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McGill Law Journal
McGill Law Journal
Tort Law, Risk, and Technological Innovation in
England
Ken Oliphant
Technological Innovation and Civil Responsibility
Volume 59, numéro 4, June 2014
URI : id.erudit.org/iderudit/1026130ar
DOI : 10.7202/1026130ar
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McGill Law Journal / Revue de droit de McGill
Résumé de l'article
Cet article se penche sur l’impact de l’innovation
technologique, et des risques qui en découlent, sur le
développement du droit anglais de la responsabilité délictuelle
dans l’ère moderne, qui débuta vers 1750. À une époque où les
vieilles formes d’actions perdaient en importance, la
révolution industrielle et les risques qu’elle engendra
produisirent des changements sociaux sans précédent. On
introduisit de nouveaux mécanismes, tels l’assurance, la
réglementation et l’assistance sociale, afin de contrôler ces
risques et d’atténuer leurs effets. Le droit de la responsabilité
délictuelle dut aussi s’adapter et sa forme moderne porte
encore l'empreinte de cette histoire. Cependant, des questions
fondamentales concernant la fonction appropriée du droit de
la responsabilité délictuelle et des mécanismes alternatifs
réglementaires et de compensation demeurent irrésolues.
ISSN 0024-9041 (imprimé)
1920-6356 (numérique)
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Ken Oliphant "Tort Law, Risk, and Technological Innovation in
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10.7202/1026130ar
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McGill Law Journal — Revue de droit de McGill
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION
IN ENGLAND
Ken Oliphant*
This paper considers the impact of technological innovation—and the risks arising from
it—on the development of English tort law in
the modern era, dating from around 1750. At a
time when the old forms of action were losing
their grip, unprecedented social changes resulted from the Industrial Revolution and the risks
that it created. New mechanisms (insurance,
regulation and social welfare) were introduced
to control these risks and mitigate their effects.
Tort law too was obliged to adapt, and its modern contours bear the mark of this history.
However, fundamental questions about the
proper function of tort law relative to alternative compensatory and regulatory mechanisms
remain to be satisfactorily resolved.
*
Cet article se penche sur l’impact de
l’innovation technologique, et des risques qui en
découlent, sur le développement du droit anglais de la responsabilité délictuelle dans l’ère
moderne, qui débuta vers 1750. À une époque
où les vieilles formes d’actions perdaient en importance, la révolution industrielle et les
risques qu’elle engendra produisirent des changements sociaux sans précédent. On introduisit
de nouveaux mécanismes, tels l’assurance, la
réglementation et l’assistance sociale, afin de
contrôler ces risques et d’atténuer leurs effets.
Le droit de la responsabilité délictuelle dut aussi s’adapter et sa forme moderne porte encore
l'empreinte de cette histoire. Cependant, des
questions fondamentales concernant la fonction
appropriée du droit de la responsabilité délictuelle et des mécanismes alternatifs réglementaires et de compensation demeurent irrésolues.
Professor of Tort Law, University of Bristol. The author would like to thank two anonymous peer reviewers for their helpful comments on his initial submission, and the editors at the McGill Law Journal for their very careful editing.
© Ken Oliphant 2014
Citation: (2014) 59:4 McGill LJ 819 — Référence : (2014) 59 : 4 RD McGill 819
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Introduction
I.
Technological Innovation and its Impact on
Tort Law
A. Road Building and Carriage Construction:
Highway Accidents in the Eighteenth and
Nineteenth Centuries
B. Construction and Engineering Technology:
Bursting Reservoirs, Leaking Dams, and the
Acceptance of Strict Liability
C. Modern Transport: The Railways and the
Motor Car
1. Setting the Scene
2. The Railways
3. The Motor Car
D. The Industrial Workplace
E. Assessing the Impact of Technological Innovation
on Tort Law
II.
Technologies for Controlling Risk
A. Insurance
B. Regulation
C. Social Welfare
Conclusion
821
822
822
823
826
826
827
829
832
837
838
838
841
843
844
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
821
Introduction
This paper considers the impact of technological innovation—and the
risks arising from it—on the development of English tort law. It concentrates on the latter’s formative period in the decades leading up to the
abolition of the old forms of action in 1875 and the transition to the modern law.1 As the hold of the former procedural categories loosened, courts
and scholars engaged in the task of rethinking fundamental questions—in
particular, the proper balance between strict liability and liability for
fault. 2 During broadly the same period, the Industrial Revolution—
beginning around 1750—also wrought fundamental changes to English
society, and brought unprecedented risks alongside the undoubted benefits. The question that arises is whether and to what extent the massive
technological and social changes that resulted impacted the development
of the law of tort as it acquired its modern form.3 That is the focus of Part
I of the paper.
But the inquiry has a further dimension. Tort law’s development was
shaped not only by the risks created by technological innovation but also
by the alternative compensatory and regulatory “technologies” that were
introduced to control those risks or mitigate their effects. Tort law’s interaction with these other systems—insurance, regulation, and social welfare—gave rise to immediate practical issues, and raised fundamental
and still not fully resolved questions about tort law’s function in modern
society. Part II addresses these issues.
1
As to the forms of action, and the transition to the modern law, see Mark Lunney &
Ken Oliphant, Tort Law: Text & Materials, 5th ed (Oxford: Oxford University Press,
2013) at 1–17.
2
See Ken Oliphant, “Rylands v Fletcher and the Emergence of Enterprise Liability in the
Common Law” in Helmut Koziol & Barbara C Steininger, eds, European Tort Law 2004
(Vienna: Springer, 2005) 81.
3
Naturally, it is not suggested that tort law’s development was historically determined,
only that it co-evolved with other social systems and that circumstances external to tort
law may on occasion have triggered changes in it. See further John Bell and David Ibbetson, European Legal Development: The Case of Tort (Cambridge: Cambridge University Press, 2012) at 23.
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I. Technological Innovation and its Impact on Tort Law
A. Road Building and Carriage Construction: Highway Accidents in the
Eighteenth and Nineteenth Centuries
Even in the days of horse-drawn carriages, the highway could be a
dangerous place, the more so as technological advances led to considerable
increases in speed: from 4–5 m.p.h. in 1750 to 10–14 m.p.h. by 1830.4
Stagecoaches originated around 1630, but were partially eclipsed by the
faster mail coaches introduced in the late eighteenth century, which benefited from diverse innovations in construction technology and reached
their maximum mileage in 1834.5 By this time, there were fifteen times as
many road passengers as forty years before, and they were conveyed by
frequently large, highly capitalized coach firms.6 Over the same period,
there were also significant improvements in road construction and
maintenance, resulting from the application of new engineering techniques. These too permitted higher speeds than before.7
With higher speeds came an increase in the number of accidents. The
“running-down cases” that resulted put under considerable stress English
law’s old distinction between the alternative actions in Trespass and
Case, and paved the way for the recognition of a general liability for negligence in modern English law.8 In the period of the forms of action, which
Parliament ultimately abolished in 1875,9 Trespass covered only “direct”
injuries, and the Action on the Case was developed to provide a remedy in
situations where the injury was “indirect”—at least where there was negligence, which was recognized as a requirement from the seventeenth century on.10 In time, the category of indirect injuries came to be regarded as
embracing any injury resulting from negligence. The final step was to ac-
4
WR Cornish & G de N Clark, Law and Society in England, 1750–1950 (London: Sweet
& Maxwell, 1989) at 484.
5
Philip Bagwell & Peter Lyth, Transport in Britain: From Canal Lock to Gridlock (London: Hambledon and London, 2002) at 39–40.
