid 4 All ER 318 (emphasis added).

• ²⁸

  Ibid 4 All ER 318. The same point had been made by a legal academic two years earlier. See Stapleton J., ‘In Restraint of Tort’, in P. Birks (ed) The Frontiers of Liability (Oxford: Oxford University Press, 1994) at pp 83–84. Writing a decade after Stapleton, the Better Regulation Task Force identifies the same development as having taken place over the last ‘20 or 30 years’. See Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004) at p 14.

• ²⁹

  [2002] EWCA Civ 7; [2002] 1 FCR 425 .

• ³⁰

  Ibid EWCA Civ 7 at [36].

• ³¹

  Ibid EWCA Civ 7 at [16]–[19], [30].

• ³²

  [2000] 3 WLR 776.

• ³³

  Ibid 3 WLR 776 at 792.

• ³⁴

  Ibid 3 WLR 776. More recently, Lord Steyn has stated that ‘the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy’. See Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057 at [2].

• ³⁵

  [2001] EWCA Civ 1249; [2002] 1 WLR 218.

• ³⁶

  Ibid EWCA Civ 1249 at [19].

• ³⁷

  Ibid EWCA Civ 1249.

• ³⁸

  Ibid EWCA Civ 1249 at [55].

• ³⁹

  [2003] UKHL 47; [2004] 1 AC 46.

• ⁴⁰

  Hence, he had (at that time) been owed the common duty of care set out in s 2(2) of the Occupiers’ Liability Act 1957.

• ⁴¹

  Since the claimant had ignored the warning notices, he was categorised as a trespasser. Hence, the defendants owed him the modest duty of care specified by s 1(4) of the Occupiers’ Liability Act 1984.

• ⁴²

  [2004] 1 AC 46 at [8] of the Court of Appeal’s decision.

• ⁴³

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [32].

• ⁴⁴

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision.

• ⁴⁵

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [45]. While he does not do so in Tomlinson, Sedley LJ might have set out an analysis bearing obvious similarities to the one he advanced in Vellino. For a leisure officer in the employ of the defendant Council stated, prior to the injuries suffered by the claimant, that the provision of ‘a facility that is open to the public and which contains beach and water areas is … an open invitation and temptation to swim and engage in other water’s edge activities’. On Sedley LJ’s analysis in Vellino, see note 38 above (and associated text).

• ⁴⁶

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [47].

• ⁴⁷

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [46].

• ⁴⁸

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [40].

• ⁴⁹

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [41]–[43]. Plainly, Lord Hoffmann was alive to the issue addressed by clause 1 of the Compensation Bill: the danger that desirable activities may not be undertaken as a result of the imposition of a liability rule. On the Compensation Bill, see note 11 above.

• ⁵⁰

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [46].

• ⁵¹

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision. See also at [81], per Lord Hobhouse, concluding that ‘[t]he pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen’.

• ⁵²

  Ibid 1 AC 46 at [8] of the Court of Appeal’s decision at [42]–[43], per Lord Hoffmann.

• ⁵³

  Weir, J A, ‘Governmental Liability’ [1989] Public Law 40 at 51.

• ⁵⁴

  Ibid Governmental Liability at 55.

• ⁵⁵

  Weir J. A., Tort Law (Oxford: Oxford University Press, 2002) at p 132, discussing Revill v Newbury [1996] 1 All ER 291.

• ⁵⁶

  Weir J. A., ‘Governmental Liability’ [1989] Public Law 40 at 55, where the author also complains about ‘the appeals of the modern ambulance-chaser whipping in business under the guise of vindicating rights and meeting unmet need’.

• ⁵⁷

  Weir J. A., Tort Law (Oxford: Oxford University Press, 2002) at p 3.

• ⁵⁸

  Ibid Weir, J. A., Tort Law (Oxford: Oxford University Press, 2002) (emphasis added)

• ⁵⁹

  Ibid Weir, J. A., Tort Law (Oxford: Oxford University Press, 2002).

• ⁶⁰

  Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997), chs 2, 3.

• ⁶¹

  [1970] AC 1004.

• ⁶²

  [1995] 3 All ER 87.

• ⁶³

  The deceased airman was held to have been contributorily negligent. Hence, the damages awarded to his widow were reduced by two-thirds.

• ⁶⁴

  Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 40.

• ⁶⁵

  Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 41.

• ⁶⁶

  Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 56–62 (on mental injury) and pp 62–65 (on pure economic loss).

• ⁶⁷

  Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 74–78 (on the liability of employers) and pp 78–89 (on the liability of public bodies). See also p 139, arguing that ‘[g]overnments are particularly vulnerable to litigation when the “blame culture” gets out of hand’.

• ⁶⁸

  Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 45 et seq.

• ⁶⁹

  [1973] 1 WLR 1.

• ⁷⁰

  See Weir J. A., Tort Law (Oxford: Oxford University Press, 2002) at p 69, where McGhee is described as ‘plaintiffs’ law’.

• ⁷¹

  Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 36–37. In an earlier essay (on tort law in the USA), Atiyah associated judicial sympathy with the adoption of a ‘social insurance principle’ according to which (and, here, Atiyah plainly exaggerates) ‘the plaintiff should always win’. See Atiyah, P S, ‘American Tort Law in Crisis’ (1987) 7 OJLS 279 at 287–290.

