‘In this Day and Age’: Social Facts, Common Sense and Cognition in Tort Law Judging in the United Kingdom
| DOI | http://doi.org/10.1111/jols.12073 |
| Date | 01 June 2018 |
| Author | Kylie Burns |
| Published date | 01 June 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 2, JUNE 2018
ISSN: 0263-323X, pp. 226±53
`In this Day and Age': Social Facts, Common Sense and
Cognition in Tort Law Judging in the United Kingdom
Kylie Burns*
Tort law judging in the United Kingdom includes judicial `truth
claims' or `social facts' about the world, society, and institutional and
human behaviour. Although corrective justice and rights scholars
assert tort law is autonomous and internally referential, social facts
can be influential in tort decisions. While there is some evidence of
judicial use of empirical research, many social facts are based on
judicial notice, judicial common sense, and intuition. Social facts, often
based on judicial common sense, play a role in tort judging. However,
they can also be fertile ground for the introduction of cognitive bias
and judicial error. The role of social facts in tort judging is not
confined to `policy' reasoning but includes social framework, context,
and background. Emerging research on judicial cognition can help
explain the nature and impact of common-sense social facts. There is a
need to consider potential responses to judicial use of social facts and
judicial cognition.
Tort law judging in the United Kingdom has always rested upon judicial
`truth claims'
1
about the general nature of the world,
2
society, and
226
*Griffith Law School and Law Futures Centre, Griffith University, Nathan,
QLD, 4111, Australia
K.Burns@griffith.edu.au
I thank the anonymous referees and journal editors who provided such useful, thorough,
and thoughtful suggestions for the revision of this article. Their collegial efforts were
much appreciated.
1 Hunter, McGlynn, and Rackley suggest the making of `truth claims' (that is, the
assertion of truths about facts) is a key feature of judgment writing. These `truth
claims' are presented by judges as `actual truth, and not merely as truth-claims': see
R. Hunter et al., `Feminist Judgments: An Introduction' in Feminist Judgments:
From Theory to Practice, eds. R. Hunter et al. (2010) 15.
2Montgomery v. Lanarkshire Health Board [2015] UKSC 11; [2015] A.C 1430, para.
111 (Lady Hale) ± whence the title of this article.
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institutional and human behaviour.
3
Judicial statements about these matters
can be called `social facts'.
4
The role of social facts in tort law reasoning
should be unsurprising to socio-legal scholars, given it has long been
acknowledged that social change is enmeshed with the shape of law.
5
However, there are strong views expressed by corrective justice and rights
tort theory scholars,
6
that tort law, as a species of private law, must be viewed
as autonomous and internally referential and judges must resist reference to
external political policy concerns sourced from other disciplines. Despite this,
there is evidence in recent tort cases in the United Kingdom that judicial
appreciation of the changing nature of the complex world can, in some cases,
be critical to judicial decisions.
7
In other cases, judicial use of social facts
complements or feeds into the application of legal principle. The application
of tort principles may also require judicial application of understandings
about the new complex world, for example, assessments about issues such as
the nature of risk, reasonableness, and counterfactual causation inquiries.
While there is some evidence of judicial use of empirical material in tort
judgments,
8
many judicial social fact statements in tort cases in the United
Kingdom remain based on judicial common sense and intuition.
9
Common-sense intuitive assumptions by judges about social facts can be
efficient and rational; however, they can also be fertile ground for the
introduction of cognitive bias into tort judging. In 2015, Lord Neuberger
acknowledged the growing empirical evidence of the likely impact of
cognitive illusions and cognitive bias on judges as human decision makers.
10
227
3 For example, in Donoghue v. Stevenson [1932] A.C. 562, at 583, Lord Atkin
discusses consumer goods, the knowledge of manufacturers, and ordinary needs of
society. See, also, R. Hunter, `Analysing Judgments from a Feminist Perspective'
(2015) 15 Legal Information Management 8, at 9.
4 These are statements which are not directly and specifically in issue between the
parties (adjudicative facts) but, rather, are broader facts about society, the world and
institutional and human behaviour: K. Burns, `The Australian High Court and Social
Facts: A Content Analysis Study' (2012) 40 Federal Law Rev. 317, at 318; K.
Burns, `It's Not Just Policy: The Role of Social Facts in Judicial Reasoning in
Negligence Cases' (2013) 21 Torts Law J. 73, at 73±6, 77±9.
5 L. Friedman, `Coming of Age: Law and Society Enters an Exclusive Club' (2005)
Annual Rev. of Law and Social Science 1, at 6±7.