6
Michael Lobban, “Tort”, in William Cornish et al, The Oxford History of the Laws of
England: Volume XII: 1820–1914 Private Law (Oxford: Oxford University Press, 2010)
877 at 904.
7
Bagwell & Lyth, supra note 5 at 47–49.
8
See generally Lobban, supra note 6 at 904–11.
9
See generally FW Maitland, The Forms of Action at Common Law, AH Chaytor & WJ
Whittaker, eds, (London: Cambridge University Press, 1936).
10
Mitchil v Alestree (1676), 1 Vent 295, 86 ER 190 (KB) (concerning injury to a bystander);
Aston v Heaven (1797), 2 Esp 533, 170 ER 445 (CP) [Aston] (concerning injury to a coach
passenger). As to the notoriously problematic distinction between direct and indirect injury, see Lunney & Oliphant, supra note 1 at 8–9.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
823
cept that plaintiffs might sue in Case instead of Trespass even though
their injury was the immediate result of the defendant’s act, provided the
collision was unintentional.11 A particular factor pointing toward the expansion of the Action on the Case was that the coachman was rarely
worth suing personally, so the plaintiff was obliged to rely on the principle
of respondeat superior (vicarious liability), which was recognized only in
Case. The liability nevertheless rested on the coachman’s negligence, and
insofar as it arose independently of Trespass or any prior relationship between the parties may be regarded as a first step toward the recognition
of negligence as an independent tort.12
B. Construction and Engineering Technology: Bursting Reservoirs, Leaking
Dams, and the Acceptance of Strict Liability
In apparent contrast with the fault-based approach adopted in the
running-down cases is the development of strict liability in respect of at
least some forms of construction and engineering works. The leading case
is Rylands v. Fletcher,13 decided by the House of Lords in 1868. The plaintiff complained of the flooding of his mine by water leaking from the defendant’s reservoir. Though not personally negligent in the reservoir’s defective construction, the defendant was found liable to compensate for the
harm. In the famous words of Justice Blackburn in the appealed judgment:
[T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does not do so, is primâ facie
answerable for all the damage which is the natural consequence of
its escape.14
The reasons why this principle of strict liability came to be explicitly
endorsed by the common law are hard to discern through the mists of
time, but one plausible hypothesis is that the decision was influenced by
specific political debates of the period. As Brian Simpson pointed out in a
11
Williams v Holland (1833), 10 Bing 112, 131 ER 848 (CP). It was not, however, until
1875 that the Court of Exchequer unequivocally ruled that wilful or negligent conduct
was an element of liability for highway accident claims brought in Trespass: Holmes v
Mather (1875), LR 10 Ex 261.
12
MJ Prichard, “Trespass, Case and the Rule in Williams v. Holland” [1964] Cambridge
LJ 234.
13
Rylands v Fletcher (1868), LR 3 HL 330. See also Oliphant, supra note 2, from which
the analysis in the text draws intermittently.
14
Rylands v Fletcher (1866), LR 1 Ex 265 at 279 [Rylands].
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classic historical analysis,15 at the time Rylands v. Fletcher came to the
courts, there was widespread public concern about the risks inherent in
industrial activities in general and reservoir construction in particular.
Shortly before, there had been two major reservoir disasters in England.16
In 1852, a badly designed and ill-maintained dam at Holmfirth in Yorkshire collapsed catastrophically, releasing an enormous volume of water
that swept down the valley, killing seventy-eight people and rendering
homeless or destitute thousands more. In 1864, another catastrophic dam
breach led to the inundation of the city of Sheffield to a depth of almost
three meters with water flowing from a reservoir belonging to the Sheffield Waterworks Company. At least 238 people died.17
Considerable sympathy for the victims of such disasters, generally resulting in the organization of public charitable appeals for their benefit,
was coupled with a feeling that entrepreneurs should pay their way—
even if they were providing a public service.18 In response to the Holmfirth
catastrophe, Parliament had been persuaded to give statutory authority
for new reservoir construction only on condition that the undertaker accept a statutory responsibility to compensate the victims in the event of a
breach. Such terms came to be known as “Holmfirth clauses”, after the
village where the disaster had occurred.19 Subsequently there were legislative proposals to consolidate the law governing reservoirs built under
private Acts so as to ensure the inclusion of a compensation provision.
The proposal was dropped in 1867—after the Exchequer Chamber’s decision in Rylands v. Fletcher.20 The Rylands reservoir did not require statutory authorization as it was constructed on private land, but the decision
in the case can be seen as affirming that the common law should offer the
same protection for private rights as would have been available under the
statutory Holmfirth clauses.
15
See AW Brian Simpson, Leading Cases in the Common Law (Oxford: Clarendon Press,
1995) ch 8 at 195ff (chapter 8, “Bursting Reservoirs and Victorian Tort Law: Rylands
and Horrocks v. Fletcher (1868)”, is a revised version of an earlier article: AWB Simpson, “Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v.
Fletcher” (1984) 13:2 J Legal Stud 209). For criticism, see Gary T Schwartz, “Rylands v
Fletcher, Negligence, and Strict Liability” in Peter Cane & Jane Stapleton, eds, The
Law of Obligations: Essays in Celebration of John Fleming (Oxford: Clarendon Press,
1998) 209 at 236–37.
16
Simpson, supra note 15 at 199–208.
17
Ibid at 204–205.
18
Ibid at 202–08.
19
Ibid at 206.
20
Ibid at 205–06.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
825
The English courts showed no initial reluctance to apply Rylands v.
Fletcher. 21 However, the leading legal scholar at the turn of the nineteenth and twentieth centuries, Sir Frederick Pollock, 22 was strongly
committed to the idea that negligence provided the unifying principle in
English tort law, and so was predisposed against strict liability. Nevertheless, he refrained from open criticism of the case for some considerable
time, before eventually admitting to “not much liking” it.23 Later still, he
went so far as to say that he regretted the decision.24
In the United States, there was no similar reticence. The case was
immediately subjected to strong criticism by courts and scholars,25 though
it gained a measure of acceptance from Oliver Wendell Holmes—even if
his opinions on the case are not always possible to discern with precision.26
Perhaps the most convincing contemporary advocate of the application
of strict liability to hazardous activities was Baron Bramwell, who advanced a prototype theory of enterprise liability. In a well-known dictum,
he began by rejecting as a misapprehension the idea that the public benefit flowing from an activity should act as a defence to liability:
[I]n the first place, that law to my mind is a bad one which, for the
public benefit, inflicts loss on an individual without compensation.
But further, with great respect, I think this consideration misapplied
... The public consists of all the individuals of it, and a thing is only
for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all. So that if all the loss and all
the gain were borne and received by one individual, he on the whole
would be a gainer. But whenever this is the case,—whenever a thing
is for the public benefit, properly understood,—the loss to the individuals of the public who lose will bear compensation out of the
gains of those who gain.27
21
See the authorities listed in Oliphant, supra note 2 at 99, nn 126–32.
22
See especially Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law (London: Stevens & Sons, 1887)
and later editions of the same work. For an evaluation, see Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004).
23
Frederick Pollock, “The Dog and the Potman: Or ‘Go it, Bob.’” (1909) 25 Law Q Rev 317
at 321.
24
Frederick Pollock, “A Plea for Historical Interpretation” (1923) 39 Law Q Rev 163 (“those of us here
who regret that decision” at 167).
25
Oliphant, supra note 2 at 99.
26
Ibid at 100–01.
27
Bamford v Turnley (1862), 3 B & S 66 at 84–85, 122 ER 27 (KB) [Bamford]. See also
Powell v Fall (1880), 5 QBD 597 at 601 (CA) [Powell].