• ⁷²

  Atiyah (1997), Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997), at p 37. A more measured variation on the theme pursued by Atiyah is offered in a report on public liability insurance in Australia. See Trowbridge Consulting Ltd, Public Liability Insurance: Practical Proposals for Reform (Commonwealth Treasury, 2002), www.treasury.gov.au/documents/314/PDF/plr.pdf (‘the Trowbridge Report’), at p iv, stating that ‘the evidence indicates a gradual “shift” or “stretching” of the interpretation of negligence over several decades so that there are cases succeeding today that would not have succeeded at times in the past’. See also pp 26–27, noting a ‘mismatch’ between ‘the current state of negligence law’ and ‘the expectations of the community’ concerning the range of circumstances in which fault-based liability can properly be imposed,. On this latter point, the Trowbridge Report again pursues a theme advanced by Atiyah: the failure of judges to elaborate negligence law in ways that reflect ‘normal ideas of justice’. See note 64 above (and associated text).

• ⁷³

  Atiyah (1997), Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997), at p 36.

• ⁷⁴

  Volokh, E, ‘The Mechanisms of the Slippery Slope’ (2003) 116 Harv Law Rev 1026.

• ⁷⁵

  Ibid The Mechanisms of the Slippery Slope at 1029.

• ⁷⁶

  Ibid The Mechanisms of the Slippery Slope at 1031 et seq.

• ⁷⁷

  Ibid The Mechanisms of the Slippery Slope at 1077 et seq (on attitude altering slippery slopes) and 1105 et seq (on small-change tolerance slippery slopes).

• ⁷⁸

  Ibid The Mechanisms of the Slippery Slope at 1077 et seq.

• ⁷⁹

  Ibid The Mechanisms of the Slippery Slope at 1078, quoting from Cohen, M R, ‘The Basis of Contract’ (1933) 46 Harv Law Rev 553 at 582.

• ⁸⁰

  Ibid The Mechanisms of the Slippery Slope at 1097.

• ⁸¹

  Ibid The Mechanisms of the Slippery Slope at 1105.

• ⁸²

  Ibid The Mechanisms of the Slippery Slope at 1107.

• ⁸³

  Ibid The Mechanisms of the Slippery Slope at 1112. In his invocation of a ‘zone’ within which plausible interpretations may be advanced, Volokh traverses ground covered in Hart H. L. A., The Concept of Law (2nd edn, Oxford: Clarendon Press, 1994) at p 123, arguing that legal rules exhibit a ‘core of certainty’ and a ‘penumbra of doubt’ or ‘fringe of vagueness’. See also Cardozo B. N., The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at p 130, on ‘the penumbra, where controversy begins’.

• ⁸⁴

  [1978] AC 728 at 751–752, per Lord Wilberforce.

• ⁸⁵

  Ibid AC 728 at 751–752 at 751.

• ⁸⁶

  Volokh’s claims concerning the likely impact of simple messages are supported by the analysis (and empirical evidence) in Gladwell M., The Tipping Point: How Little Things Can Make a Big Difference (London: Abacus, 2002) at pp 19, 91, arguing that the less cluttered (or simple) a ‘message’ is, the more likely it is to be ‘memorable’ and to encourage (sometimes very rapid) processes of change.

• ⁸⁷

  An example of the sort of incremental development mentioned in the text is the extension of the principle in Hedley Byrne & Co v Heller & Partners [1964] AC 465 (establishing liability for negligent misstatements) to business contexts other than those where the defendant provides advice and information on a professional basis. Elaboration of the Hedley Byrne principle has not, however, always proceeded in the measured way described in the text. See eg, Chaudhry v Prabhakar [1989] 1 WLR 29, applying Hedley Byrne to advice given by a non-professional in a non-business context.

• ⁸⁸

  Moorgate Mercantile Co Ltd v Twitchings [1976] 2 All ER 641 at 659.

• ⁸⁹

  Furedi F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies. 1999) at p 1, on the ‘culture of compensation’; and Furedi F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002 (revd edn)) at p 95, on the ‘culture of complaint’. The phrase ‘culture of complaint’ is also used in Hughes R., Culture of Complaint: The Fraying of America (Oxford: Oxford University Press, 1993). See p 2 where Hughes (quoting from W H Auden, For The Time Being (1944)) associates the culture of complaint with a shift from ‘justice’ to ‘pity’ as ‘the cardinal human value’. Rougier J’s judgment in John Munroe lends some support to Hughes’ suggestion. The judge describes ‘the cupped palms’ being ‘outstretched for the solace of monetary compensation’ after ‘every mishap’. See notes 24–28 above (and associated text). Common to Rougier J and Auden seems to be an emphasis on pity as an unattractive basis on which to organise practical life. This being so, they might be regarded as pursuing a theme that bears similarities to the critique of Christian morality in Nietzsche F., The Birth of Tragedy and The Genealogy of Morality (New York: Doubleday, 1956), VI. While the point cannot be pursued in detail here, we might see the modern law of negligence (as developed from Donoghue v Stevenson [1932] AC 562 onwards) as informed by Christian morality. See Lunney M., and Oliphant K., Tort Law: Text and Materials (Oxford: Oxford University Press, 2002) at p 100, discussing the Christian assumptions that shaped Lord Atkin’s thought at the time he enunciated the Neighbour Principle.

• ⁹⁰

  Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at pp 95–103.

• ⁹¹

  Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002) at p 113. See also Giddens A., The Third Way: The Renewal of Social Democracy (Cambridge: Polity Press, 1998) at p 62, noting the ‘new prominence’ given to risk.

• ⁹²

  Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at p 61. See also Giddens A., Beyond Left and Right: the Future of Radical Politics (Cambridge: Polity Press, 1994) at pp 4, 10.

• ⁹³

  Furedi (2002), Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies. 1999), at p 114.

• ⁹⁴

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies. 1999) at p 100.

• ⁹⁵

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies. 1999) at p 1, on safety as ‘the fundamental value of our times’, and p 98, arguing that ‘it was only in the 1960s that victimhood came to acquire the character of a permanent identity’. See also Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 140, arguing that blame culture ‘appears closely related to much of the ideology and the culture that dominated the country in the 1960s and 1970s’.

