|
Date: Tue, 8 Jul 2008 10:55:47 +1000 From: Neil Foster Subject: Law Commission on Liability of Public Bodies
Dear Rob and others This is a very interesting but, I agree, fundamentally odd paper. Since I am about to present a paper at the Obligations 2008 conference defending the continued usefulness of the tort of breach of statutory duty I thought I'd better have a look to see how the Law Commission had carefully reviewed the history and purposes of the tort to come to their reasoned view that it should be abolished .... No, you're right. They reach their view after a brief and misleading summary of the elements at 3.110ff, with no evidence of considering the lengthy history of or reasons for the existence of the tort (or any consideration of the two major monographs considering the tort in England, by Keith Stanton and others). They blithely talk of a "perception of uncertainty and unpredictability". In ch 4 when they are meant to be making their case from 4.72ff there are again vague generalisations about "uncertainty" and coin-tossing. They then tell us at 4.75 that the courts have been "restrictive" in their application of the law (outside the important area of industrial injury). So, one might suggest, since it is not causing major problems for defendants we should leave it alone for those rare but important cases where plaintiffs can make it out? No - they argue at 4.78 that since the tort is "close to obsolete" (!) we should just get rid of it! They back up their case by an odd assertion in this para that in 2006-2007 there were only "15 reported cases (in the High Court and above, for England and Wales) in which there was a successful claim for breach of statutory duty". I guess their geographical caveat explains why they can ignore the House of Lords' decision in Robb v Salamis (M & I) Limited [2006] UKHL 56 which offered important guidance on interpretation of health and safety obligations (it was an appeal from Scotland). But why only include "successful" claims? And of course the fact that cases are not making it to court in some areas may actually be a sign that parties are fairly clear on the parameters of the law and settling claims - which I suggest would be the case in the industrial injury area. I will need to do some more work to confirm or deny their figures (which in any case do not sound like a major argument for abolition!) But I must say I am treating them with suspicion when I see that they include in n 97 as one of their examples of a case involving breach of statutory duty, the decision in Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289. I have read that case now (alerted by noting it in another part of the Commission's paper) and it is clearly a claim in negligence, not breach of statutory duty. (One may agree or disagree with the analysis of how the statutory scheme there, similar to the one discussed in Australia in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, did or did not produce a duty of care in negligence - but a negligence claim it clearly was, not a BSD claim - see [4].) The real agenda of the Commission becomes clear (but the logic does not) in para 4.85 where we see that what they do not like is "strict liability", and they obviously see the problems for their preference for "serious fault" as a criterion for recovery if they don't dispose of the BSD tort. (I don't know enough about the philosophy to comment intelligently on their Appendix A, but I suspect that might also be true of the Commission! Can anyone else back up their assertion at A.7 that "corrective justice" as a theory "excludes certain rules which would be compatible with the theory itself, such as those establishing a principle of strict liability"? So corrective justice theorists don't believe in vicarious liability?) The Commission does what the Supreme Court of Canada did in Saskatchewan Wheat Pool by accompanying their recommendation for abolition of the tort by a qualification preserving its operation in the workplace health and safety area - see 4.79, 4.105. But in the end their summary of issues for discussion at 7.6 contains a blanket question about overall abolition. And as I have said elsewhere, if you concede that the tort is beneficial in some areas (and in the area where it is most in practical use), you need to offer compelling, not superficial, reasons why it should be "carved up" and removed in other areas. Indeed, it is interesting to ask how the Law Commission justifies, in a paper meant to be confined to the issue of liability of public bodies, a recommendation abolishing the tort across the board for all plaintiffs except those involved in industrial injuries. Maybe their preferred position is s 43 of the NSW CLA, which limits BSD claims against public bodies, and they think their "ambit" proposal to abolish the tort altogether can be reduced in the final report to s 43. One of the really disturbing things about the paper for someone who is in NSW, is to see how commonly the Commission refers to the Civil Liability Act 2002 as the paradigm of model legislation! Actually there is an interesting shift here. In the body of the paper they cite the CLA as an example of how things can be done (e.g. 4.70 n 85 on proportionate liability; 4.119 on "special statutory powers" as a way of limiting public body liability). But then they have a section near the end from 6.56 headed "A Cautionary Tale" (!) where they purport to review the background of the Ipp Report which led to the CLA and similar legislation, and cite Harold Luntz and others who have criticised the whole "tort review" process in Australia. Their "moral"? The Australian experience illustrates "the danger of sacrificing balance and principle when implementing law reform in a crisis". Like Rob I hardly know where to start to respond to this selective overview; one point would be to cite those studies which have demonstrated pretty clearly that the so-called insurance "crisis" in Australia was a furphy from the start - see Wright, "National Trends in Personal Injury Litigation: Before and After Ipp" (2006) 14 TLJ 233-267. But pots and black kettles are brought to mind in the Commission's view that in its proposals it is doing something different!
Regards Neil Foster
<<<< Previous Message ~ Index ~ Next Message >>>>>
|
»
»
»
»