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There are foreshadowings here of the cost internalization that underpins
much modern economic analysis of law.28 But that is perhaps not surprising: this was, after all, the golden age of classical economics, and Bramwell was an enthusiastic supporter of the economic theories of Adam
Smith.29
C. Modern Transport: The Railways and the Motor Car
1. Setting the Scene
With the development of mechanically propelled forms of transport—
especially steam locomotives and the motor car—the question arose of
whether the principle of strict liability recognized in Rylands v. Fletcher
should be applied to accidents involving these novel forms of conveyance.
If so, it would have constituted a departure from the approach to road accidents established in the running-down cases. In fact, even the author of
the famous rule in Rylands v. Fletcher thought strict liability could not be
applied to ordinary traffic accidents because road users voluntarily assumed the risk of non-negligent injury:
Traffic on the highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to
some inevitable risk; and that being so, those who go on the highway, or have their property adjacent to it, may well be held to do so
subject to their taking upon themselves the risk of injury from that
inevitable danger ... In neither case, therefore, can they recover
without proof of want of care or skill occasioning the accident.30
It remained to be seen, however, whether the involvement of a steam locomotive or motor car warranted a departure from the established faultbased approach on grounds of the greater risks attached to these new
forms of transportation.
28
See e.g. Richard A Epstein, “For a Bramwell Revival” (1994) 38:3 Am J Legal Hist 246
(“here is the standard test of economic efficiency accurately stated ... a half century before it made its way into standard economic theory” at 277).
29
See Epstein, supra note 29 at 285; David Abraham, “Liberty and Property: Lord Bramwell and the Political Economy of Liberal Jurisprudence Individualism, Freedom, and
Utility” (1994) 38:3 Am J Legal Hist 288 at 289; Anita Ramasastry, “The Parameters,
Progressions, and Paradoxes of Baron Bramwell” (1994) 38:3 Am J Legal Hist 322 at
345.
30
Rylands, supra note 14 at 286–87.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
827
2. The Railways
The advent of railways31 produced what has been described as England’s first wave of personal injury litigation: “Mass transportation [gave]
rise to mass litigation.”32 Another commentator remarked that “the railroad locomotive ... generated, on its own steam (so to speak), more tort
law than any other [machine] in the nineteenth century.”33 Between 1872
and 1875, some 1,300 people were killed on the railways every year, and
more than 4,000 people were injured. Over half the casualties were railway employees.34 However, both the formal principles of accident law and
the prevailing legal and social culture were opposed to claims by injured
workers against their employers.35 In the law reports, the main evidence
of the terrible toll of death and injury is therefore to be found in claims
brought in respect of injuries to passengers. And these were numerous:
“No actions have been more frequent of late years,” said one judge at the
time, “than those against railway companies in respect of injuries sustained by passengers.”36
In such cases, liability turned on the correct construction of the contract of carriage. In Readhead v. Midland Railway Co., it was decided—
just the year after the House of Lords passed judgment in the Rylands litigation—that this entailed an obligation of reasonable care rather than a
strict warranty.37 A central strand of the analysis was the injustice of implying into the contract of carriage an obligation that would be impossible
to perform—namely the obligation to ensure absolutely that there was
nothing likely to imperil the passenger’s safety.38 The negligence-based
approach fell in line with the approach already established in respect of
coach passengers,39 though a requirement of negligence went against the
longstanding strict liability customarily imposed on common carriers of
31
See generally Lobban, supra note 6 at 958–69.
32
RW Kostal, Law and English Railway Capitalism, 1825–1875 (Oxford: Clarendon
Press, 1994) at 290, 255.
33
Lawrence M Friedmann, A History of American Law, 3d ed (New York: Simon & Schuster, 2005) at 223. He was speaking of American law, but the observation might equally
be applied to English law.
34
Roderick Bagshaw, “The development of traffic liability in England and Wales” in Wolfgang Ernst, ed, The Development of Traffic Liability (Cambridge: Cambridge University
Press, 2010) 12 at 13.
35
See Part ID, below.
36
Readhead v Midland Railway Co (1869), LR 4 QB 379 at 384, Montague Smith J.
37
Ibid.
38
Ibid at 384–85.
39
Aston, supra note 10.
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goods.40 It has been suggested that plaintiff’s counsel in Readhead may
have hoped that the court would be emboldened to reconsider the applicable liability standard by the then recent decision in the Rylands case.41
They did not, however, expressly rely upon that ruling in their own
claim—presumably because it was an action on the contract, not in tort—
and there is no hint in the judgments that the rule in Rylands v. Fletcher
weighed in the plaintiff’s favour.
Another set of cases involved actions by owners of land next to railway
tracks whose crops or land were set alight and destroyed by sparks from a
train. Here the liability, if it arose, had to be tortious rather than contractual, and this created some scope for application of the rule in Rylands v.
Fletcher. Even before the Law Lords had affirmed his judgment, Justice
Blackburn had expressly applied the principle in an action over a burneddown haystack.42 However, this was a rare case in which the defendant’s
operation of a steam locomotive was not—and did not have to be—
authorized by Parliament.43 An “exception” to this “general rule of common law”44 was made where the operation of steam locomotives was under
statutory authorization; here, a negligence standard was applied. 45 As
statutory authorization was in fact usually required, the “exception” soon
became the general rule. Consequently, Parliament intervened to impose
an obligation on the railway companies to compensate for damage to agricultural land or crops caused by sparks or cinders emitted by their engines, albeit subject to a financial ceiling (initially £100),46 but this argua-
40
Forward v Pittard (1785), 1 TR 27, 99 ER 953, where Lord Mansfield explained that “a
carrier is in the nature of an insurer” (at 33). The distinction between goods and passengers was justified by Justice Blackburn in the following terms: “The carrier has not
the control of the human beings whom he carries to the same extent as he has the control of goods, and therefore it would be unjust to impose on him the same responsibility
for their safe conveyance” (Readhead v Midland Railway Co (1867), LR 2 QB 412 at 433
[Readhead (1867)]).
41
Kostal, supra note 32 at 302–303, n 313. Before its ultimate resolution in the Exchequer
Chamber, the claim in Readhead had gone before a Court of Queens’ Bench that included Justice Blackburn just a year after his great judgment in Rylands v Fletcher (Readhead (1867), supra note 40). Justice Blackburn, dissenting, would have opted for strict
liability in the newer case too.
42
Jones v Festiniog Railway Co (1868), LR 3 QB 733 [Jones].
43
See Jonathan Morgan, “Technological Change and the Development of Liability for
Fault in England and Wales” in Miquel Martín-Casals, ed, The Development of Liability
in Relation to Technological Change (Cambridge: Cambridge University Press, 2010) 40
at 45.
44
Jones, supra note 42 at 736, Blackburn J.
45
Ibid, citing Vaughan v Taff Vale Railway Co (1860), 5 H & N 679, 157 ER 1351. See also
Hammersmith and City Railway Co v Brand (1869), LR 4 HL 171.
46
Railway Fires Act, 1905 (UK), 5 Edw VII, c 11, s 1. See Morgan, supra note 43 at 48–51.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
829
bly served only to cement the growing conviction of judges and scholars
that strict liability was exceptional, and generally to be left to Parliament
rather than developed at common law.