• ⁹⁶

  Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at p 150. See also Fulbrook J., Outdoor Activities, Negligence and the Law (Aldershot: Ashgate, 2005) at p 157, noting that the practice of ‘risk assessment’ became more widespread after the enactment of the Health and Safety at Work Act 1974.

• ⁹⁷

  Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at p 8.

• ⁹⁸

  Blair, A, ‘Common Sense Culture Not Compensation Culture’, speech delivered at University College London, 26 May 2005. While the message noted in the text has gained currency, the ‘prestige and authority’ of professionals has (on Furedi’s account) declined. See Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at p 130. This development, in combination with the one noted in the text, may go some significant way towards explaining unease concerning blame culture among professional service providers.

• ⁹⁹

  Shklar J. N., The Faces of Injustice (New Haven: Yale University Press, 1990), ch 2. See also Nagel, T, ‘Justice and Nature’ (1998) 17 OJLS 303 at 314–315, recognising that ‘the writ of justice’ grows as the human capacity to anticipate and counter risks increases.

• ¹⁰⁰

  Shklar (1990), Ibid Shklar, J. N., The Faces of Injustice (New Haven: Yale University Press, 1990), at pp 1–4, 55–56, 64–67.

• ¹⁰¹

  Ibid Shklar, J. N., The Faces of Injustice (New Haven: Yale University Press, 1990) at p 56, arguing that ‘our dreams of mastery’ encourage us to view an ever-narrowing range of circumstances as ‘misfortunes’. See also p 55, arguing that ‘our fantasies of omnipotence and total safety’ may encourage us to regard genuine misfortunes as injustices.

• ¹⁰²

  Furedi F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002 (revd edn)) at pp 7–8. Cf Shklar (1990), Ibid Shklar, J. N., The Faces of Injustice (New Haven: Yale University Press, 1990), at pp 2–5, 54–65, arguing that the impulse to blame others for the setbacks we suffer is a psychological necessity that, on some occasions, issues in injustice.

• ¹⁰³

  Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at pp 100–102.

• ¹⁰⁴

  Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002) at p 100.

• ¹⁰⁵

  Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002).

• ¹⁰⁶

  Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002) at p 8.

• ¹⁰⁷

  Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002) at pp xvi, 167. See also Giddens A., The Third Way: The Renewal of Social Democracy (Cambridge: Polity Press, 1998) at p 63, noting that risk is both ‘a negative phenomenon’ and ‘the energising principle of a society’.

• ¹⁰⁸

  Furedi F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies. 1999) at p 1, discussing, inter alia, claims against public bodies.

• ¹⁰⁹

  Furedi F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002 (revd edn)) at p 11. The unflattering view of legal practitioners offered by Furedi is nothing new. In the 1790s, Edmund Burke identified them as often having ‘unquiet minds’ and ‘litigious dispositions’. See Burke E., Reflections on the Revolution in France (London: Penguin, 1968) at p 43.

• ¹¹⁰

  Furedi (2002), Ibid Furedi, F., The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002), at p 11.

• ¹¹¹

  Furedi F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at p 19.

• ¹¹²

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at pp 19–20. Since 1995, conditional fee agreements have had legal force by operation of the Courts and Legal Services Act 1990.

• ¹¹³

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at p 19. See also Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at p 16, noting that ‘[f]or a long time in America, down through the 1970s, it was thought that lawyers should not drum up their own business’, and at p 17, describing criminal prohibitions on ‘ambulance chasing’ in New York in the 1950s.

• ¹¹⁴

  The point made in the text applies to Furedi F. Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999). Chapter 8 of this text is dedicated to empirical data bearing on the issue of blame culture.

• ¹¹⁵

  Ibid Furedi, F. Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at pp i–ii.

• ¹¹⁶

  The views of the commentators discussed in this section seem worthy of examination since the positions that they stake out reflect and/or instantiate cultural shifts that members of the judiciary and the Blair administration have concluded merit an authoritative response (critical comments in the case of judges and the Compensation Bill in the case of the Blair administration).

• ¹¹⁷

  Humphrys J., Devil’s Advocate (London: Hutchinson, 1999), ch 1: ‘The Victim Culture’.

• ¹¹⁸

  Ibid Humphrys, J., Devil’s Advocate (London: Hutchinson, 1999) at p 5.

• ¹¹⁹

  Ibid Humphrys, J., Devil’s Advocate (London: Hutchinson, 1999) at pp 5–6.

• ¹²⁰

  Ibid Humphrys, J., Devil’s Advocate (London: Hutchinson, 1999) at p 6.

• ¹²¹

  Ibid Humphrys, J., Devil’s Advocate (London: Hutchinson, 1999). See also White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455.

• ¹²²

  In support of this conclusion, Humphrys discusses compensation claims mounted by, among others, police officers who worked in the aftermath of the Dunblane shootings, a paramedic who tended road accident victims in the course of his work, and soldiers who had witnessed atrocities in Bosnia. Weir also identifies a less stoical practical orientation as a feature of blame culture. See Weir, notes 53–56, above (and associated text). See also Scruton R., England: An Elegy (London: Pimlico, 2001) at p 245, arguing (without reference to supporting data) that the English virtue of stoicism is ‘rapidly disappearing’, with the result that those who suffer ‘misfortune’ are readier than in the past ‘to look around for someone to sue’. Cf Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004) at p 37, stating that those upon whom harm has been wrongfully inflicted should not ‘put up’ with the situation in which they find themselves and should assert their rights.

