Abstract
This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure (beginning with Fairchild v Glenhaven Funeral Services and considered most recently in The ‘Trigger’ Litigation). These cases have revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning.
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A version of this paper was presented as the Inaugural Public Lecture of the Private Law Discussion Group at Trinity College Dublin, funded by the generosity of the Trinity College’s Visiting Professorships and Fellowships Benefaction Fund. I thank all those who attended the lecture, and I am very grateful to Dr Niamh Connelly, Dr Maksymillian Del Mar, Sarah Fulham-McQuillan, Professor Simon Lee, Dr Margaret Martin, Dr Eoin O’Dell, Dr Desmond Ryan and Professor William Twining for helpful comments. Any errors are my own.
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- 1.
[2011] UKSC 12.
- 2.
[2011] UKSC 23.
- 3.
[2011] UKSC 10.
- 4.
[2012] UKSC 14 (‘“Trigger” Litigation’ hereafter).
- 5.
Ss3 and 49, Common Law Procedure Act 1852. The title of s 49 refers to ‘Fictitious and needless averments [which are] not to be made’ (Baker 2002, pp. 90–92).
- 6.
- 7.
Chap. 10.
- 8.
Chap. 13.
- 9.
In 2009, Professor Stevens remarked that, in contrast to other areas of private law, the ‘modern law of torts is dominated by the House of Lords’ (Stevens 2009, p. 629). As will be seen, that trend has continued with the transition to the United Kingdom Supreme Court. Given the constitutional change, I shall refer collectively to Law Lords and Supreme Court Justices as ‘judges’, without meaning any disrespect, but then to Law Lords or Justices as appropriate in any given case. Throughout, ‘Supreme Court’ refers to the UK Supreme Court rather than any other.
- 10.
In his dissent in OBG v Allan [2007] UKHL 21; [2008] 1 AC 1, speaking in the context of the tort of conversion (see in footnote 2 above).
- 11.
Professor Stapleton has recently argued for a clear separation between the requirement for causation and the ‘principle of compensatory tort damages’: Stapleton 2013, pp. 54–56. There are of course debates in psychological and philosophical literature over the extent which causal and counterfactual reasoning correlate: see eg Spellman and Kincannon (2001); Moore (2003) and Paul (2009).
- 12.
R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19.
- 13.
In the cases, there is consideration of the scope of the enforceable right to compensation in respect of a breach of article 5 of the European Convention on Human Rights and Fundamental Freedoms (art 5(5)): see eg Kambadzi 2011, para 59 (Lord Hope); cf. Lord Brown, ibid, paras 94 and 112. However, since my focus is on the use of fictions at common law, and the majority’s view is that there is a right to recover damages in tort in such situations, we shall not consider this aspect here.
- 14.
There are various administrative law points of importance in the case, chiefly the proper approach to the exercise of the Secretary of State’s power of detention and the application of the Hardial Singh principles, (from R v Governor of Durham Prison, Ex p Hardial Singh [1974] 1 WLR 704). But for present purposes we shall proceed on the basis that the Home Secretary was found to have detained the claimants pursuant to an unlawful policy.
- 15.
The damages point embraces two questions—whether nominal or exemplary/vindicatory damages should be awarded.
- 16.
As is also apparent, for example, in Lord Kerr’s judgment: Lumba 2011, paras 239 and 240.
- 17.
Lord Hope preferred to focus on the policy rather than the Rules: Kambadzi 2011, para 16.
- 18.
Eg Lumba 2011, para 249 (Lord Kerr); para 357 (Lord Brown).
- 19.
Moore (2003, p. 1184).
- 20.
(1845) 115 ER 668.
- 21.
Kamm (2003, p. 1369).
- 22.
Cf Steel (2011, pp. 530–531).
- 23.
For further reflections on the availability of vindicatory damages, see Welch v Attorney General of Antigua and Barbuda [2013] UKPC 21, paras 18–23, and Barker (2013). The Supreme Court rejected an award of exemplary damages in Lumba.
- 24.
[2002] UKHL 22; [2003] 1 AC 32.
- 25.
- 26.