3. The Motor Car
The development of the internal combustion engine paved the way for
the introduction of the motor car in the late nineteenth century.47 Statutory speed limits kept in check the increasing velocities of which these and
other mechanically powered vehicles (e.g., steam traction engines) were
capable. In 1861, a 4 m.p.h. limit was imposed, and vehicles had to be preceded by a pedestrian carrying a red flag by way of warning. However, the
speed limit was increased to 14 m.p.h. in 1896 and to 20 m.p.h. in 1903,
while the red-flag requirement was abandoned.48
Road accident and casualty statistics were first collected on a national
level in 1926, in which year there were 4,886 recorded deaths in some
124,000 accidents.49 The casualty toll continued to rise through the twentieth century, reaching an annual peak of close to 8,000 fatalities in the
mid-1960s as the number of vehicles increased.50 It hardly needs to be
stated, however, that the perils of motorized road transport were wellknown long before the statistical data were available.
The first judicial decision on the new menace seems to date from 1861,
in a case of injury to a coachman thrown off his carriage when his horses
were frightened by the noise and appearance of the defendant’s industrial
traction engine.51 There was no evidence that the engine could have been
constructed or operated differently so as to avoid the danger, but Chief
Justice Erle told the jury that it was enough that the defendant knew of
the risk, for he had “clearly no right to make a profit at the expense of the
47
See generally Bagshaw, supra note 34 at 35ff; Bell & Ibbetson, supra note 3 at 111 ff;
Lobban, supra note 6 at 973–76; The Honourable JC McRuer, “The Motor Car and the
Law” (1966) 4:1 Osgoode Hall LJ 54. See also Bagwell & Lyth, supra note 5 at 87 (recording that a four-wheeled gasoline-powered carriage was driven through the streets
of Stuttgart, Germany, in 1886).
48
Lobban, supra note 6 at 973–75.
49
Department for Transport, “Reported Road Casualties Great Britain: 2011” (London:
Department for Transport, September 2012) at 196 online: GOV.UK <www.gov.uk/
government/uploads/system/uploads/attachment_data/file/9280/rrcgb2011-complete.
pdf>.
50
Ibid.
51
Watkins v Reddin (1861), 2 F & F 629, 175 ER 1216 [Watkins]. See JR Spencer, “MotorCars and the Rule in Rylands v. Fletcher: a Chapter of Accidents in the History of Law
and Motoring” (1983) 42:1 Cambridge LJ 65 at 69.
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security of the public.”52 That strict liability might apply where injury was
caused by a traction engine was confirmed in Powell v. Fall in 1880,53
where Lord Bramwell succinctly expressed the economic justification for
strict liability:
It is just and reasonable that if a person uses a dangerous machine,
he should pay for the damage which it occasions; if the reward which
he gains for the use of the machine will not pay for the damage, it is
mischievous to the public and ought to be suppressed, for the loss
ought not to be borne by the community or the injured person. If the
use of the machine is profitable, the owner ought to pay compensation for the damage.54
The liability was considered to be an application of Rylands v. Fletcher, and it was initially thought that the same rule would apply to motor
cars,55 but a Court of Appeal decision of 1908 rejected that analysis and affirmed a negligence-based approach, thus displaying what one commentator, not without an element of sarcasm, has termed “that manly disregard
for vulgar logic which makes the common law so much superior to other
systems.”56 The decision in question was in the case of Wing v. London
General Omnibus Company,57 described as in some ways “the most significant event” in English tort law in the twentieth century,58 though today it
is little remembered.
The plaintiff, an artificial flower maker, was injured while travelling
as a passenger in the defendant’s motor omnibus. The road at the relevant time was greasy because of recent rainfall, and the omnibus—
proceeding at about 5 m.p.h.—skidded on the greasy surface as its driver
sought to avoid other traffic and collided with an electric light standard.
The claimant injured her foot as she tried to get out. She pleaded her case
on two alternative bases: first, that the servants to whom the defendant
had given charge of the omnibus had driven it negligently; second, that
the omnibus itself was a dangerous machine and that, by placing it on the
highway, the defendants had created a nuisance. The trial disclosed no evidence of negligent driving, but the judge put to the jury the question
52
Watkins, supra note 51 at 1218.
53
Powell, supra note 27 at 597 (sparks from engine set haystack on fire). In Powell, Mellor
J expressly applied the rule in Rylands (ibid at 599). The defendant conceded prima facie liability at common law on appeal (ibid at 600–601).
54
Ibid at 601. See also, along similar lines, Lord Bramwell’s dictum from Bamford, supra
note 27.
55
Spencer, supra note 51 at 71.
56
Ibid at 70.
57
(1909), 2 KB 652 (CA) [Wing].
58
Spencer, supra note 51 at 79.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
831
whether the defendants were to be held liable for creating a nuisance by
allowing the omnibus to run in slippery conditions, in the knowledge of
their tendency to skid. The jury found for the claimant, but the judge
ruled that this was unsupported by the evidence and entered judgment
for the defendants.
The Court of Appeal was unanimously of the view that the strict liability recognized in Rylands v. Fletcher did not apply, and that negligence
had to be proved if the plaintiff was to succeed. As a majority of the court
considered the evidence of negligence to be insufficient, it dismissed the
plaintiff’s appeal. The court accepted that liability under Rylands v.
Fletcher was not limited to situations where the defendant created a danger on his own land but might also arise where he made “undue and improper use” of the highway.59 Yet there was no evidence that the defendants’ omnibus or motor omnibuses in general were so unmanageable or
dangerous as to merit that description. Admittedly, motor omnibuses had
a tendency to skid in slippery conditions, but “[a]ll vehicles have their defects” and those of self-propelled vehicles were offset by there being no
horses that could be frightened or fall, and their more effective braking
capacity. 60 Ultimately, however, the relative advantages and disadvantages of self-propelled and horse-drawn vehicles were neither here nor
there, as it was not for the court to weigh them in the balance or to determine which type of vehicle was the safest.61
A later attempt to introduce strict liability came via the distinct tort of
breach of statutory duty. In a case that came before the Court of Appeal in
1923, a truck was involved in an accident on the highway when one of its
axles broke and a wheel came off, damaging the plaintiff’s vehicle.62 It was
subsequently discovered that the axle had been in a dangerously defective
condition, though the owners were not at fault, having recently sent the
truck to a competent firm of mechanics to be overhauled and repaired.
The plaintiff argued that the truck’s failure to comply with the road safety
regulations was a sufficient basis for liability, but the court disagreed. The
duty imposed by the regulations was not a duty enforceable by individuals
who were injured, but a public duty enforced exclusively by way of the
statutory penalty. Parliament could not be taken to have intended to impose on vehicle owners an absolute obligation to ensure their vehicles’
roadworthiness in all circumstances on pain of liability in damages, even
in the absence of negligence.
59
Wing, supra note 57 at 665, Fletcher Moulton LJ.
60
Ibid at 666–67.
61
Ibid at 667.
62
See Phillips v Britannia Hygienic Laundry Co Ltd (1923), 2 KB 832 (CA) [Phillips].
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From this time on, negligence has been the standard to be applied
generally in road traffic cases, subject to only rare exceptions.63 The effect
has been to deprive large numbers of blameless non-motorists of compensation in running-down cases simply because the driver could not be
shown to be at fault. This regime has also added enormously to the cost of
litigation and settlement even where the claim was successful, and sets
English law at odds with the prevailing approach in most other European
jurisdictions.64 English law has stubbornly retained the negligence standard even in the face of official proposals for the introduction of strict liability or no-fault compensation to address the capriciousness with which the
fault principle operates in this area.65
D. The Industrial Workplace
Friedrich Engels’ famous account of the English industrial poor in
1844 highlighted the “multitudes of accidents” suffered in the workplace
that left their numerous victims maimed: “[T]his one has lost an arm or a
part of one, that one a foot, the third half a leg; it is like living in the
midst of an army just returned from a campaign.”66 The most common injury, he found, was the squeezing off of a joint of the finger; the most dangerous part of the machinery was the strapping conveying power from the
shaft to the individual machines, which could easily catch up a worker
and throw him against the ceiling and the floor with enough force to
break every bone in his body.67 Another particular risk was the explosion
of steam-powered boilers, which caused over 1,000 deaths between 1865
and 1882.68
Notwithstanding this awful injury toll, it was only surprisingly late—
in fact, in the 1830s—that injured workers first brought actions for damages against their employers. The first recorded English case was Priest-
63
See e.g. Monk v Warbey, [1935] 1 KB 75 (owner’s failure to insure).