6 For example, E. Weinrib, The Idea of Private Law (2012, rev. edn.); R. Stevens,
Torts and Rights (2007); A. Beever, Rediscovering the Law of Negligence (2007);
A. Beever, A Theory of Tort Law (2016).
7 See Montgomery, op. cit., n. 2. In this article appellate tort cases are used as
examples, although judicial use of social facts in trial cases is also likely widespread.
8 A. Blackham, `Legitimacy and Empirical Evidence in the UK Courts' (2016) 25
Griffith Law Rev. 414, at 422±7.
9 id., pp. 419±20. In the Australian context, see Burns, op. cit., n. 4; K. Burns, `Judges,
``Common Sense'' and Judicial Cognition' (2017) 25 Griffith Law Rev. 319.
10 Lord Neuberger, `Judge not, that ye not be judged: judging judicial decision-
making' (F.A. Mann Lecture, 2015), at
150129.pdf> paras. 24±29.
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This article will explore common-sense intuitive judging about social facts in
tort cases in the United Kingdom, and the ramifications for tort law judging
of the emerging scholarship demonstrating the impact of cognitive illusions
and biases on judges. It will argue that social facts,
11
often based on judicial
common-sense assumptions, play a role in tort law judging. Judicial use of
`common sense' or intuition may be impacted by judicial cognition. Part I
explores the role that social facts play in tort law judging, and suggest that
role is not confined to traditional `policy' or consequentialist reasoning.
12
Part II argues that judicial use of common sense and intuition forms part of
the fibre of tort law judging. Part III briefly summarizes some aspects of the
emerging research on judicial cognition and discusses how cognitive bias
and cognitive illusions might explain and impact on common-sense social
fact assumptions in tort law. Finally, Part IV discusses potential responses to
judicial use of social facts and the impact of judicial cognition on tort law
judging.
I. SOCIAL FACTS AND TORT LAW
Traditional accounts of tort law judging might conceive of disputes as
strictly determined by the application of tort law principles to the adjudica-
tive facts about the parties and the nature of their relationship. Adjudicative
facts are those facts that are directly at issue between, and specific to, the
parties: the who, what, why, and where.
13
How fast was the car going at time
of collision? What was the nature of the warning given by the surgeon to the
patient prior to surgery? Many tort cases, particularly the vast majority
which settle prior to determination in court, may involve the relatively
straightforward application of tort law principles to adjudicative facts.
14
228
11 The term `fact' is contestable and there is a slippery distinction between `fact',
`opinion', and `law'. In this article, the term refers to `truth claims' by judges about
facts, which are presented as actual truth, whether or not there is an empirical basis:
see Hunter et al., op. cit., n. 1. There is an extensive literature, beyond the scope of
this article, on the epistemology of `fact' and distinctions between facts as truth
claims, facts as empirical reality, and facts as social construction: see F. Me'gret,
`Do Facts Exist, Can They Be Found, and Does it Matter?' in The Transformation of
Human Rights Fact-Finding, eds. P. Alston and S. Knuckley (2016); R. Allen and
M. Pardo, `The Myth of the Law-Fact Distinction' (2002) 97 Northwestern
University Law Rev. 1769.
12 For discussion of consequentialist reasoning by judges, see M. Del Mar, `The
Forwa rd-Lo oking R equir ement o f Forma l Justi ce: Nei l MacCo rmick o n
Consequential Reasoning' (2015) 6 Jurisprudence 429; N. MacCormick, Legal
Reasoning and Legal Theory (1995); N. MacCormick, Rhetoric and the Rule of Law
(2005).
13 See K. Culp Davis, `Judicial Notice' (1955) 55 Columbia Law Rev. 945, at 952.
14 This conception may rest on myths about claims resolution in the real world of tort
practice: see S. Hedley, `Making Sense of Negligence' (2016) 36 Legal Studies 491.
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However, there is a clear role for social facts in tort law judging particularly
in disputed, novel, and complex cases. This role extends beyond policy and
consequentialist reasoning.
1. Tort law theory and social facts
There has been considerable controversy in tort scholarship in recent years
about judicial use of social facts concerning policy matters. There has been
widespread acknowledgement that policy-based reasoning is an aspect of tort
judging, particularly in negligence cases.
15
Yet, the use of policy-based
reasoning by judges has come under sustained attack by corrective justice
and rights-based scholars including Weinrib,
16
Stevens,
17
and Beever.
18
The
meaning of policy in tort theory and tort reasoning is slippery and uncertain
and can have different meanings in different contexts.
19
Policy is distin-
guished from legal principle
20
and any concern that justifies an outcome
which is not based on law may be considered policy.
