Torts, Common Law, Social utility

 This is hoisted out of a comment thread in response to a reference regarding the effectiveness of tort law: an idealized view (not shared by the author of the reference) of the common law, and tortious (or similar) remedies as being entirely adequate if only left to themselves.

 

First-year law students are given a set of required courses to take and (at my school and the other ones I know about) there are three courses on true common-law topics: Property, Contract Law, and Torts. (The topics of other courses, like Criminal Law and Civil Procedure were once common-law but underwent extensive statutory revision in the late 19th Century: Canada now has (as of 1954) no common-law criminal offences [1] and civil procedure was so heavily transformed in the late 19th Century by statute as to become unrecognizable ("special pleading" has now no concrete referent).)

 

Unlike property (about types of land tenure) and contracts (the outgrowth of the old action on the writ of assumpsit), in principle, torts have no real unity. They are a grab-bag of items based on a number of older causes of action.

 

In about 1800 torts were a minor branch of the law, and at the time trespass to property (trespass proper and conversion) would probably have been the most important, followed by assault and battery (trespass to the person). Actions lying in negligence were rare, though negligence was also an important concept in the law of nuisance and in some criminal writs.

 

By the time I was taking torts, the nominate torts got about one week. The rest of the year was spent on negligence.

 

Negligence is now a widespread and important legal cause of action, but that is somewhat accidental and in neither of the two important branches is it well-suited to the social ends which it is being used to serve.

 

Negligence is based on the idea of the care which would be taken by "the reasonable man" - generally,  not an exceptional person, "the man on the top of the Clapham omnibus", although in professional contexts an elevated duty of care is required. But suits in negligence have by now long become a means of addressing issues where negligence can be invoked only by straining at gnats and  swallowing camels, under the broad heading of "distributive justice".

 

The most obvious case is what happened with the development of the automobile. There were accidents involving horse-drawn vehicles - unlike an automobile, a horse can be spooked and can also be vicious. But the advent of the car as a force-multiplier and a speed-multiplier generated a world where not only were there many more deaths and injuries but where the majority of them could be attributed in some sense to negligence - either prior negligence (driving too fast, following too close, drinking) or immediate negligence (letting your attention wander). And while the dead need nothing, injuries in automobile accidents generate long-lasting treatment and alleviation scenarios.

 

What emerged was an odd way of dealing with the financial costs of the injured. (The dead are, at common law, cheap. Damages for wrongful death do not exist at common law (unless you want to revert to wergild); they are a creation of statute. Paraplegics are expensive, and damages may also accrue for lost potential earnings. As one of my teachers said, from a civil law perspective, if you run over somebody who is young, well-off, and badly injured, it makes sense to back up and ensure he or she is dead; it's much cheaper. The criminal law does have a different view...) Everybody buys mandatory automobile insurance giving the insurers rights of subrogation. Traffic accidents generate civil suits in negligence even in cases where the standard test would, if actually applied, collapse. (A normal individual does not always keep to the speed limit. A normal individual does not have attention which never wanders.) Insurance settlements supply the injured with support based on a standard which is feasible only because, in effect, the entire adult population (to a reasonably close approximation) is subsidizing the injured through mandatory insurance. Even then, the remedy is a single lump sum.

 

That's the solution tort law has developed. Analogous approaches have developed to professional malpractice. (Surgeons make mistakes. They are insured to prevent those mistakes from beggaring them.) Occasionally there are situations where negligence can be absolutely shown not to exist. (Previously unknown and unknowable risks, acts of God, cases where injury can be shown to be entirely the plaintiff's fault.) There regularly ensues indignation that there is nobody to sue, nobody responsible.

 

A better solution would be a minimum guaranteed income plus public long-term support for the injured. Allocation of resources is much more effective when it can be planned, and when the process is no longer funnelled through insurance companies and lawyers, who take their own cut of the proceeds. And road safety would be better served by setting and enforcing serious standards (driver training, road safety, road construction, speed limits) rather  than having lax standards with a notional motivation to improvement provided by liability.

 

The other major modern branch of negligence law is in product liability. Until the 1930s, generally, product liability was a contractual matter, with remedies in damages or restitution under the common law or under its codification in the Sale of Goods Act (UCC in the US). Donoghue v. Stevenson changed that, and a whole elaborate case law regarding tortious product liability derived from that.

 

Under contract law, goods not fit for use get their price refunded, or a substitution of goods fit for use. The appropriate remedy for a bottle of ginger beer with a decaying snail in it would be the price of another bottle of ginger beer. Under the law of torts, damages may be had for physical and mental distress.

 

It has its own problems. Damages get awarded for cases where warnings are not provided for the use of something in an inappropriate and unexpected manner. (Lawnmowers now come with warnings not to use them for hedge trimming because some idiot once won a lawsuit after doing so, despite the fact that it's hard to square that with the reasonable man test.) Court actions are expensive, and many cases on product liability are viable only as class action lawsuits unless the victim has deep pockets.

 

Again, though, if the aim of society is to have products match expectations and to minimize poor outcomes, this is a very poor tool. Detailed regulatory conditions specific to an industry are a much better one: detailed regulatory conditions with the enforcement being requiring conformance to the law rather than simply fines for breaking it.

 

One fundamental problem with negligence is that the only relief a suit in negligence will bring is damages, and very occasionally restitution. If a person or a company with deep pockets feels that the costs of an occasional lawsuit are worth it, they can just keep on going what they want to. (Mr. Toad and motor cars come to mind. And it may be cheaper to skimp on quality control and pay occasional damages than impose elaborate quality control mechanisms.)

 

(I will note in passing that the above does not apply to nuisance cases. You can get injunctive relief in nuisance, and in riparian rights cases, and so forth, which involve property rights. But historically, where legal rights of those sorts would actually have the effect of constraining popular activities - manufacturing, railways, etc. - the strict rights under the law tend not to be generally applied, even before they get constrained by statute.)

 

In practice, there is no true common law left.  The process was deep-sixed in the late 19th Century on both the civil and criminal sides. Almost everything else has had so much legislation applied that common-law rights are a vague substratum. (There are a few remaining areas: commercial contracts of certain sorts; some commercial leases; suits for trespass and assault.) Torts look like their common-law ancestors but they are so constrained by other legislative conditions - mandatory automobile insurance, mandatory professional insurance, legislation directly addressing balance of proof, etc. - that they really have no similarity to their roots.

 

There's a reason for that. The common law (not just the law of torts)  was a complex maze of rules organized around a set of causes of action which hadn't been updated since before the Tudors, and which really had no obvious organizing principle relevant to how the world has been organized for the past century and a half, let alone for the past few decades.

 

Some "common-law principles" remain - adversarial as opposed to inquisitorial procedure, for example, though even that is blurred by certain types of administrative tribunal. And the Anglo-Canadian model of stare decisis is still alive and kicking. But the idea that the common law is part of an ideal past is naive.

 

[1]I have a family connection here, as it was a great-great uncle who codified Canada's common-law criminal offences (based on English work by Sir James Fitzjames Stephen, Virginia Woolf's uncle), which work became the basis of the first Criminal Code.

I almost forgot...

Ironically, this page had an ad put in immediately below it for "Wealthsimple: buy and sell stocks". Google's AI has a long way to go at determining the context of the links it put in...