64
Spencer, supra note 51 at 80–82.
65
See generally Peter Bartrip, “No-Fault Compensation on the Roads in Twentieth Century Britain” (2010) 69:2 Cambridge LJ 263.
66
Friedrich Engels, The Condition of the Working Class in England: From Personal Observation and Authentic Sources (London: Lawrence & Wishart, 1892) at 253. This Part
draws intermittently from Lunney & Oliphant, supra note 1 at 533–37 and Ken Oliphant, “Landmarks of No-Fault in the Common Law” in William H van Boom and Michael Faure, eds, Shifts in Compensation Between Private and Public Systems (Vienna:
Springer, 2007) 43 at 46–51 [Oliphant, “Landmarks”]. See also Lawrence M Friedman
& Jack Ladinsky, “Social Change and the Law of Industrial Accidents” (1967) 67:1 Colum L Rev 50; Lobban, supra note 6 at 1001–32.
67
Engels, supra note 66 at 253–54.
68
Morgan, supra note 43 at 51.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
833
ley v. Fowler in 1837,69 and there the claim was rejected. An early example of a successful claim is provided by an unreported case in 1840, where
a young mill worker’s arm was caught in unguarded machinery, crippling
her for life. With the financial support of a wealthy philanthropist, she recovered £100 in compensation from her employer, plus £500 in costs, the
defendants having conceded that they were liable for the accident.70
Various reasons for the comparatively late development of the law of
employers’ liability may be advanced. Simpson has noted that “before
suits against employers ... came into vogue, there were other mechanisms
for dealing with such accidents. In particular there was the law of master
and servant, and the poor law.”71 He persuasively links the rise of the tort
action against the employer to the decline in these alternative mechanisms for the support of the injured employee. First, the Industrial Revolution resulted not only in an unprecedented toll of accidental workplace
injury, but also in a change in the typical employment relationship. Previously, menial servants constituted a major part of the workforce, and the
law of master and servant represented a significant mechanism for dealing with accidents at work because the master had an obligation to provide board, lodging, and remuneration until the end of the term of employment even in the event of the servant’s disability.72 In the new industrial world, however, menial servants were replaced by “labourers” hired
for the task, the day or the month, with the result that “the protection afforded to the sick and injured amongst the working population was being
reduced by changing employment practices.”73 The first tort actions may
therefore be seen as, “in a sense, a move to fill a gap in a protection which
had formerly existed.”74
Second, there was the role played by the poor law, the forerunner of
today’s social security system. Simpson notes:
In the early nineteenth century and before, it was the poor law
which was the principal legal provision for the victims of serious accidents at work, not the law of tort. Given the cost of litigation, and
the poverty of the working population, tort law was largely irrelevant.75
69
3 M & W 1, 150 ER 1030 [Priestley].
70
Simpson, supra note 15 at 128 (in chapter 5, “A Case of First Impression: Priestly v
Fowler (1837)”).
71
Ibid at 113.
72
Ibid.
73
Ibid at 114.
74
Ibid at 117.
75
Ibid.
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Under the poor law, every parish had the obligation of providing relief
to the poor (including the “poor by casualty”) settled within its boundaries.
The relief could take a number of different forms: payment of medical expenses, provision of board and lodgings in a workhouse, or “outdoor” relief
to disabled people in their homes (e.g. payment of a weekly pension). In
1834, major reforms of the poor law were effected by a Poor Law Amendment Act 1834 which abolished outdoor relief, stipulating that relief was
to be provided only in the workhouse.76 Simpson suggests that this reform, which made the receipt of poor law assistance dependent upon acceptance of the disagreeable conditions of the workhouse, may also have
had something to do with the growing recourse to tort thereafter.77
However, claims by injured workers ran into an obdurate judiciary
that contrived to insulate employers from the costs of workplace accidents
through the application of an “unholy trinity” of defences:78 contributory
negligence (which was then a complete defence),79 volenti non fit injuria
(voluntary acceptance of risk), 80 and common employment. There was
widespread resentment of the last of these in particular. Essentially, the
common employment rule provided that an employer could not be held vicariously liable for tortious injury caused by one employee to another, as
every employee is deemed to accept the risk of negligence by a fellow
servant.81 Though the rationale was couched in terms of the worker’s implied consent, it seems that the decisive factor was judicial concern at the
potential reach of such a liability if it was admitted: “If the master be lia-
76
Ibid at 117–25.
77
Ibid at 123.
78
The phrase appears to have been William Prosser’s: see Richard V Campbell, Book Review of Handbook of the Law of Torts by William Prosser, (1941) 26:1 Minn L Rev 137
at 138. For further detail on employers avoiding the cost of workplace accidents, see
PWJ Bartrip & SB Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833–1897 (Oxford: Clarendon Press, 1983).
79
Apportionment was not introduced until the Law Reform (Contributory Negligence) Act,
1945 (UK), 8 & 9 Geo VI, c 28.
80
In 1891, the House of Lords mitigated the harshness of the volenti defence by accepting
a distinction between an employee’s awareness of the risk inherent in dangerous working conditions, and voluntary acceptance of such a risk: Smith v Baker & Sons, [1891]
UKHL 2, [1891] AC 325 HL (Eng).
81
The defence is conventionally traced back to Priestley, supra note 69, but it was not until Hutchinson v York, Newcastle and Berwick Railway Co (1850), 5 Exch Rep 343 that
it was stated clearly and authoritatively. The House of Lords accepted the principle in
Bartonshill Coal Co v Reid (1858), 3 Macqueen 266 (Scot) [Bartonshill]. The defence
was ultimately abolished by the Law Reform (Personal Injuries) Act, 1948 (UK), 11 & 12
Geo VI, c 41.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
835
ble to the servant in this action, the principle of that liability will be found
to carry us to an alarming extent.”82
In addition to these barriers to litigation erected as a matter of formal
law, numerous practical and cultural obstacles also limited the number of
claims brought by injured employees. These included the worker’s economic dependence on the employer and the fear of dismissal or other retribution if a legal claim was initiated.83 It has also been noted that “judges
... shared the common perception that most industrial accidents were
caused by the negligence of workmen. In judicial eyes, it was the workers,
rather than the employers, who needed a deterrent to give them an incentive to create a safe workplace.”84
In the mid-nineteenth century, the miners’ unions, lacking the representation in Parliament necessary for the pursuit of statutory reform,
challenged the common employment rule in the courts, but without success.85 Subsequently, a significant extension of the right to vote in 1867,
and the election of the first trade unionists to Parliament in 1874, increased the prospects of reform through the legislative process, and during the 1870s a number of parliamentary bills were introduced to limit or
abolish the common law defences. None was implemented but, following a
general election in which employers’ liability had become a significant issue, an Employers’ Liability Act was passed in 1880.86 This “represented a
minor adjustment to, rather than a revolution in, liability law.”87 It provided for the limitation of the common employment rule in specified circumstances, but not its complete abolition—for which the union movement continued to campaign.88
82
Priestley, supra note 69 at 1032, Abinger CB. As to the consequentialist reasoning employed, see David Ibbetson, “The Tort of Negligence in England” in Nils Jansen, ed, The
Making of Legal Doctrine (Cambridge: Cambridge University Press, 2010) 46 at 56–57.