21
For example, Stevens
adopts Dworkin's distinction between arguments of public policy which
justify a political decision by advancing a collective communal goal, and
principle-based decisions which respect or secure individual or group
rights.
22
Robertson notes a distinction between interpersonal justice policy
arguments and welfare-goal-orientated policy arguments.
23
Judges may refer to social facts in support of policy arguments. Con-
sequentialist concerns such as impact of liability on other parties, broader
impact of liability on public funding, public and judicial administration, and
external behavioural impacts require judges to draw on some form of extra-
legal knowledge. This knowledge may be drawn from judicial experience,
229
15 J. Stapleton, `The Golden Thread at the Heart of Tort Law: Protection of the
Vulnerable' (2003) 24 Aust. Bar Rev. 135; J. Stapleton, `Duty of Care Factors: A
Selection from the Judicial Menus' in The Law of Obligations: Essays in
Celebration of John Fleming, eds. P. Cane and J. Stapleton (1998) 340; A.
Robertson, `Policy-based Reasoning in Duty of Care Cases' (2013) 33 Legal Studies
119; J. Plunkett, `Principle and Policy in Private Law Reasoning' (2016) Cambridge
Law Rev. 366; C. Witting, `Tort Law, Policy and the High Court of Australia'
(2007) 31 Melbourne University Law Rev. 569; J. Morgan, `Policy Reasoning in
Tort Law: The Courts, the Law Commission and the Critics' (2009) Law Q. Rev.
215.
16 Weinrib, op. cit., n. 6.
17 Stevens, op. cit., n. 6.
18 Beever, op. cit., n. 6.
19 Plunkett, op. cit., n. 15, p. 369; Witting, op. cit., n. 15, p. 572.
20 Beever, op. cit., n. 6, p. 3.
21 Plunkett, op. cit., n. 15, pp. 369±70. See Plunkett's critique of this definition at pp.
370±2, that policy-bas ed concerns may underlie or ove rlap principle-based
arguments.
22 Stevens, op. cit., n. 6, p. 308. Stevens notes the difference between `public policy'
and the `policy of the law'.
23 Robertson, op. cit., n. 15, pp. 120±2.
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judicial common sense or empirical research from other disciplines. How-
ever, as will be discussed further, judges in tort cases do not only refer to
social facts in support of consequence-based welfare policy arguments. An
interpersonal justice argument based on an accepted or shared social under-
standing of interpersonal justice or shared morality may itself draw upon
judicial assumptions of what shared social moral beliefs and standards are.
24
Judicial assumptions about matters such as proximity and foreseeability may
rely upon judicial assumptions about how human relationships function,
normal human behaviour, and normal human cognitive capacity.
Key critics of policy-based arguments in tort reasoning seem to base their
concerns predominantly around judicial reference to consequentialist com-
munity welfare matters. Arguments against judicial reference to these issues
include lack of judicial legitimacy; impermissible judicial politics; lack of
technical competence; and lack of sufficient evidence.
25
While there is some
validity to these concerns, they apply equally to `justice' policy concerns. In
any event, whether it is normatively desirable for judges to refer to policy
(and social facts more broadly) in tort reasoning,
26
clearly courts in the
United Kingdom and elsewhere in the common law world do so.
27
Prag-
matically, judges refer to policy in tort cases and accordingly they need to
access social facts.
28
`There are occasions upon which it is impossible for
courts to escape policy-based reasoning.'
29
Lord Neuberger has recently
(and perhaps controversially) suggested that `almost all aspects of the law of
torts are grounded on policy, and that any attempt to identify or distil
principles will normally be fraught with problems.'
30
Additionally, even critics of judicial use of consequentialist policy
reasoning in tort cases appear to accept that there remains a legitimate need
for judges to engage in social fact finding in tort cases. The construction of
rights or interpersonal justice in tort law judging is not entirely divorced or
disconnected from assumptions about the nature of society, the world, and
230
24 Plunkett, op. cit., n. 15, pp. 376±7; C. Witting, `The House that Dr Beever Built:
Corrective Justice, Principle and the Law of Negligence' (2008) 71 Modern Law
Rev. 621, at 625±6, 628±9.
25 Plunkett, id., p. 380. See, also, Stevens, op. cit., n. 6, ch. 14.
26 See Plunkett, id., p. 380; B. Shmueli, `Legal Pluralism in Tort Law Theory:
Balancing Instrumental Theories and Corrective Justice' (2015) 48 University of
Michigan J. of Law Reform 745; S. Hedley, `Looking Outward or Looking Inward?
Obligations Scholarship in the Early 21st Century' in The Goals of Private Law, eds.
