Date: Thu, 3 Nov 2005 15:13:40

From: Jason Neyers

Subject: UK Compensation Bill Published

I don't Roberts that example because it raises issue of consent etc. Take the following example: I discover a cure for HIV/AIDS that involves releasing a rare form of radiation into the atmosphere. The radiation is very rare and is largely benign but unfortunately is deadly, 99 times out of 100, for 1 in a million people. Is it negligent to release the radiation? If social utility is the test, or a part of the test, then clearly it is not. In fact, one could say that not releasing the radiation was in fact negligent if social utility is taken into account.

Somehow, I do not think that the release of radiation is what justice between the parties requires or that is even condoned according to the dictates of the justice traditionally applied by the courts. (Whether or not politically we would authorize this is another matter). If an idea such as social utility cannot be taken to its logical end point, then it is not a principle that should be applied arbitrarily in cases where we find its application more tasteful.

The concept of the bill also raises very interesting and broader questions about the type of person who should be deciding questions of social utility and the matter that these persons should be selected for that task. If the function of a judge is to do politics then the judge should be decided by political means, they should have no claim that their special expertise entitles them to special processes of selection. This is a point that Peter Birks often made, and it is a point, with which I agree.

Cheers,

----- Original Message -----
From: Robert Stevens
Date: Thursday, November 3, 2005 9:48 am
Subject: Re: [Fwd: ODG: UK Compensation Bill Published]

Jason wrote:

"[In relation to] the remedial function of the judge, the social utility of the conduct should be strictly irrelevant."

So if I manufacture a cure for cancer with the side effect that it causes 1 in 10 people a migraine should I be treated in the same way as the manufacturer of bubble gum with the same side effect?

The mere fact that the (public) benefit of the defendant's conduct are greater than the costs to the claimant doesn't necessarily mean that there is no wrong. However, the utility of another's actions clearly has some bearing on the rights we have against them. Whether the social utility of someone's actions should be allowed to 'trump' our rights is another question.

Fortunately, it looks like Her Majesty's Government are not going to look at such difficult theoretical problems and are just going to leave it up to the judges.

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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