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Tort Law for Cynics
Modern Law Review, Volume 77 (2014)
Back in 1949 Lord Justice Denning had an occasion to consider the rules imposing tort liability on the actions of people of unsound mind. He wrote there:
I am aware that these rules of law have been criticized by some jurists who would make…liability in tort depend on blameworthiness, but I venture to think that this criticism is somewhat out of date. Recent legislative and judicial developments show that the criterion of liability in tort is not so much culpability, but on whom should the risk fall.
In recent years this ‘out of date’ view has been making something of a comeback. A recent spate of writings has asked us to ‘rediscover’ negligence law which ‘has been forgotten’, to return it to its ‘traditional’ roots, to go back to views that ‘until about 40 years ago…had always’ been accepted and according to which ‘tort law is all about protecting people who had suffered a wrong, people whose rights had been violated’. In this essay I wish to challenge one aspect of this new-old view, namely the nature and role of duty of care in the tort of negligence.
In an essay published a few years ago Nicholas McBride vigorously defended what he called an ‘idealist’ view that affirms the existence of duties of care, against what he called the ‘cynical’ position that denies their existence. Not only do duties of care exist, McBride insisted that every one of us has ‘millions’ of them. Along similar lines, John Goldberg and Benjamin Zipursky have defended an ‘anti-reductionist’ view of tort law according to which there are special relations in the interactions of ‘manufacturer–consumer, business–business, business–customer, doctor–patient, lawyer–client,…landlord–tenant, host–guest’, and that ‘there is no reason to suppose that these diverse norms are really just expressions of a deeper reality’ such as individuals’ ‘capacities as autonomous, self-interested agents or citizens of a polity subject to regulation’. Pushing this idea to its logical conclusion Robert Stevens has argued that we should stop speaking not just of ‘tort law’ as though it reflected a unified ground for liability, but even of ‘the tort of negligence’.
McBride’s essay prompted a response from David Howarth. While agreeing with McBride that the cynic’s position is ‘clearly untenable’, he favoured the view which McBride dubbed ‘ultra- idealism’ and hastily dismissed as a view ‘no serious lawyer would nowadays endorse’. As Howarth defined it, this ultra-idealist view is ‘that there is only one duty of care—a duty not to harm others by faulty conduct’. The purpose of this essay is to say something in support of the view both McBride and Howarth rejected. Even though McBride’s labels could hardly have been more partisan (‘duty nominalism’ or ‘duty minimalism’ would have been more neutral alternatives), I have decided to stick to his terminology and make the case for the cynical approach to tort law, and especially negligence. That may not seem like a very promising endeavour; it is tempting to agree with Howarth that at least in the English context, the cynical view cannot be true because of the central place duty of care plays in negligence liability. At least since Donoghue v Stevenson, courts have on many occasions dismissed a negligence claim on the basis of a finding of no duty of care, and that seems difficult to reconcile with the cynical view.
Despite such an unpromising starting point, I will try to show that this fact (which I do not dispute) is not enough to dispose of duty cynicism. One aim of this essay is to present a clearer and fairer picture of this view, one that corresponds to views actually held by certain people. I hope to show that tort cynicism, or at least a version of it, is far more powerful a position than presented by its critics. To that end I begin by presenting what is at stake between idealism, ultra-idealism, and cynicism. I then turn in section II to evaluating arguments put forward by McBride and others against cynicism and argue that they are unconvincing and that some of them actually support the cynical view. In section III, I outline some of the positive reasons in favour of cynicism. I conclude in section IV by explaining the practical significance of the debate.
1 White v White,  P 39, 58–59. Denning held on to these views. See Spartan Steel v Martin & Co  1 QB 27, 37; Lamb v Camden London Borough Council  1 QB 625, 634, 636–637.
2 See A. Beever, Rediscovering the Law of Negligence (Oxford: Hart, 2007) 512.
3 N.J. McBride & R. Bagshaw, Tort Law (Harlow: Pearson Longman, 3rd ed, 2008) xiv (hereinafter McBride & Bagshaw (3rd ed)). The historical claim is unfounded. See notes 33, 92. Here and below I cite from the last two editions of this book, the last one being N.J. McBride & R. Bagshaw, Tort Law (Harlow: Pearson, 4th ed, 2012) (hereinafter McBride & Bagshaw (4th ed)). Since my discussion seeks to challenge a view rather than a particular book, and since, as far as I can tell, the authors have not changed their views on tort law, I believe this usage is justified. Another scholar espousing this view is R. Stevens, Torts and Rights (Oxford: Oxford University Press, 2007). In the US John Goldberg and Benjamin Zipursky have defended this view in many (joint and several) writings. See in particular J.C.P. Goldberg & B.C. Zipursky, ‘The Restatement (Third) and the Place of Duty in Negligence Law’ (2001) 54 Vand L Rev 657; J.C.P. Goldberg & B.C. Zipursky, ‘The Moral of MacPherson’ (1998) 146 U Pa L Rev 1733; J.C.P. Goldberg & B.C. Zipursky, ‘Torts as Wrongs’ (2010) 88 Tex L Rev 917.
4 N.J. McBride, ‘Duties of Care—Do They Really Exist?’ (2004) 24 OJLS 417; cf R. Stevens, ‘Torts’ in L. Blom- Cooper et al (eds), The Judicial House of Lords: 1876–2009 (Oxford: Oxford University Press, 2009) 629, 652 (‘The Law itself is compromised if a cynical or ‘realist’ view is allowed to take hold’).
5 McBride, n 4 above, 432.
6 J.C.P. Goldberg & B.C. Zipursky, ‘Accidents of the Great Society’ (2005) 64 Md L Rev 364, 389–390.
7 Stevens, n 3 above, 291–292, 301–303.
8 D. Howarth, ‘Many Duties of Care—Or a Duty of Care? Notes from the Underground’ (2006) 26 OJLS 449.
9 Ibid 450.
10 McBride, n 4 above, 437.
11 Howarth, n 8 above, 450.
12  AC 562.