A. Robertson and H.W. Tang (2009) 193.
27 See Stapleton, op. cit., n. 15; Robertson, op. cit., n. 15; Burns, op. cit, n. 4;
Blackham, op. cit., n. 8.
28 Robertson, id., p. 121 argues that judicial use of welfare-based policy considerations
tends to be predominantly confined to ultimate-level appellate courts.
29 Witting, op. cit., n. 24, p. 634.
30 Lord Neuberger, `Some Thoughts on Principles Governing the Law of Torts',
Singapore Conference on Protecting Business and Economic Interests, 19 August
2016, at , paras. 4±5.
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human behaviour.
31
Social facts and knowledge from other disciplines
remain relevant to informing both the contours and nature of the parties'
interpersonal relationship and the contemporary meaning of the legal
concept of corrective justice.
2. Categories of social facts in tort law judging
There are many concepts critical to tort law that require judicial assumptions
to be made about general human behaviour and the nature of the world and
society. What can a reasonable person reasonably foresee? When would it be
considered not fair, just or reasonabl e to impose liability? Are the
consequences of a breach so far removed from what could be reasonably
foreseen by a defendant, they should be considered too remote? Many of the
general factual assumptions necessary to interpret and apply these ostensibly
legal tests are neither adjudicative facts specific to the parties of a matter
32
nor are they direct facts about the nature of the parties' interpersonal
relationship with each other. Judicial application of some of these principles
might involve the consequence-based policy reasoning
33
discussed above.
However, judicial assumptions in relation to the nature of the world, society,
and human behaviour are not restricted to traditional policy issues in tort
law.
34
Judicial assumptions in tort law judging are also made about social-
framework facts and about general background or context facts.
Social framework facts are those which allow interpretation, application
or measurement of adjudicative facts
35
and place those adjudicative facts in
context.
36
To make any finding about whether a plaintiff or defendant acted
reasonably requires assumptions about how reasonable people generally act.
For example, in Montgomery v. Lanarkshire Health Board, Lord Kerr and
Lord Reed (with whom Lord Neuberger, Lord Clarke, Lord Wilson, and
Lord Hodge agreed) made social-framework statements in relation to the
likely reaction of pregnant women if informed of the risks of shoulder
dystocia. They noted that shoulder dystocia is an emergency:
requiring procedures which may be traumatic for the mother, and involving
significant risks to her health. No woman would, for example, be likely to face
the possibility of a fourth degree tear, a Zavanelli manoeuvre or a symphysio-
tomy with equanimity.
37
231
31 Stevens, op. cit., n. 6, pp. 315±16, 507; Weinrib, op. cit., n. 6, pp. 216±22; Beever,
op. cit., n. 6, pp. 48, 74, 507±8.
32 See discussion in Burns, op. cit. (2013), n. 4.
33 Policy-based reasoning may also be referred to as `legislative facts', see Davis, op.
cit., n. 13.
34 Burns, op. cit. (2013), n. 4, pp. 79±83.
35 L. Walker and J. Monahan, `Social Frameworks: A New Use of Social Science in
Law' (1987) 73 Virginia Law Rev. 559.
36
R. Hunter, `An Account of Feminist Judging' in Hunter et al. (eds.), op. cit., n. 1, p. 37.
37 Montgomery, op. cit., n. 2, para. 94.
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Lady Hale also commented on the likely attitude of `reasonable mothers' to
the relevant risks.
38
To determine whether a party should have foreseen a
particular risk to another or to themselves, requires an assumption of what
other reasonable people would have foreseen and how they would have acted
in response. For example, in Jackson v. Murray,
39
the Supreme Court con-
sidered the reasonableness of the actions of a 13-year-old girl who stepped out
in front of a fast-moving car on a country road on a dark winter afternoon after
alighting from a school bus, for the purposes of determining contributory
negligence and the relative blameworthiness of her actions for the purposes of
apportionment. Social-framework assumptions may also form a silent lens
through which visual phenomena, such as warning signs, are assessed.
40
Judicial reasoning in tort cases may also rely on background or context
social fact assumptions. For example, in a recent case concerning the tort of
deceit arising from a personal injury settlement, Lord Toulson (with whom
Lord Neuberger, Lady Hale, and Lord Reed agreed) referred to the history of
fraudulent personal injury claims and the their impact on insurance
premiums.
41
In the vicarious liability case of Cox v. Ministry of Justice,
42
Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Dyson, and Lord
Toulson agreed) discussed the nature of the modern workplace and the
relationship between employers and employees
43
and the importance of the
law maintaining protection for victims of workplace torts.
