Book Reviews

pp.62–64

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Rediscovering the law of negligence

Allan Beever

Hart Publishing, 2007

ISBN: 978-1-84113-686-8.

pp 515 + xxxi

£50 (hb)

The law of negligence continues to puzzle lawyers, from common and civil law jurisdictions alike. Whether phrased ‘faute’, ‘culpa’ or ‘a duty to use reasonable care’, lawyers demand a legal framework which enables them to apply the law to cases with a sufficient degree of predictability. In recent years, this is precisely what the courts have seemed unable to provide. Cases such as White v Jones [1995] 2 AC 207 and Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 demonstrate the difficulty of uniting principle with ‘practical justice’. In contrast, attempts by the House of Lords to provide ‘hard and fast’ rules in cases such as Murphy v Brentwood District Council [1991] 1 AC 398 and Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 have come under challenge by English and Commonwealth courts for their harshness, arbitrary line drawing and unjust denial of claims to meritorious claimants. It has long been the plea of law students for someone to clarify the tort of negligence.

Beever seeks to achieve this objective by ‘rediscovering’ the law of negligence and re-asserting principle which, in his view, has been wrongly cast aside by those promoting policy-based reasoning. Policy, he argues, is so ubiquitous that modern lawyers no longer understand how a principled account of the law could operate (page 8). It is incapable of giving certainty, transparency, and principled justice, and is inherently undemocratic. How can we accept that an unelected, unrepresentative and unaccountable judiciary should make such key decisions? In essence, if this is the case, then the only answer, he argues, is to legislate and use Parliament to provide the necessary legitimacy for such policy-led developments (page 8 and also page 14). Here, he singles out a number of key ‘offenders’, readily identifiable to his audience: Jane Stapleton, Peter Cane, John Fleming and his judicial bête noir, Lord Denning.

Denning, in particular, receives criticism due to his unrepentant interventionism. Consider his statement in Lamb v Camden LBC [1981] 1 QB 644 at 636–7: ‘The truth is that all these three, duty, remoteness and causation, are all devices by which the courts limit the range of liability for negligence or nuisance … All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide.’ His judgment is described by Beever as ‘incendiary’ and ‘extraordinary’ (page 153). Note also his criticism of Lord Denning in Watt v Hertfordshire CC [1954] 1 WLR 835 at page 108 (another case which, according to his thesis, wrongly refers to utilitarian concerns rather than simply applying the principles of corrective justice). Yet, Denning is clearly not a typical member of the judiciary and it would be a mistake to assume that all supporters of policy-based reasoning are whole-hearted supporters of his Lordship.

However, in criticising well-respected authors such as Stapleton, Cane and Fleming, Beever is raising fundamental questions about how lawyers today approach and analyse the tort of negligence. This, then, is not a minor quibble as to the result of a few controversial cases. This is an attack at the very heart of our understanding of how negligence works.

In so doing, Beever provides a lucid and detailed argument in favour of the ability of the principle of corrective justice to improve our working knowledge of the tort of negligence, and further to provide a degree of conceptual unity currently lacking from the law. His ambitions are stated in the first two chapters of the book, which seek to promote corrective justice as a means of rescuing us from the disintegration of the modern tort of negligence. In so doing, we go back to Lord Atkin in Donoghue v Stevenson [1932] AC 562 and his general statement of principle, supported by Bolton v Stone [1951] AC 850, Cardozo CJ in Palsgraf v Long Island Railroad Co 162 NE 99 (NY CA 1928), The Wagon Mound (No 2) [1967] 1 AC 617 and The Wagon Mound (No 1) Ltd [1961] AC 388, from which Beever derives a unified statement of principle: the defendant has wronged the claimant if he created an unreasonable risk to the claimant of the injury that the claimant has suffered. This can be broken down further. Breach of duty is identified in terms of the unreasonable creation of the risk: the objective test justified in terms of treating both claimant and defendant equally (see chapter 3: The Standard of Care). A duty of care exists if it is reasonably foreseeable that the claimant would be injured by the defendant’s action (see chapters 4: Duty and Remoteness and 5: Modern Approaches to the Duty of Care) and the remoteness test satisfied if the actual injury suffered is a reasonably foreseeable consequence of the defendant’s action (pages 133 and 512).

Having stated this thesis, Beever proceeds to test it in relation to negligence law itself: breach, duty of care, remoteness, nonfeasance, economic loss, public authority liability, defences, wrongful birth and conception, nervous shock, causation and the questions of proof. This leads to some provocative conclusions: the ‘egg-shell skull’ rule, the distinction between primary and secondary victims, and the rule of res ipsa loquitur should all be abolished as inconsistent with corrective justice (chapters 4, 11 and 13), while recovery for negligent misstatement should be reclassified, not as a cause of action in negligence, but as belonging primarily to the ‘law of consents’ (chapter 8: Negligent misrepresentation and assumption of responsibility). Cases are re-interpreted to render them consistent with the principle of corrective justice, and a theory of negligence based on the violation of rights promoted. Anti -ci pating criticism that the latter is not the law of the courts, Beever responds: ‘If focusing on rights enables the academic better to explain the law than the courts with their focus on remedies are able to do, then she must adopt that methodology’ (page 215).

Yet, taking such a stance leaves one vulnerable to obvious challenges. How, for example, does one explain vicarious liability – a doctrine which serves to impose liability on an innocent third party? Whilst Weinrib attempts to fit the doctrine within the principle of corrective justice (see EJ Weinrib, The Idea of Private Law (Harvard University Press, 1995) at 185–187), Beever prefers not to take such a stand. The doctrine is, in his view, external to the law of negligence and merely parasitic (pages 35–36). It is enough that it requires fault in the first place. It is for the reader to consider whether this is an adequate response. Other concerns are structural: is one forced to dismiss a considerable body of case-law as wrongly decided? This runs the risk of providing a theory divorced from the actual application of the modern law. Beever tackles this criticism head on. In rediscovering principle, he is not seeking to undermine modern law, but to understand it. This will, he concedes, require a focus on key cases which instantiate corrective justice, and a recognition that controversial cases may be wrongly decided. His aim is merely to commence a dialogue; a new understanding of how negligence works which will promote more consistent and coherent legal development.

This is an ambitious, well-researched and thought-provoking work, which will appeal to those interested in the academic debate as to the nature of the tort of negligence, reviving the argument that it could be unified under a set of key principles. It does not set out to be a comprehensive study of the subject – Beever at one stage modestly terms it ‘a contribution to the beginnings of a research project’ (page 39) – but, rather, to encourage discussion. On a basic level, if we are concerned by judicial use of policy arguments, their legitimacy and lack of transparency, we should not merely accept this as an inherent part of tort law, but question their very use. It is, of course, a far greater step to suggest that tort law should then proceed to divorce itself from policy concerns and questions of distributive justice. Beever, in arguing against policy, accepts that he is swimming against the tide of modern law, but is undaunted. It remains to be seen whether the appeal of principle can, with our current acceptance of the socio-political and economic impact of tort law, attract support for the alternative form of reasoning which he so strongly advocates.

Dr Paula Giliker

Reader in Comparative Law

University of Bristol