• ¹²³

  On ‘memetic evolution’, see Balkin J. M., Cultural Software: A Theory of Ideology (New Haven: Yale University Press, 1998) at p 43 defining a ‘meme’ as a unit of cultural transmission and noting that ‘[m]emes are spread from person to person by observation and social learning’. The concept of a meme was originally introduced in Dawkins R., The Selfish Gene (new edn, Oxford: Oxford University Press, 1989 (new edn)), ch 11.

• ¹²⁴

  124F

• ¹²⁵

  125H

• ¹²⁶

  Ibid Hattersley, R., ‘Conkers Bonkers’, Daily Mail, 4 October 2002,.

• ¹²⁷

  Ibid Hattersley, R., ‘Conkers Bonkers’, Daily Mail, 4 October 2002,.

• ¹²⁸

  Ibid Hattersley, R., ‘Conkers Bonkers’, Daily Mail, 4 October 2002,.

• ¹²⁹

  The Times, 27 September 2002, p 22 (Features).

• ¹³⁰

  130W

• ¹³¹

  Ibid Wintour, P., ‘Blair hits out over “absurd” EU rules’, The Guardian, 27 May 2005.

• ¹³²

  Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004) at pp 5, 11, 17, discussing, inter alia, coverage in the Daily Mail, the Financial Times, and The Daily Telegraph. While Arculus, et al, confine their comments to national newspapers, they might have noted that a number of highly successful television series have encouraged the view that some lawyers are incorrigible ambulance-chasers. This is true, for example, of The Simpsons, where one (fictive) lawyer (Lionel Hutz) regularly encourages his clients to sue by offering counsel of the following sort: ‘[Y]ou can ching-ching-ching cash in on this tragedy’. See Richmond R., and Coffman A., The Simpsons: A Complete Guide to Our Favourite Family (London: Harper/Collins, 1997) at p 44.

• ¹³³

  133F

• ¹³⁴

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999).

• ¹³⁵

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999).

• ¹³⁶

  Lord Chancellor’s Department, Annual Reports 1988–1996 (HMSO), Judicial Statistics. For more recent data, see note 154 below (and associated text).

• ¹³⁷

  137F

• ¹³⁸

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999).

• ¹³⁹

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at p ii.

• ¹⁴⁰

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at p 27.

• ¹⁴¹

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999).

• ¹⁴²

  Ibid Furedi, F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at p 26. Legal aid for most forms of personal injury claim was abolished by the Access to Justice Act 1999.

• ¹⁴³

  143A

• ¹⁴⁴

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004).

• ¹⁴⁵

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004).

• ¹⁴⁶

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004).

• ¹⁴⁷

  See Furedi F., Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) at p 28.

• ¹⁴⁸

  See Esler G., The United States of Anger: The People and the American Dream (London: Michael Joseph, 1997) at p 92. See also ch 5 on ‘the rise of the culture of victims’. The problem noted in the text may be self-reinforcing, since where legal practitioners succeed in generating significant incomes, others may be prompted to (seek to) follow their lead. See also Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at p 10, noting that ‘[p]ots of money have a way of attracting young talent’.

• ¹⁴⁹

  Kritzer, H M, ‘Political Culture and the Propensity to Sue’ (1988) (Working Paper, Disputes Processing Research Program, University of Wisconsin School of Law) at pp 6–7, drawing on figures set out in Atiyah, P S, ‘Tort law and the Alternatives: Some Anglo-American Comparisons’ (1987) 36 Duke LJ 1002 at 1004–1010, and in Harris D., et al, Compensation and Support for Illness and Injury (Oxford: Clarendon Press, 1984) at p 51.

• ¹⁵⁰

  Ibid Harris, D., et al, Compensation and Support for Illness and Injury (Oxford: Clarendon Press, 1984).

• ¹⁵¹

  Posner, R A, ‘Explaining the Variance in the Number of Tort Suits Across US States and Between the United States and England’ (1997) 26 J of Leg Stud 477–488.

• ¹⁵²

  Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004).

• ¹⁵³

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004), section 3.

• ¹⁵⁴

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004).

• ¹⁵⁵

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004). Other evidence can be adduced to support the BRTF’s claim that the widespread perception of a blame culture does not map onto reality. For example, the number of claims for compensation where a person had tripped over a pavement in Liverpool was reported in 2004 to have declined by 70 per cent in two years. See Carter, H, ‘Crackdown cuts tripping claims’, The Guardian, 2 December 2004, p 10.

• ¹⁵⁶

  156A

• ¹⁵⁷

  Ibid Arculus, D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004), sections 3 and 4, where the notion of a ‘genuine’ claim is introduced. On unmeritorious and unethical claims, see pp 12 and 19. See also Carter, H, ‘Crackdown cuts tripping claims’, The Guardian, 2 December 2004, noting that ‘[t]he fall in claims [in Liverpool for pavement-related injuries] may have coincided with the demise of the Accident Group’.

• ¹⁵⁸

  See Williams, K, ‘State of Fear: Britain’s “Compensation Culture” Reviewed’ (2005) 25 Legal Studies 499 at 508, concluding that ‘[t]he idea that defendants are beset by ever-increasing numbers of doubtful claims is not proven’.

• ¹⁵⁹

  While the point cannot be pursued here, the (perceived) problem of blame culture is also affecting the behaviour of potential defendants. See Fulbrook J., Outdoor Activities, Negligence and the Law (Aldershot: Ashgate, 2005) at p 12, noting that Chris Keates, the General Secretary of the NASUWT has identified parents as ‘increasingly litigious’ and, hence, has advised her members to ‘think carefully’ before taking their pupils on school trips.

• ¹⁶⁰

  Posner, R A, ‘Explaining the Variance in the Number of Tort Suits Across US States and Between the United States and England’ (1997) 26 J of Leg Stud 477 at 480–481, arguing that readiness to mount compensation claims in tort increases as the rate of urbanisation, population density, and years of education increase.