44
Change of
broader direction in tort law, for example, whether a particular legal prin-
ciple ought to be abandoned or altered, can rely on judicial background or
contextual assumptions about how the world, society or human behaviour
has changed. Judicial assumptions about these matters can result in critical
turning points in tort law.
45
Consider the above-mentioned medical liability case of Montgomery
46
decided by the Supreme Court in 2015. The case involved the failure of an
obstetrician to warn a pregnant diabetic woman of small stature of her risk of
shoulder dystocia,
47
and to advise her of the possibility of a caesarean
232
38 id., para. 113.
39 Jackson v. Murray [2015] UKSC 5; [2015] 2 All E.R. 805.
40 Burns, op. cit., n. 9. p. 326.
41 Hayward v. Zurich Insurance Company [2016] UKSC 48, para. 51.
42 Cox v. Ministry of Justice [2016] UKSC 10.
43 id., paras. 21, 29.
44 id., para. 29. See paras. 34±35 on the aims of penal policy in modern prisons and the
nature of prison work by prisoners.
45 For a discussion of the need for the law to change when there is a `change in moral,
societal, commercial or technological circumstances' and when this `justifies a
principle being abandoned, created, or varied', see Lord Neuberger `Sausages and
the Jud icia l Proce ss: The L imits o f Trans pare ncy' (2 014), a t s://
www.supremecourt.uk/docs/speech-140801.pdf>, paras 39±42.
46 Montgomery, op. cit., n. 2.
47 This is an obstetric emergency with a possible small risk of severe complications to
both mother and child.
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section. Her child was born with severe disabilities when the condition
occurred during a vaginal delivery and the child was deprived of oxygen,
causing severe brain injury. The judgments in the Supreme Court case placed
particular emph asis on changing soci al circumstances, i ncluding the
changing nature of the doctor±patient relationship and the delivery of
healthcare, the nature of the modern health consumer,
48
and contemporary
attitudes to women, pregnancy, and birth
49
to support an altered `duty on the
part of doctors to take reasonable care to ensure that a patient is aware of
material risks.'
50
Social and legal developments were said to `point away
from a model of the relationship between doctor and the patient based upon
medical paternalism' and point towards:
an approach to the law which, instead of treating patients as placing them-
selves in the hands of their doctors . . . treats them so far as possible as adults
which are capable of understanding medical treatment is uncertain of success
and may involve risks.
51
It is clear, as discussed in this section, that there is a role in tort judging
for social facts about the world, society, and human behaviour. While social
facts may be used in support of consequentialist policy arguments, they may
also be used as part of social framework and to provide background and
context in judgments. In some cases these facts may be determinative or
have significant influence on judicial decisions. The deeper question that
emerges is how do judges make these necessary general social fact assump-
tions, in the absence of direct or expert evidence from the parties?
II. COMMON SENSE, INTUITION, AND TORT LAW
At the heart of tort law lies common-sense judicial assumptions and `truth
claims' about the nature of human and social behaviour and the nature of the
world.
52
Early tort cases in the common law world included judicial
assumptions about the world, society, and the behaviour of human beings.
53
Even in contemporary cases, judicial social fact assumptions in tort cases
appear mostly to rely on judicial intuition or common sense rather than
empirical evidence.
233
48 Montgomery, op. cit., n. 2, paras. 75±79 (Lord Kerr and Lord Reed, with Lord
Neuberger, Lord Clarke, Lord Wilson, and Lord Hodge agreeing).
49 id., paras. 110±117 (Lady Hale).
50 id., para. 82.
51 id., para. 81.
52 See Burns, op. cit., n. 9.
53 Burns, op. cit. (2013), n. 4, pp. 77±9.
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1. Common sense and empirical research in United Kingdom tort cases
Social facts might be incorporated into judicial reasons via the doctrine of
judicial notice. This doctrine allows judicial reference to matters which are
notorious, `clearly established' or can be proved by readily available and
authoritative source.
54
The doctrine may extend to judicial common know-
ledge of matters possessed by people of `ordinary intelligence' such as
`common business practices', and `natural phenomena'.
55
While this may
allow judicial reference to a wide range of matters, judges cannot rely only
on personal knowledge and there are limits, given many social facts may be
disputed, controversial, not widely known or not in accord with available
empirical evidence.
56
There is little explicit judicial consideration or guid-
ance as to whether the doctrine of judicial notice governs judicial reference
to empirical research used as the basis for social facts.
57
There is some recent
evidence of judicial reference to empirical material in tort cases in United
Kingdom appellate courts which was not introduced at trial, but rather
emerged in appellate submissions, in intervener submissions or was self-
sourced by judges.