83
See Lawrence M Friedman, “Civil Wrongs: Personal Injury Law in the Late 19th Century” [1987] Am B Found Res J 351; Morgan, supra note 43 at 51–57.
84
Lobban, supra note 6 at 1009.
85
Bartonshill, supra note 81 (confirming the defence’s application in English and Scots
law); Wilson v Merry & Cunningham (1868), LR 1 Sc & Div 326 (Scot) (declining to recognize a “vice-principal” exception to the common employment rule).
86
PWJ Bartrip, Workmen’s Compensation in Twentieth Century Britain: Law, History
and Social Policy (Aldershot: Gower, 1987) at 8 [Bartrip, Workmen’s Compensation];
Peter Bartrip, “The impact of institutions and professions on compensation for occupational injury in England” in Paul Mitchell, ed, The Impact of Institutions and Professions on Legal Development (Cambridge: Cambridge University Press, 2012) 36 at 42–
48.
87
Bartrip, Workmen’s Compensation, supra note 86 at 8.
88
Ibid.
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The ultimate solution was to take the law—and British social policy—
in a new direction. In the general election in 1895, workers’ compensation
was again a significant issue. The Conservative Party emerged victorious,
and shortly afterward put forward a Workmen’s Compensation Bill with
the objectives of saving injured workers from destitution, improving industrial safety by making employers pay for accidents, soothing turbulent
industrial relations by the reduction of employers’ liability litigation, and
relieving ratepayers of their financial responsibility (via the poor law) for
workplace injuries. 89 The Workmen’s Compensation Act was passed in
1897 and came into effect the following year.90 It provided for the payment
of compensation at 50 per cent of pre-accident earnings (up to a ceiling of
£1 per week) for “personal injury by accident arising out of and in the
course of employment.” 91 The worker’s serious and wilful misconduct
could act as a bar to the claim. Liability was to fall on the employer regardless of fault, but there was no compulsion to insure against it.92 The
right to sue in tort was not affected. Though the original Act was limited
to particular places of employment—railways, factories, mines, quarries,
engineering works and building sites—its scope was extended to other occupations in 1906, and to certain prescribed diseases as well as accidents.93
The reform constituted a compromise acceptable to the various interest groups involved.94 It addressed the compensatory defects of the existing private law regime while maintaining certain accident prevention objectives. At the same time, it protected employers from the unlimited and
unpredictable financial burden that would result if reform were pursued
through the common law. In the longer term, it paved the way for the introduction of social security,95 and in 1946 it was incorporated within the
overall system of national insurance established in that year, becoming
the Industrial Injuries Scheme.96 Concurrently, the link with pre-accident
earnings was loosened, and compensation was paid instead according to
the degree of the applicant’s disablement. The right to sue for damages in
89
Ibid at 10.
90
See Oliphant, “Landmarks”, supra note 66 at 49.
91
Workmen’s Compensation Act, 1897 (UK), 60 & 61 Vict, c 37, s 1(1).
92
Bartrip, Workmen’s Compensation, supra note 86 at 10–12.
93
Ibid at 47–54.
94
Ibid at 12.
95
Sir William Beveridge, the architect of the British welfare state, observed that workers’
compensation was the “pioneer system of social security” (Sir William Beveridge, Social
Insurance and Allied Services (London: Macmillan, 1942) at 41).
96
National Insurance (Industrial Injuries) Act, 1946 (UK), 9 & 10 Geo VI, c 62.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
837
tort law was retained—and indeed strengthened—in 1948 by the overdue
abolition of the common employment defence.
E. Assessing the Impact of Technological Innovation on Tort Law
According to the influential but highly controversial thesis advanced
by Morton J. Horwitz,97 tort law in England and the United States was
transformed in the nineteenth century in order to provide a subsidy to the
industrial concerns that had sprung up in the aftermath of the Industrial
Revolution.98 Horwitz claimed that the courts of the time abandoned the
erstwhile general principle of strict liability as expressed by the Latin
maxim sic utere tuo ut alienum non laedas, and adopted instead the faultbased standard of negligence so as to reduce entrepreneurial liability.99
That thesis is not without its difficulties. Horwitz’s apparent ascription of conscious agency to the judiciary fails to deal with the very wide
range of different attitudes evident in the decisions of different judges and
ignores the likely hostility to industrial expansion of the many judges who
were members of the landed gentry. Further, in many areas of tort law,
the principles applied had been recognized by the judges even prior to the
Industrial Revolution and were not new adoptions intended to protect
business interests and promote economic development. 100 Lastly, Horwitz’s depiction of a straightforward change from strict liability to negligence liability is a serious distortion of what actually occurred. Far from
replacing a generalized strict liability, “fault liability emerged out of a
world-view dominated largely by no-liability thinking.”101
A less ambitious claim may, however, plausibly be made about tort
law’s development in response to the risks created by technological innovation during the Industrial Revolution. It was not just the case that accidents became more frequent, but that they more often involved parties
with no prior relationship to each other— strangers, whose only interaction was in the accident in which one or other was injured. This forced the
courts to move beyond a conception of negligence liability as peculiar to
97
Morton J Horwitz, The Transformation of American Law, 1780–1860 (Cambridge,
Mass: Harvard University Press, 1977).
98
For more detail, see Lunney & Oliphant, supra note 1 at 13–15.
99
See also Charles O Gregory, “Trespass to Negligence to Absolute Liability” (1951) 37:3
Va L Rev 359 (“a desire to make risk-creating enterprise less hazardous to investors
and entrepreneurs;” “[j]udicial subsidies ... to youthful enterprise” at 368).
100
See Robert J Kaczorowski, “The Common-Law Background of Nineteenth-Century Tort
Law” (1990) 51:5 Ohio St LJ 1127.
101
See Robert L Rabin, “The Historical Development of the Fault Principle: A Reinterpretation” (1981) 15:4 Ga L Rev 925 at 928.
838
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certain pre-existing relationships and to adopt a generalized theory of liability: “[T]he modern negligence principle in tort law seems to have been
an intellectual response to the increased number of accidents involving
persons who had no preexisting relationship with one another.”102 The
scope of liability for negligence expanded as the courts recognized duties
of care in new types of cases, until the culminating moment of Lord Atkin’s enunciation of his “neighbour principle” in the “snail in the bottle”
case, Donoghue v. Stevenson.103
However, the seemingly unstoppable development of negligence into a
generalized liability was a cause of alarm to at least some members of the
judiciary, who urged caution and sought ways to limit the new liabilities
to which entrepreneurs were exposed. In the nineteenth century, this
backlash was most apparent in relation to accidents in the workplace, in
which context the courts developed a set of very effective defences to safeguard the interests of employers (the “unholy trinity” mentioned above).
We see in the relevant cases an explicit reliance on consequentialist reasoning to justify restrictions on the scope of liability that might otherwise
become an undue burden on entrepreneurs—and consequently on society.
This has been a repeated refrain in English tort law ever since.
II. Technologies for Controlling Risk
Tort law’s development has been affected not only by the risks created
by technical innovation, but also by its interrelationship with other legal
technologies that were introduced to control or mitigate those risks—
especially insurance, regulation, and social welfare. On one level, these
have raised practical problems concerning how the different legal mechanisms ought to be coordinated. At a deeper level, their presence poses
fundamental questions about tort law’s proper function in modern society.