• ¹⁶¹

  The question posed in the text merits close examination since (the nature of) blame culture (or ‘compensation culture’) is a subject that has received ‘very little analysis’. See Office of Fair Trading, An Analysis of Current Problems in the UK Liability Insurance Market (Office of Fair Trading, 2003), 10.4.

• ¹⁶²

  Lunney M., and Oliphant K., Tort Law: Text and Materials (Oxford: Oxford University Press, 2002) at pp 16–18 discussing, inter alia, the Royal Commission on Civil Liability and Compensation for Personal Injury (1978, Cmnd 7054) (‘Pearson Report’).

• ¹⁶³

  163H

• ¹⁶⁴

  Ibid Hart, H. L. A., The Concept of Law (2nd edn, Oxford: Clarendon Press, 1994) at p 132. See also Mullender, R, ‘The Reasonable Person, The Pursuit of Justice, and Negligence Law’ (2005) 68 MLR 681 at 689.

• ¹⁶⁵

  [2003] UKHL 47; [2004] 1 AC 46.

• ¹⁶⁶

  Ibid UKHL 47 at [17]–[24].

• ¹⁶⁷

  Ibid UKHL 47 at [22]. See also [24], where Lord Hoffmann noted that the Borough Council found this proposal persuasive and allocated a modest sum (£5,000) so that it could be carried into effect. At the time the claimant suffered injury the relevant work had not been carried out.

• ¹⁶⁸

  [2001] QB 1134.

• ¹⁶⁹

  Ibid QB 1134 at 1140–1141, per Lord Phillips MR.

• ¹⁷⁰

  Ibid QB 1134 at 1172–1173, per Lord Phillips MR.

• ¹⁷¹

  Ibid QB 1134 at 1170, per Lord Phillips MR.

• ¹⁷²

  Ibid QB 1134, per Lord Phillips MR.

• ¹⁷³

  Ibid QB 1134 at 1172–1173, per Lord Phillips MR.

• ¹⁷⁴

  Walker v Northumberland County Council [1995] 1 All ER 737 at 750, per Colman J. See also Hart H. L. A., The Concept of Law (2nd edn, Oxford: Clarendon Press, 1994) at pp 132–133.

• ¹⁷⁵

  Mullender R., ‘ Prima Facie Rights, Rationality and the Law of Negligence’, ch 6 in M. Kramer (ed) Rights, Wrongs and Responsibilities (New York: Palgrave, 2001) at p 186.

• ¹⁷⁶

  See Hayek F. A., The Road to Serfdom (Chicago: University of Chicago Press, 1994) at pp 55–56. See also Kukathas C., Hayek and Modern Liberalism (Oxford: Clarendon Press, 1990) at pp 117–118. In the case of the market as a discovery procedure, knowledge is encoded in prices that are themselves determined through voluntary exchanges. See Nishigama C., and Leube K. R. (eds), The Essence of Hayek (Stanford, California: Hoover Institution Press, 1984) at pp 219–220.

• ¹⁷⁷

  The use of ‘discovery procedure’ proposed in the text is extended for this reason. Hayek focuses his attention on a comparatively informal discovery procedure (the market, where, save for a body of constitutive rules, outcomes (prices) are determined by an aggregate of free choices. But, in the context of negligence law, a judge makes an authoritative ruling on the significance of evidence and arguments that (in order to be accepted) must satisfy a range of substantive and procedural requirements. The need for this latter discovery procedure is easily explained. The transaction costs (most obviously, search costs) involved in identifying the myriad circumstances in which reasonably foreseeable harm could be inflicted are prohibitively high. But, by allowing addressees of the law to mount or defend negligence actions, a body of knowledge concerning risks and means by which to counter them can be accumulated. Support for the extended use of ‘discovery procedure’ proposed here is provided in Campbell, D, ‘Of Coase and Corn: A (sort of) Defence of Private Nuisance’ (2000) 63 MLR 197 at 208, discussing the economic analysis of law offered by Elisabeth Krecke.

• ¹⁷⁸

  Cf Linden A. M., Canadian Tort Law (3rd edn, Toronto: Butterworths, 1993) at p 23. Linden does not go so far as to identify negligence law as a discovery procedure. But he does describe negligence law (and tort more generally) as a form of ‘ombudsman’ that yields new information by reference to which judges are able to fashion new doctrine.

• ¹⁷⁹

  179H

• ¹⁸⁰

  180A

• ¹⁸¹

  On the difficulties involved in interpreting the concept of reasonableness, see Hart H. L. A., The Concept of Law (2nd edn, Oxford: Clarendon Press, 1994) at p 132. On vagueness, see Endicott T. A. O., Vagueness in Law (Oxford: Oxford University Press, 2000) at p 31, stating that ‘[a]n expression is vague if there are borderline cases for its application’. See also Barry, B, ‘And Who is My Neighbour?’ (1979) 88 Yale LJ 629 at 638, on the difficulties involved in determining who one’s ‘neighbours’ are in practical contexts.

• ¹⁸²

  Deakin S., Johnston A., and Markesinis B. S., Tort Law (5th edn, Oxford: Clarendon Press, 2003) at p 178. From the standpoint that judges are expected to take up when assessing what a reasonable person would have done in the circumstances, the anticipated harm should be discounted for uncertainty. This involves multiplying the anticipated harm by the probability of its occurrence (a figure less than 1 (certainty)) in order to determine the quantum of expected harm. But even the judge who seeks to abide scrupulously by the requirement to deliberate in this way cannot insulate herself from the fact of harm (in those cases where it has been suffered). Thus, she is expected to exhibit uncommon mental discipline.