58
Nevertheless, it could not be said that judicial reference
to empirical material in United Kingdom tort cases has supplanted judicial
common-sense assumptions.
59
Rather, social facts appear commonly con-
sidered to be legitimate matters of judicial experience or intuition. There is
evidence of judicial caution and sometimes antipathy about the value of
empirical research as basis for social facts.
60
Lord Mance (dissenting)
recently commented in Willers v. Joyce,
61
a case about whether the tort of
malicious prosecution extends to civil proceedings, that empirical evidence
in relation to the threat of civil litigants inappropriately using threats of
malicious prosecution action was unnecessary to ground a policy argument.
He noted that:
234
54 Hunter, op. cit., n. 36, p. 39.
55 id.
56 District Court In Litomerice, Czech Replublic v. Kolman [2017] EWHC 302
(Admin) paras. 13±25; McTear v. Imperial Tobacco Ltd [2005] ScotCS CSOH 69
paras. 1.11±1.12.
57 Blackham, op. cit., n. 8, p. 435. Blackham argues (at pp. 415±16) that the approach
of United Kingdom Courts is `largely typified by ad-hoc, unprincipled, and
unpredictable engagement with empirical evidence.' See, also, Hunter, op. cit., n.
36, p. 39.
58 See, for example, Lady Hale's description of her own reference to such material,
citation by counsel, and judicial use of empirical material by other judges: Lady
Hale, `Should Judges be Socio-Legal Scholars', Socio-Legal Studies Association
Conference, 2013, at .
59 Blackham, op. cit., n. 8.
60 id.
61 Willers v. Joyce [2016] UKSC 43.
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the formation of legal policy does not normally depend on statistics, but rather
on judges' collective exper ience of litigation and litiga nts and, more
particularly here, their appreciation of the risks involved in litigation and
the risks of its misuse.
62
In a recent case concerning insurance fraud, Versloot Dredging,
63
Lord
Sumption (with Lord Clarke, Lord Hughes, and Lord Toulson) commented
on whether it was relevant that there was little empirical evidence that the
relevant common law rule effectively deterred fraud. They noted courts were
`rarely in a position to assess empirically the wider behavioural con-
sequences of legal rules' and that `formation of legal policy . . . depends
mainly on the vindication of collective moral values and on judicial instincts
about the motivation of rational beings.'
64
A number of members of the Supreme Court commented on the role of
judicial experience relative to empirical evidence in Michael v. The Chief
Constable of South Wales.
65
This case demonstrates the differing approaches
judges may take to issues such as the proper role of judicial instinct and
values, the value and persuasiveness of empirical evidence, and judicial
willingness to rely on speculation in preference to empirically-based facts. It
also illustrates the intractable difficulties in obtaining civil tortious remedies
against public authorities for omissions
66
and against police who could have
prevented deeply gendered harms such as sexual assault and domestic
violence.
67
The case concerned whether the police owed a duty of care in
relation to the death of Joanna Michael who had been killed by her former
partner. Police had been slow to respond to 999 calls from the woman who
was in immediate danger of harm. The Supreme Court, by majority,
ultimately determined that no duty of care was owed primarily on the basis
of the omissions principle ± that is, liability is not imposed for pure
omissions, including in the context of failure by public authorities to prevent
the actions of third party.
68
235
62 id., para. 134.
63 Versloot Dredging BV and another v. HDI Gerling Industrie Versicherung AG
[2016] UKSC 45. While this is not a tort case, it is valuable for its discussion of
policy in private law.
64 id., para. 10. See, also, the `background/context' factual assumptions at para. 10
concerning the nature and prevalence of insurance fraud, and `modern' insurance
conditions.
65 Michael v. The Chief Constable of South Wales [2015] UKSC 2; [2015] A.C 1732.
66 id., para. 115.
67 See discussion in J. Conaghan, `Investigating Rape: Human Rights and Police
Accountability' (2017) 37 Legal Studies 54.
68 Michael, op. cit., n. 65, paras. 97±137 (Lord Toulson, with Lord Neuberger, Lord
Mance, Lord Reed, and Lord Hodge). For a convincing critique of the application of
the omissions principle to reject liability in police cases, see S. Tofaris and S. Steel,
`Negligence Liability for Omissions and the Police' (2016) 75 Cambridge Law J.
128.
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Unlike other tort cases, significant empirical evidence about the magni-
tude and nature of domestic violence had been presented by the appellants
69
and three interveners.
