Date: Wed, 3 May 2006 10:14:04 +0100

From: Robert Stevens

Subject: Childs v. Desormeaux

In deciding whether there should be a tort duty, I think that the usual duty considerations should apply. Are social hosts parties who might reasonably be expected to change their behavior to reduce accidents? And, on the other hand, are we concerned that a duty might yield perverse socially undesirable responses? Are the hosts who are found to have irresponsibly poured likely to have insurance to help pay for the harm they should have avoided? Are victims otherwise likely to be uncompensated if there is no social host liability (more a concern in the US, I suppose)? Is the judicial system likely to be able to tell in individual cases whether the host acted irresponsibly or not? Is there such a strong value in the society that only drinkers should be fingered as the wrongdoers that it would be viewed as inappropriate to trump this value even if many third party victim lives could be saved?

I am not sure that I agree that any of these considerations ought to be relevant to the question of whether tort liability ought to be imposed. I don't know how a court has the political or technical competence to assess them. Indeed, if they are the relevant considerations, the inevitable conclusion would be that tort law makes no sense and ought to be abolished (eg S Sugarman, “Doing Away With Tort Law” (1985) Cal L Rev 555.)

Why do I have a right that you do not kill me (with a correlative duty on you not to do so)? My view is that we should not do unto others what we would not want done unto ourselves. It is just wrong to kill people and there is little more to be said. Of course our right not to be killed is not absolute. If your actions caused me to die but you took all reasonable care, I have no claim. The law could not impose duties on all of us to refrain from any conduct at all which exposed others to the risk of harm. We cannot all be under duties not to get out of bed in the morning. The law must draw a line between (everyone's) interest in not being killed and (everyone's) interest in liberty of action.

If it could be shown that the existence and enforcement of a right against others not to be killed had no impact whatsoever on human behaviour, would that be a good argument in favour of its abolition? I don't think so. It is just wrong to kill people, it is not a wrong because this causes fewer deaths. This doesn't mean we should pay any price for the recognition of this right. If the courts took up 60% of GDP I'd be appalled. But I don't think tort is 'about' deterring conduct or compensating people with broken legs, and trying to shape the rules as if it was is a mistake.

Say we lived in a world without alcohol. If it was invented, what would our attitude be towards people who invited people to their home, offered them the stuff and exercised no control over how much they drank, knowing that they would get into a car to drive home posing a serious risk to others? What if it wasn't alcohol but a glue-sniffing party?

best

Robert Stevens
Barrister
University of Oxford

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