• ¹⁸³

  See Frank J., Law and the Modern Mind (London: Doubleday, 1949). Frank pursues the theme that ‘the trial court’s “finding” of the facts involves a multitude of elusive factors’ (at p x). He also argues that ‘the court room is a place of surging emotions’. In light of these points, Frank concludes that judicial responses to matters of fact take the form of ‘plus or minus reactions’ (at p xi). By this he means that the emotional response of the judge to the case before her plays a part in determining how she exercises discretion when determining matters of fact (at pp x–xi, xiii).

• ¹⁸⁴

  Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 34. See also note 110 above (and associated text) on the ‘advantage of hindsight’.

• ¹⁸⁵

  See notes 81–83 and note 87 above (and associated text).

• ¹⁸⁶

  See note 83 above (and associated text).

• ¹⁸⁷

  See Volokh, E, ‘The Mechanisms of the Slippery Slope’ (2003) 116 Harv Law Rev 1026 at 1107. See also Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 61, noting that judges ‘striv[e] not to appear old-fashioned fuddy duddies’.

• ¹⁸⁸

  CBS Songs v Amstrad Consumer Electronics plc [1988] AC 1013 at 1059.

• ¹⁸⁹

  See also Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 34–35, suggesting that judges may be ‘prone’ to make their decisions with the benefit of hindsight.

• ¹⁹⁰

  Wilsher v Essex Area Health Authority [1988] AC 1074 at 1090, per Lord Bridge.

• ¹⁹¹

  [1973] 1 WLR 1. While, for the purposes of exposition, the text concentrates on McGhee, the analysis offered has relevance to the House of Lords’ decision in Fairchild v Glenhaven Funeral Services [2002] UKHL 22; [2003] 1 AC 32.

• ¹⁹²

  Ibid While, for the purposes of exposition at 6.

• ¹⁹³

  Ibid While, for the purposes of exposition. In staking out the position described in the text, the House effectively threw the burden of proof concerning causation onto the defendant. See Deakin S., Johnston A., and Markesinis B. S., Tort Law (5th edn, Oxford: Clarendon Press, 2003) at p 189. Only Lord Wilberforce acknowledged in terms that a reversal in the burden of proof was the upshot of the House’s decision.

• ¹⁹⁴

  See Moran M., Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Pres, 2003) at p 260, on ‘indifference’ as the morally salient core of negligence law.

• ¹⁹⁵

  On loss distribution, see Deakin S., Johnston A., and Markesinis B. S., Tort Law (5th edn, Oxford: Clarendon Press, 2003) at p 29; and Calabresi G., The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970), ch 4.

• ¹⁹⁶

  See eg Clark v MacLennan [1983] 1 All ER 416; and Fitzgerald v Lane [1987] QB 781.

• ¹⁹⁷

  See eg Dulieu v White & Sons [1901] 2 KB 669, establishing that psychiatric injury could ground a negligence claim; and Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, establishing that pure economic loss could ground a negligence claim.

• ¹⁹⁸

  See note 66 above (and associated text).

• ¹⁹⁹

  Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at p 60. The process of development that Atiyah criticises may reflect a tendency among some experts in the field of mental illness to conflate (a) those conditions that are seriously disabling and (b) unhappiness. See eg James O., Britain on the Couch: Why We’re Unhappier Compared with 1950 Despite Being Richer (London: Arrow Books, 1998) at p 30. See also Furedi F. The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002 (revd edn)) at p 92, criticising the ‘medicalisation of experience’.

• ²⁰⁰

  Atiyah (1997), Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997), at p 61.

• ²⁰¹

  Ibid Atiyah, P. S., The Damages Lottery (Oxford: Hart Publishing, 1997).

• ²⁰²

  On a non-normative account, a person suffers harm when she suffers a setback to her interests. This account of harm is more anodyne than normative accounts. The latter identify ‘wrongdoing’ as a necessary feature of harm. On these two conceptions of harm, see Feinberg J., The Moral Limits of the Criminal Law, Vol 1: Harm to Others (Oxford: Oxford University Press, 1984), ch 1.

• ²⁰³

  Weir J. A., Tort Law (Oxford: Oxford University Press, 2002) at p 186.

• ²⁰⁴

  On post-traumatic stress disorder, see White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455 at 488–489, per Lord Goff; and Deakin S., Johnston A., and Markesinis B. S., Tort Law (5th edn, Oxford: Clarendon Press, 2003) at pp 96–97. See also Lamprecht, F, and Sack, M, ‘Posttraumatic Stress Disorder Revisited’ (2002) 64 Psychosomatic Medicine 222.

• ²⁰⁵

  See McMichael v United Kingdom, Series A no 307-B (1993) (anxiety and trauma); Olsson v Sweden, Series A no 130 (1988) (distress); and Papamichalopoulos v Greece, Series A no 330-B (1995) (frustration and feelings of helplessness). The point made in the text has direct relevance to judges adjudicating negligence claims, because the doctrine of indirect horizontal effect obliges them to develop private law in conformity with Convention rights, and, by operation of s 2 of the Human Rights Act 1998, they are obliged to take account of ECtHR jurisprudence where it is relevant to the disputes that come before them. For further discussion of these points, see Wright J., Tort Law and Human Rights (Oxford: Hart Publishing, 2001), ch 2.

• ²⁰⁶

  On vagueness and reasonable disagreement in the law, see Kutz C. L., ‘Just Disagreement: Indeterminacy and Rationality in the Rule of Law’ (1994) 103 Yale LJ 1001 at 1004–1005, 1029–1030.

• ²⁰⁷

  Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 22–24 lends some support to the suggestion made in the text. He describes claimants seeking to advance ‘nuisance value’, ‘exaggerated’, or ‘wholly bogus’ claims with the intention of encouraging the alleged wrongdoer to settle them out of court. See also Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at p 262.