A. Insurance
Though marine insurance is ancient, and even insurance against
property damage caused by fire dates to the seventeenth century, accident
insurance did not emerge until the “friendly society” movement that be-
102
G Edward White, Tort Law in America: An Intellectual History, Expanded Edition
(New York: Oxford University Press, 2003) at 16. Previously, this theory was especially
associated with Sir Percy Winfield: see e.g. Percy H Winfield, “The History of Negligence in the Law of Torts” (1926) 42:2 Law Q Rev 184. See also Lobban, supra note 6 at
888–94.
103
[1932] AC 562 HL (Scot), [1932] ALL ER Rep 1.
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
839
gan in the late eighteenth century.104 The friendly societies sought to allow artisans to make provision by way of a small weekly payment against
sickness and old age.105 With the advent of the railways, a new form of accident indemnity insurance emerged,106 and by the 1850s railway passengers were able to buy single-trip insurance to cover against suffering injury. The take-up, however, was very low: only one passenger out of every
183 purchased the protection.107
It was liability insurance—necessarily parasitic on tort—that had the
larger impact on tort’s development. It was created toward the end of the
nineteenth century, initially as a mechanism for protecting employers
against damages claims by their employees.108 However, it was not at all
free from controversy: until “well into the twentieth century there were
doubts about the legality of insuring against the consequence of one’s own
wrongdoing.” 109 But ultimately, it was realised that liability insurance
served the interests of the victim, and Parliament passed legislation to
require the commonest targets of personal injury litigation—car owners
(from 1930) and employers (from 1969)—to take out compulsory insurance
against their potential liabilities.110
Aside from the immediate practical problems to which the spread of
insurance gave rise,111 more fundamental changes were to be observed in
the tort system. The personal quality of tort litigation dissipated as claims
were increasingly defended by a faceless insurer rather than the individ-
104
See WS Holdsworth, “The Early History of the Contract of Insurance” (1917) 17:2 Colum L Rev 85. See also JL Longnaker, “History of Insurance Law” (1962) 30:1 University
of Kansas City Law Review 31; HJ Hastings, The History and Development of Personal
Accident and Sickness Insurance (London: Post Magazine, 1922) at 1–2. For further
reading on the impact of insurance on tort, see generally Richard Lewis, “Insurance and
the Tort System” (2005) 25:1 LS 85. For an argument that the influence of insurance
on tort law has been overstated and actually rather limited, see Jane Stapleton, “Tort,
Insurance and Ideology” (1995) 58:6 Mod L Rev 820.
105
Hastings, supra note 104 at 1–2.
106
Hastings, supra note 104 at 2.
107
Bagshaw, supra note 34 at 14, n 10.
108
See White, supra note 102 at 146–50.
109
David Ibbetson, “The Tort of Negligence in the Common Law in the Nineteenth and
Twentieth Centuries” in Eltjo JH Schrage, ed, Negligence: The Comparative Legal History of the Law of Torts (Berlin: Duncker & Humblot, 2001) 229 at 258.
110
See Road Traffic Act, 1930 (UK), 20 & 21 Geo V, c 43, s 35 (now Road Traffic Act 1988
(UK), c 52, s 143); Employers’ Liability (Compulsory Insurance) Act 1969 (UK), c 57.
111
E.g. should the value of an indemnity under a personal accident policy be subtracted
from the damages the plaintiff was entitled to recover from the defendant? Answer: no,
because it was a bargained-for benefit (Bradburn v Great Western Railway Co (1874),
LR 10 Ex 1).
840
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ual responsible for the accident as a matter of law. And, more and more
frequently, insurers brought claims too—exercising their right of subrogation under first-party insurance taken out by the victim. Rather than litigate in the courts, insurers preferred to resolve their mutual liabilities informally, even to the extent of agreeing to forego their strict legal entitlements in the interests of administrative economy.112 In such cases, tort
law was transformed into an administrative process in which losses were
shifted between institutional actors. The expectations of accident victims
changed too, as it became apparent that losses could be spread widely and
relatively painlessly rather than left to fall on the injured person. By the
middle of the twentieth century, scholars were explicitly identifying tort
law’s function as the transfer of losses away from the victims of accidents
and the distribution or spreading of those losses throughout society by
means of liability insurance.113
This change of attitude was less frequently adverted to in judicial dicta; the predominant judicial attitude has always been that the insurance
position of the parties should have no influence on the adjudication of individual cases, or even be disclosed lest it should influence the court in deciding questions of liability or damages. 114 However, a few iconoclastic
judges have spoken with greater candour about the changed nature of the
judicial task consequent on the spread of insurance. A well-known dictum
of Lord Denning may be cited by way of example:
[A] person injured by a motor car should not be left to bear the loss
on his own, but should be compensated out of the insurance fund.
The fund is better able to bear it than he can. But the injured person
is only able to recover if the driver is liable in law. So the judges see
to it that he is liable, unless he can prove care and skill of a high
standard.115
This frank admission that a judge might manipulate the formal legal
rules to ensure compensation for the victim out of the insurance fund
should, however, be regarded as exceptional.
112
See Richard Lewis, “Insurers’ Agreements not to Enforce Strict Legal Rights: Bargaining with Government and in the Shadow of the Law” (1985) 48:3 Mod L Rev 275.
113
See Fleming James Jr, “Accident Liability Reconsidered: The Impact of Liability Insurance” (1948) 57:4 Yale LJ 549; White, supra note 102 at 146–50.
114
Davie v New Merton Board Mills Ltd, [1959] AC 604 HL (Eng) at 626–27, Viscount Simonds; Launchbury v Morgans, [1973] AC 127 HL (Eng) at 136–37, Lord Wilberforce;
Hunt v Severs, [1994] 2 AC 350 HL (Eng) at 363, Lord Bridge.
115
Nettleship v Weston, [1971] 2 QB 691 at 699–700 (CA). See also Morris v Ford Motor Co
Ltd, [1973] QB 792 at 798; Lamb v Camden London Borough Council, [1981] 1 QB 625,
Lord Denning MR (pointing to the claimant’s ability to protect himself by purchasing
first-party (loss) insurance as a reason for absolving the defendant from liability at 637–
38).
TORT LAW, RISK, AND TECHNOLOGICAL INNOVATION IN ENGLAND
841
B. Regulation
The Industrial Revolution also gave rise to a desire among various politically active groups for regulation to prevent accidents, and received a
sympathetic hearing from the vigorous social planners of the Victorian
era. The Factories Act of 1844 introduced minimum workplace safety
standards, reinforced with criminal sanctions.The reluctance of justices to
convict, however, frustrated the Act’s successful operation in practice.116
The Act made some provision for payments to the injured worker, but the
compensation clauses were discretionary and rarely invoked.117 In some
circumstances, compensation under the Act was contingent on the employer being successfully prosecuted, but this rarely occurred. Safety and
accident prevention remained at this time matters that were mostly subject only to specific statutory regulation, reinforced by inspection and
criminal sanctions. But by degrees, encouraged by social reformers such
as Edwin Chadwick, an enthusiastic proponent of Jeremy Bentham’s Utilitarianism, the idea emerged that tort law could contribute to industrial
safety. In fact, Chadwick had first suggested using tortious liability and
financial incentive to promote this objective in 1833. 118 Regulation followed in other contexts too, including railways,119 road traffic (involving
the prescription of speed limits and use of the infamous red flags),120 and
environmental pollution.121
For judges, the immediately pressing question was how the common
law of tort should be adapted to accommodate the statutory standards. In
particular, should tort law provide a remedy in damages where the statute itself makes no provision for compensation in the event of a breach of
duty (and even where the statute provides for an alternative sanction)? In
a famous passage in Comyn’s Digest, there appears the bold and unqualified pronouncement that “in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the
same statute for the thing enacted for his advantage, or for the recom-
116
See Oliphant, “Landmarks”, supra note 66 at 47–48. It is worth noting that justices
were frequently fellow industrialists and may well have applied the same practices as
the prosecution impugned.