Dr Del Mar correctly locates the origin of the fiction in McGhee v National Coal Board [1973] 1 WLR 1. I shall begin rather with Fairchild because it gave more coherence to the exact operation of the fiction, and because it is the more recent starting point for the latest discussions.
- 27.
[2012] UKSC 14.
- 28.
[1969] 1 QB 428.
- 29.
And the scientific understanding of mesothelioma has evolved even during the course of the asbestos litigation: see paras 19–20 of Lord Phillips’ judgment in Sienkiewicz, 2011 and the Annex to it. See also Stapleton 2012, pp. 224–225.
- 30.
See Oliphant (2010).
- 31.
[2006] UKHL 20.
- 32.
- 33.
For more detail see Lee 2011, pp. 79–86.
- 34.
[2011] UKSC 10.
- 35.
- 36.
See generally Merkin and Steele (2013, chap. 12).
- 37.
[1973] 1 WLR 1492. The basis upon which the insurers had paid out on policies generally was not unanimous or consistent: Trigger’ Litigation, [37].
- 38.
This is an umbrella term, although Zurich Insurance was on the side of the victims/employers.
- 39.
- 40.
Lord Phillips of course dissented overall but was speaking here of what he recognised was a valid concession by counsel.
- 41.
Permission to appeal was granted in the case of International Energy Group v Zurich Insurance [2013] EWCA Civ 39 and argument was heard on 15–16 July 2014: http://www.supremecourt.uk/cases/case_2013_0057.html
- 42.
Language which Stern also uses: Stern, this volume, Chap. 8.
- 43.
Fairchild, [34].
- 44.
Lee (2008b).
- 45.
Although there may be a tendency towards a pro-claimant bias in these causal cases (Hamer 2014, pp. 162–163) there is no suggestion that we should abandon causation entirely, and, indeed, the Fairchild fiction can be viewed as evidence of a commitment to the demands of causation.
- 46.
The idea was also canvassed briefly in argument in the High Court of Australia in Wallace v Kam [2013] HCATrans 45 (the Fairchild principle has, however, not so far been adopted as a matter of common law in Australia: cf s 5D(2), Civil Liability Act 2002 (NSW)).
- 47.
- 48.
- 49.
Paterson 2014, p. 94.
- 50.
Swift J in Jones & Ors v The Secretary of State for Energy And Climate Change & Anor [2012] EWHC 2936 (QB), para 543: ‘It does not appear that there is any appetite in the appellate courts for extending the Fairchild exception to cases involving diseases other than mesothelioma.’ See McIvor 2013, p. 226.
- 51.
[2013] UKSC 9, para 157.
- 52.
Lord Rodger was endorsed on this point subsequently by Lord Hoffmann in Barker 2006, paras 18–24.
- 53.
See also Lord Steyn in Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878, 913.
- 54.
Lord Edmund-Davies once resolved that, as a judge, he would ‘be unrepentantly trying to fill the gaps. So confining myself, I shall regard the term “judge-made” law not as an accusation or a sneer, but merely as an epithet which can be accepted with a modest measure of mild self-satisfaction’ (Edmund-Davies 1977, p. 18). We might say the same of legal fictions.
References
Cases
Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572.
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.
Bird v Jones (1845) 115 ER 668.
Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] 1 WLR 1492.
Durham v BAI (Run Off) Ltd (Employers’ Liability Trigger Litigation) [2012] UKSC 14.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32.
International Energy Group v Zurich Insurance [2013] EWCA Civ 39.
Jones & Ors v The Secretary of State for Energy And Climate Change & Anor [2012] EWHC 2936 (QB).
McGhee v National Coal Board [1973] 1 WLR 1.
OBG v Allan [2007] UKHL 21; [2008] 1 AC 1.
R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23.
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Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10.
Wallace v Kam [2013] HCATrans 45.
Welch v The Attorney General of Antigua and Barbuda [2013] UKPC 21.
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Lee, J. (2015). Fictions in Tort. In: Del Mar, M., Twining, W. (eds) Legal Fictions in Theory and Practice. Law and Philosophy Library, vol 110. Springer, Cham. https://doi.org/10.1007/978-3-319-09232-4_12
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