• ²⁰⁸

  Cf Olson (1991), Ibid Olson, W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991), at p 342, characterising behaviour of the sort described in the text as ‘self-seeking’.

• ²⁰⁹

  209S

• ²¹⁰

  Ibid Sullivan, R. J., Immanuel Kant’s Moral Philosophy (Cambridge: Cambridge University Press, 1989) at pp 198–200. See also Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at p 339, arguing that blame culture in the USA is ‘born of [among other things] an underlying failure … to attach moral significance to wrongful accusation’.

• ²¹¹

  See Sullivan R. J., An Introduction to Kant’s Ethics (Cambridge: Cambridge University Press, 1994) at p 29. In his writings on practical matters, Kant does not address the issue of blame culture (in the negative sense). But (in line with his commitment to the categorical imperative) he identifies law as an institution that should adequately accommodate the interests of all its addressees. This feature of his thinking (the universal principle of justice) supports the conclusion that he would have seen those modes of behaviour associated with blame culture (in the negative sense) as unacceptable. On the universal principle of justice, see Sullivan (1994) at pp 11–13. See also Reiss H. (ed), Kant: Political Writings (Cambridge: Cambridge University Press, 1991) at pp 136–137. The argument advanced in the text makes the large assumption that Kantian moral philosophy is applicable to corporations and other non-human legal entities. This assumption cannot be examined in the compass of this essay.

• ²¹²

  Fukuyama F., The Great Disruption: Human Nature and the Reconstitution of Social Order (London: Profile Books, 1999) at p 10. Cf Furedi F. The Culture of Fear: Risk-Taking and the Morality of Low Expectations (London: Continuum, 2002 (revd edn)) at pp 139–142.

• ²¹³

  See Atiyah P. S., The Damages Lottery (Oxford: Hart Publishing, 1997) at pp 60–61; and Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004) at pp 3, 7, 12, 19.

• ²¹⁴

  Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495.

• ²¹⁵

  Ibid Brooks v Commissioner of Police for the Metropoliss at [30], where the locution ‘going too far’ is taken from Lord Steyn’s speech.

• ²¹⁶

  The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (1999) (Cm 4262–1).

• ²¹⁷

  [2005] UKHL 24; [2005] 1 WLR 1495 at [12], per Lord Steyn.

• ²¹⁸

  Ibid UKHL 24.

• ²¹⁹

  Ibid UKHL 24.

• ²²⁰

  Ibid UKHL 24 at [24], per Lord Steyn.

• ²²¹

  Ibid UKHL 24 at [33], invoking Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59, 62–64, per Lord Keith.

• ²²²

  Ibid UKHL 24 at [19]–[20], per Lord Steyn. The ‘principle’ invoked by Lord Steyn is perhaps better categorised as the policy of avoiding ‘overkill’. See Mullender R., ‘Prima Facie Rights, Rationality and the Law of Negligence’, ch 6 in M. Kramer (ed) Rights, Wrongs and Responsibilities (New York: Palgrave, 2001) at p 180.

• ²²³

  [2005] UKHL 24; [2005] 1 WLR 1495 at [33].

• ²²⁴

  Ibid UKHL 24 at [30].

• ²²⁵

  Ibid UKHL 24.

• ²²⁶

  See Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at pp 69–70, identifying a readiness to sue defendants for harms wrongfully inflicted by others as a feature of blame culture. In the same passage of text, Olson also notes that the availability of liability insurance may prompt plaintiffs to bring claims of the sort described here. See also Williams, K, ‘State of Fear: Britain’s “Compensation Culture” Reviewed’ (2005) 25 Legal Studies 499 at 511, n 62, ‘[o]n the connection between the availability of liability insurance and the symbiotic development of negligence liability’.

• ²²⁷

  See notes 217–219 above.

• ²²⁸

  Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at pp 89–92, identifying vaguely specified arguments for the imposition of liability as a feature of blame culture.

• ²²⁹

  See Caparo Industries plc v Dickman [1990] 2 AC 605 at 620–621, where Lord Bridge drew a distinction between statements put into ‘general circulation’ and those made to specific persons for specific purposes in order to limit the range of circumstances in which liability for negligent misstatement could be imposed under the Hedley Byrne principle; Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211, where considerations of policy (eg not deflecting the defendant from the performance of a public function; not disrupting complex insurance arrangements) were invoked as grounds for rejecting an otherwise sound claim; and Osman v Ferguson [1993] 4 All ER 344, where the decision to strike out a claim against the police was justified by reference to a policy-based ‘immunity’ from suit.

• ²³⁰

  Cardozo B. N., The Paradoxes of Legal Science (New York: University of Columbia Press, 1928) at p 72.

• ²³¹

  Ibid Cardozo, B. N., The Paradoxes of Legal Science (New York: University of Columbia Press, 1928).

• ²³²

  Ibid Cardozo, B. N., The Paradoxes of Legal Science (New York: University of Columbia Press, 1928). See also p 75, where Cardozo states that judges ‘are balancing and compromising and adjusting every moment that they judge’.

• ²³³

  The ideal of distributive justice specifies that the law and other public institutions should adequately accommodate the interests of all those affected by their operations. See Mullender R., ‘Prima Facie Rights, Rationality, and the Law of Negligence’, ch 6 in M. Kramer (ed) Risks, Wrongs and Responsibilities (Basingstoke: Palgrave, 2001) at p 186. On distributive justice in negligence law, see note 175 above (and associated text).

• ²³⁴

  See Mullender R., ‘Treading a More Uncertain Path: Negligence and the House of Lords’ (1997) 5 Tort Law Review 180.