70
Although the majority primarily relied on the
omissions principle as the basis for denial of duty,
71
there was reference to
the empirical evidence in the judgments. Most members of the Supreme
Court stressed the primary role of instinctual reactions by judges in deciding
what is `fair, just and reasonable'. Lord Kerr noted policy consideration
judgments are frequently if not usually `made without empirical evidence'
and `for the most part . . . will be instinctual reactions.'
72
He suggested that
similar value judgements are made in relation to proximity `based essentially
on what the court considers to be right for the particular circumstances of the
case at the time the appraisal is being made.'
73
The majority judgment of Lord Toulson (with Lord Neuberger, Lord
Mance, Lord Reed, and Lord Hodge) noted the very substantial empirical
material about the `deep-rooted p roblem of domestic vio lence', the
prevalence and weaknesses of police response,
74
and homicide statistics
showing around 100 women killed a year.
75
The appellants had submitted
this material should impact the development of the common law tort.
76
However, while recognizing the material was `shocking', Lord Toulson was
not persuaded the material should cause the court to develop a new category
of duty.
77
He argued, `the court has no way of judging the likely operational
consequences of changing the law of negligence' and in particular whether a
new principle would `improve the performance of the police in dealing' with
domestic violence.
78
Whether a new duty would make any difference was
said to be `speculative' and not in the public interest.
79
Lord Toulson stated
(without reference to empirical evidence) that the `only consequence of
236
69 The parents and children of Ms Michael.
70 Refuge, Liberty, and Cymorth i Ferched Cymru (Welsh Women's Aid).
71 Congahan, op. cit., n. 67, p. 57, fn. 16 notes the `interesting shift' in the case away
from `strong reliance on policy to ground the denial of liability in ``common law
principle''.'
72 Michael, op. cit., n. 65, para. 160.
73 id., para. 161. For discussion of the influence of values on judging, see R. Cahill-
O'Callaghan, `The Influence of Personal Values on Legal Judgments' (2013) 40 J.
of Law and Society 596.
74 Michael, id., para. 19. See, also, Conaghan, op. cit., n. 67.
75 Conaghan, id., citing HM Inspectorate of Constabulary (HMIC), Everyone's
Business: Improving the Police Response to Domestic Violence (2014), at
www.justiceinspectorates.gov.uk/hmic/wp-conte nt/uploads/2014/04/improving-the-
police-response-to-domestic-abuse.pdf>.
76 Michael, op. cit., n. 65, para. 20.
77 id., paras. 118±122. The cross-appeal by the police in relation to a refusal at trial and
original appeal to strike out a separate cause of action for damages for breach of the
Human Rights Act 1998 in relation to Article 2 of the European Convention of
Human Rights (right to life) failed.
78 id., para. 121.
79 id.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
which one can be certain is that the imposition of liability on the police to
compensate victims of violence . . . would have potentially significant finan-
cial complications.'
80
Compensation and costs would have to come from the
police budget with consequent reduction on other service, and/or from an
increased burden on the public.
81
Lord Kerr agreed with Lord Toulson that `it was difficult to predict with
confidence what the operational consequences would be' if police liability
were recognized.
82
However, he suggested that the lack of empirical
evidence in relation to possible consequences should not be a basis to refuse
liability where it would be found to exist `by all conventional norms'.
83
He
also noted two previous Law Commission Reports
84
which suggested the
lack of empirical evidence either way in relation to potential consequences
of police liability. The Law Commission's Administrative Redress, referring
to a study by Professor Sunkin and others, suggested `judicial review
litigation may ``act as modest driver to improvements in the quality of local
government services''.'
85
Lady Hale considered it was:
difficult indeed to see how recognising the possibility of such claims could
make the task of policing any more difficult than it already is. It might
conceivably, however, lead to some much-needed improvements in their
response to threats of serious domestic abuse.
86
While there is some use of empirical material in tort cases as the basis for
social facts, empirical material does not appear to play a significant role in
tort judging the United Kingdom. Judges appear to rely predominantly on
common sense, intuition, and judicial experience.
237
80 id., para. 122.
81 id.
82 id., para. 184.
83 id., paras. 184, 186. See, also, reference to Hill v. Hamilton-Wentworth Regional
Police Services Board [2007] 3 SCR 129, 2007 SCC 41; Arthur JS Hall & Co v.
Simons [2002] A .C. 615 where `unf ounded claims' a bout possible po licy
consequences of liability were dismissed as a basis to deny tortious liability. See
Conaghan, op. cit., n. 67, p. 74 in relation to the paucity of empirical evidence in
relation to effects on policing of liability and the `speculative' nature of judicial
suppositions in relation to the impact of liability on police functions.
84 Law Commission, Remedies against Public Bodies: A Scoping Report (2006); Law
Commission, Administrative Redress: Public Bodies and The Citizen (2010) (Law
Com No. 322).
