Doing the Government’s Work

AuthorDavid Cowan
Publication Date01 Mar 1997
some commentators have recently noted, tort actions are difficult for defendants to
control and predict?
The judge’s comments suggest that some asbestos
companies were willing to bargain with their workforce – who are closely linked
in the judge’s remarks with the local community as a whole – over financial
rewards for dangerous work, in place of improving safety. We can illustrate
through this case, however, that negligence employs a foreseeability test which
extends further than that which was literally foreseen by the defendants, or by the
industry as a whole. This may be variously interpreted as an essentially non-
economic judgment as to responsibility, or (conversely) as an attempt to attribute a
‘true’ economic cost to activities such as those of the defendants. Whichever
interpretation is chosen, it appears that reasonable foreseeability as applied in the
law of tort does not entirely correspond with the projected profits and losses of
Doing the Government’s Work
David Cowan*
Recent pronouncements of the House of Lords in homelessness cases have tended
to reflect current government policy as opposed to the policy upon which the
relevant legislation was originally drafted.
RvLondon Borough of Brent ex parte
is one such case. A leading practitioner in the field has already questioned
the wisdom of bringing the case and, further, suggested that there was little point in
the aftermath of the case, in the government introducing a new Housing Bill to
amend the existing law.
If this had been the result, the House of Lords would have
collaborated in producing a dramatic and controversial limitation on the rights of
the homeless without a murmur in the House of Commons.
As it happened, the
insulation worker: ‘the man has a very poor expectation of life. And if he does succumb, the claim
will not be any more expensive and without his evidence the solicitors will be in greater difficulties.
In short, I do not think technically we have anything to lose by leaving the matter in abeyance’; see
‘Asbestos: the grim reaper’, The Economist, 4 November 1995, p 35.
69 See for example James T. O’Reilly, US Environmental Liability Risks (London: Graham & Trotman/
Martinus Nijhoff, 1995), Chapter 10. Private actions, including tort actions, are contrasted with
compliance action by government agencies in particular: ‘Industrial site investors should be
concerned about more formidable adversaries than just the US government agencies’ (p 101).
Although this status of private litigants as ‘more formidable’ adversaries is attributed by O’Reilly
partly to features of US litigation in particular, he also emphasises the interest of government agencies
in achieving stability, and ‘avoiding awkward precedents’, whilst ‘predictability is a virtue not always
observed in private action under environmental and general liability laws’.
*Department of Law, University of Bristol.
1 In addition to the case under discussion, see RvNorthavon DC ex parte Smith [1994] 3 All ER 313;
D. Cowan & J. Fionda (1995) 7 Child and Family Law Quarterly 66.
2 [1996] 1 AC 55.
3 The case immediately generated considerable adverse comment from Andrew Arden QC:
‘Homelessness: a Step Backwards’ (1995) August Legal Action 22; a response from the solicitor
and a barrister in the case: (1995) September Legal Action 22; and a riposte from Arden: (1995)
October Legal Action 28.
4 It is believed that the government’s initial Consultation Paper, Access to Local Authority and Housing
Association Tenancies (London: HMSO, 1994), drew over 10,000 comments, few of which were in
favour of its suggestions. For example, East Haslemere District Council in Surrey strongly dissented
from the proposals: ‘Homeless Strategy is Ill-Conceived’ The Haslemere Herald, 11 March 1994.
276 The Modern Law Review Limited 1997
The Modern Law Review [Vol. 60

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