• ²³⁵

  Ibid Mullender, R., ‘Treading a More Uncertain Path: Negligence and the House of Lords’ (1997). See also note 16 above, on the ‘retreat’ from Anns, and note 229, on some of the means used by judges to limit the scope of negligence law.

• ²³⁶

  See Stanton K. M., ‘The Decline of Tort Liability for Professional Negligence’ (1991) 44 CLP 83 at 99–103.

• ²³⁷

  The normative argument offered in the text takes the form of ‘verdict’ or ‘diagnosis’ in the sense specified in Oakeshott M., On Human Conduct (Oxford: Clarendon Press, 1975) at pp 36–38. Oakeshott argues that those who participate in and reflect upon particular practices typically have an understanding of their ‘postulates’. Hence, they are able to determine when the conduct of participants (or those who claim to be participants) is ‘unsatisfactory, wanting, amiss, or otherwise objectionable’. In the case of negligence law, corrective justice is, for example, a postulate. Hence, arguments for the imposition of liability that fail to engage this ideal will appear objectionable.

• ²³⁸

  While the matter cannot be pursued in detail here, the statement made in the text needs to be qualified. In some cases, conventional negligence doctrine (eg proof of causation on the balance of probabilities) will not provide a basis on which to seek redress for wrongdoing. This point applies, for example, to Fairchild v Glenhaven Funeral Services [2002] UKHL 22; [2003] 1 AC 32, where a succession of employers had negligently exposed the claimant to asbestos dust.

• ²³⁹

  See X v Bedfordshire County Council [1995] 2 AC 633 at 749, per Lord Browne-Wilkinson, emphasising the central importance of corrective justice in negligence law.

• ²⁴⁰

  Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at pp 249–269. The junk claims described by Olson take a wide variety of forms. Some are brought by claimants who are ‘honest but naïve’, while others are brought by ‘opportunists’ (at p 254). Moreover, the term ‘opportunists’ (as used by Olson) is broad enough to embrace both those who seek to exploit, inter alia, vagueness in the law and those whose conduct is fraudulent. The possibility of fraudulent claims is taken seriously by some addressees of the law. See Williams K., ‘State of Fear: Britain’s “Compensation Culture” Reviewed’ (2005) 25 Legal Studies 499 at 512, n 75, noting that ‘[i]n November 2004, several local authorities set up a telephone hotline to encourage the public to “name and shame” people suspected of making false compensation claims’.

• ²⁴¹

  Olson (1991), Ibid Olson, W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991), at p 340, lamenting the passing, in the USA, of ‘the old legal ethics’, according to which ‘the good lawyer did not go about looking for chances to litigate’. But see also p 254, where Olson notes that H L Mencken was complaining about unmeritorious claims (albeit not in the area of negligence law) as long ago as 1927.

• ²⁴²

  Mullender R., ‘Tort, Human Rights, and Common Law Culture’ (2003) 23 OJLS 301 at 312–313.

• ²⁴³

  By acting in ways that serve to sustain a co-operative and mutually beneficial institution, addressees of the law discharge a personal virtue of justice. See Mullender, R, and Speirs, A, ‘Negligence, Psychiatric Injury, and the Altruism Principle’ (2000) 20 OJLS 645 at 653, n 63, drawing on Aquinas T., Summa Theologica (London: Blackfriars, 1963–1981). See also O’Neill O., Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1998) at p 187, arguing that institutions are ‘never perfect’, with the result that the ‘virtues of justice’ are ‘never redundant’. In the same passage of text, O’Neill identifies respect for others and truthfulness as virtues of justice.

• ²⁴⁴

  The principle that rights and responsibilities should stand in a complementary relationship features prominently in New Labour rhetoric and in the political philosophy most closely associated with the Blair administration. Hence, the omission of this principle from the Compensation Bill and the very limited attention given to it in the BRTF’s Better Routes to Redress is somewhat surprising. On rights and responsibilities in New Labour thought, see Mullender, R, ‘Theorising the Third Way: Qualified Consequentialism, the Proportionality Principle, and the New Social Democracy’ (2000) 27 J of Law and Soc 493 at 497. See also Arculus D., et al, ‘Better Routes to Redress’ (London: Better Regulation Task Force, 2004) at p 37.

• ²⁴⁵

  Fukuyama F., The Great Disruption: Human Nature and the Reconstitution of Social Order (London: Profile Books, 1999) at p 17.

• ²⁴⁶

  Olson throws light on the difficulties faced by judges when deciding claims against medical practitioners. In his discussion of ‘a Harvard study of medical malpractice in New York’, he states that ‘in the overwhelming majority of cases where suits were filed the doctor had not been negligent’. But Olson notes that ‘the study … [also] found that in the overwhelming majority of cases where doctors had been negligent they got off without being sued’. See Olson W., The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books, 1991) at p 270, referring to Brennan, R A, Leape, L L, Laird, M M, Herbert, L, Localio, A R, Lawthers, A G, et al, ‘Incidence of Adverse Events and Negligence in Hospitalised Patients: Results of the Harvard Medical Practice Study’ (1991) 324 New Eng J of Med 370.

• ²⁴⁷

  Donoghue v Stevenson [1932] AC 562 at 619.

• ²⁴⁸

  See note 18 above (and associated text).

• ²⁴⁹

  Barrett v Enfield LBC [2001] 2 AC 550 at 557, per Lord Browne-Wilkinson, stating that, in an area of negligence law that is ‘uncertain and developing’, it is ‘normally inappropriate to strike out’.

• ¹

  Lecturer, Newcastle Law School. Thanks are due to John Alder and Michael Jones for their comments on earlier drafts of this article. Thanks are also due to Ann Sinclair for her research assistance.