117
Bartrip & Burman, supra note 78 at 55–63.
118
Ibid at 16–17.
119
Bagshaw, supra note 34 at 34–35.
120
See Part I-C(3), above.
121
See Ben Pontin, “Tort Law and Victorian Government Growth: The Historiographical
Significance of Tort in the Shadow of Chemical Pollution and Factory Safety Regulation” (1998) 18:4 Oxford J Legal Stud 661.
842
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pence of a wrong done to him contrary to the said law.”122 In 1854, then
Chief Justice Lord Campbell went further, ruling that there was a right to
sue for “breach of a public duty” notwithstanding the existence of a criminal penalty for the wrong in question.123 But the courts quickly resiled
from this position, no doubt as a result of fears that the bounds of civil liability would otherwise expand far beyond the common law negligence liabilities of the time, as well as out of a concern not to allow the common
law’s fault principle to be sidestepped by adoption of the strict (or, at least,
stricter) standards laid down by statute.124 The one context in which actions for breach of statutory duty received general acceptance—employers’
liability125—is the exception that proves the rule, because the common law
defences had already rendered the action in negligence largely redundant.
Consequently, allowing the claim on the statute served only to redress an
existing—and notorious—deficiency of the common law liability for negligence.
At a more fundamental level, the rise of regulation began to cast
doubts on tort law’s utility as a mechanism for preventing accidents. For
many, tort law’s fundamental flaw was, and remains, that it is almost exclusively backward-looking and does not address risks as such (i.e., before
they have eventuated).126 Indeed, the risk of negligent injury is generally
not considered enough for the award of an injunction:127 tort steps in only
after the accident has occurred and the injury sustained. It should also be
noted that courts are not monitoring agencies, so the task of ensuring
compliance falls to the victim.128 The lack of specification of what precisely
must be done to comply with the duty of reasonable care could be thought
a further disadvantage. However, supporters of “responsive regulation”,
for whom it is important that subjects of regulation are left free to decide
themselves how best to attain the desired standard of conduct or outcome,
might view this last-mentioned factor as a positive advantage.129 And they
would find allies among proponents of the economic analysis of tort law,
whose basic tenet is that tort damages provide the appropriate financial
122
Sir John Comyns, Digest of the Laws of England, vol 1, 5th ed by Anthony Hammond
(New York: Collins & Hannay, 1824) at 453 .
123
Couch v Steel (1854), 3 El & Bl 402 at 414, 118 ER 1198.
124
See e.g. Phillips, supra note 62.
125
See especially Groves v Wimborne, [1898] 2 QB 402 (CA).
126
See Peter Cane, “Tort Law as Regulation” (2002) 31:4 C L World Rev 305 at 316.
127
See e.g. Miller v Jackson, [1977] 1 QB 966 at 980 (CA), Lord Denning MR.
128
See Cane, supra note 126 at 316.
129
Ibid at 314–315.
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incentive to produce an efficient level of accident prevention.130 Even those
who doubt such a claim is susceptible of proof131 are generally prepared to
accept that tort law has some beneficial effect in the deterrence of accidents.132
C. Social Welfare
By the end of the nineteenth century, the prevailing political mood was
beginning to change. An intellectual shift occurred that has been characterized as one of the transformative factors of English tort law in the
twentieth century:
The acute individualism which had characterised Victorian England
began to give way to a more communitarian approach: no longer was
it obvious that an individual who caused harm to another while pursuing his own economic self-interest should be liable only if it could
be shown that he had not taken reasonable care.133
The new philosophy was embedded in new institutions that sought to
mitigate the inevitable risks of industrialized society in a more coordinated fashion than could be achieved through the patchwork of support
mechanisms that contributed to this task in the nineteenth century. The
poor law and the master’s legal obligations to menial servants have already been mentioned,134 as have the disaster funds established through
public charitable appeals.135 These were supplemented by other forms of
private beneficence, as well as by mutual aid through such organisations
as the friendly societies, cooperatives, and trade unions. The intellectual
shift was clearly signalled by the introduction of workers’ compensation in
1897.136 This may be regarded as the first step on the road to the welfare
state created in the years immediately after the Second World War.137
From that point on, the principal burden of providing compensation for
the victims of accident, illness, or other misfortune was to fall upon taxpayers, not charity or self-help, nor even tortfeasors.
130
See especially Richard A Posner, “A Theory of Negligence” (1972) 1:1 J Legal Stud 29.
131
See the evidence collected in Don Dewees, David Duff & Michael Trebilcock, Exploring
the Domain of Accident Law: Taking the Facts Seriously (New York: Oxford University
Press, 1996).
132
See e.g. Gary T Schwartz, “Reality in the Economic Analysis of Tort Law: Does Tort
Law Really Deter?” (1994) 42:2 UCLA L Rev 377.
133
Ibbetson, supra note 109 at 259.
134
See Part I-D, above.
135
See text accompanying note 18.
136
See text accompanying notes 90–91.
137
Beveridge, supra note 95 at 41.
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Here the practical matter calling most urgently for resolution—
whether and to what extent the receipt of social welfare benefits impacted
upon the damages recoverable in tort—itself raised fundamental questions about tort law’s function in modern society. In practical terms, could
the victim accumulate welfare benefits and damages, or should the value
of such benefits be deducted from the damages? Should the defendant be
relieved of tortious liability to the extent that the victim received welfare
benefits, or was the state and its agencies to have the power to pursue the
defendant for their value? From the perspective of fundamental policy, is
accidental injury first and foremost a social responsibility, to be addressed
by the state through the provision of welfare benefits, with tort law stepping in to provide damages only for losses not compensated by the welfare
scheme? Or is it primarily an individual responsibility falling upon tortfeasors, who should reimburse the state for its expenditure on those
whom the tortfeasors injure?138
In the years immediately after the establishment of the welfare state,
English law adopted an unsatisfactory compromise approach, deducting
half the value of specified welfare benefits from the damages recoverable
by the victim, but without any provision for reimbursement by the defendant to the state; it was only in 1989 that the whole system was reformed and a general principle of reimbursement of social security benefits introduced.139 The reimbursement of public healthcare expenditure on
accident victims is treated separately, and initially applied only in road
traffic accident cases. It was extended to all personal injury cases in 2007.
However, only hospital charges and not primary care costs are reimbursed, so a measure of State subsidy for tortfeasance remains.140
Conclusion
English law has still to develop a convincing and coherent vision of
tort law’s true function in modern society. This task necessarily requires
an assessment of tort law’s proper place relative to other institutions—
notably insurance, regulation, and social welfare—that have developed in
response to the risks created by technological innovation, especially in the
period since the Industrial Revolution. This paper has sought to give an
account of how tort law’s own development was shaped by the technological and consequent social changes, and subsequently by its interaction
with the new legal technologies introduced to control or mitigate the risks.
138
See generally Richard Lewis, “Deducting Collateral Benefits from Damages: Principle
and Policy” (1998) 18:1 LS 15.
139
See Lunney & Oliphant, supra note 1 at 895–99.
140
Ibid at 887–89.
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However, the somewhat downbeat conclusion is that English law’s overall
response to accidental injury is excessively marked by ad hoc responses to
historical circumstances, and that sustained intellectual engagement is
still required to provide a consistent and principled basis for further legislative reform.