85 Michael, op. cit., n. 65, para. 185. See, also, Cox, op. cit., n. 42, in relation to a
refusal of the Supreme Court to accept speculative claims of consequential impacts
in the absence of any evidence base.
86 Michael, id., para. 198. Lady Hale also referred to the HMIC report, op. cit, n. 75, in
relation to some of the attitudes that had led to police inadequacies.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
III. JUDICIAL COGNITION AND TORT LAW
In some (perhaps many) tort cases, judicial reference to social facts based on
common sense may cause little concern. For example, the assumptions in
Montgomery,
87
discussed above, about the changing nature of the relation-
ship between doctor and patient might be well accepted and in accord with
general expectations of the community and the medical profession and may
accord with available empirical evidence.
88
However, there are some
dangers in over-reliance on judicial intuition, speculation, and common
sense in tort reasoning. Common sense may be the pathway to bias and
stereotyping in the law;
89
a judge's intuition may simply be wrong or
inconsistent with available empirical evidence;
90
diverse perspectives may
be precluded from judicial reasoning; there may be multiple common-sense
views; and judges may overvalue common sense or speculation in preference
to empirical evidence.
91
Intuition, judicial experience, and common sense are the result of the
human cognitive process, with all its fallibilities.
92
`Judges are human.'
93
It
is `inevitable that they are susceptible to cognitive bias.'
94
Cognitive bias
and cognitive illusions can infect judicial reasoning and influence judicial
assumptions of fact.
95
Insidiously, this occurs unconsciously. Judges are
generally unaware of the impact of cognitive illusions and biases on their
decision making and believe the reasoning process to be deliberative and
rational.
96
The impact of cognitive bias and cognitive illusions can have
significant consequences for the delivery of justice. For example, a recently
238
87 Montgomery, op. cit., n. 2.
88 The General Medical Council was an intervener in the case and provided
submissions to the Court. Some of these submissions may, in turn, have been
based in empirical evidence in relation to good practice, and to widely accepted
ethical and professional expectations and principles.
89 See R. Graycar, `The Gender of Judgments: Some Reflections on Bias' (1998) 32
University of British Columbia Law Rev.1; R. Graycar, `Gender, Race, Bias and
Perspective: OR, How Otherness Colours Your Judgment' (2008) 15 International
J. of the Legal Profession 73; K. Mahoney, `Judicial Bias: The Ongoing Challenge'
(2015) J. of Dispute Resolution 43.
90 Burns, op. cit. (2013), n. 4, pp. 86±90.
91 id., pp. 84±92.
92 For a more detailed discussion of judicial use of common sense and judicial
cognition, see Burns, op. cit., n. 9, pp. 9±21.
93 Lord Neuberger, op. cit., n. 10, para. 29.
94 id., para. 30.
95 C. Guthrie et al., `Blinking on the Bench: How Judges Decide Hard Cases' (2007)
93 Cornell Law Rev. 1; C. Guthrie et al., `Inside the Judicial Mind' (2001) 86
Cornell Law Rev. 777; Burns, op. cit., n. 9.
96 id. The recognition that judicial cognition may unconsciously impact on judicial
decision making challenges descriptions of tort law judging which assume it is a
rational, deliberative, coherent process, driven by adherence to legal principles
alone.
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study on judges presiding over parole hearings showed that even matters as
simple as judicial hunger and fatigue could have major impact on a judge's
decisions.
97
There is existing evidence that judicial values influence and impact on
judicial decision making in United Kingdom courts.
98
In addition, the group
decision-making context in appellate courts may also influence decision
making and potentially affect whether and how individual judges refer to
social facts.
99
There is now significant literature on the impact of judicial
cognitio n emerging fr om discipl ines such as la w, psychol ogy, and
behavioural economics.
100
Lord Neuberger recently referred to scientific
studies of judicial behaviour as `a growth area'.
101
There is also growing
recognition of the impact of psychology on tort law more broadly
102
and
behavioural economics and tort law.
103
This article cannot hope to canvass
all the implications of this literature on social facts, common sense, and
intuition in tort judging.
104
However, this section will argue that that a
consideration of judicial cognition can throw light on why judges use
common sense or intuition as a basis for social facts, and the potential
problems that may arise.
1. Bounded rationality/over-optimism
The concept of bounded rationality may at least partially explain judicial
over-reliance on common sense or intuition in tort judging.
105
Bounded
239
97 S. Danzigera et al., `Extraneous Factors in Judicial Decisions' (2011) 108
Proceedings of the National Academy of Sciences of the United States of America
6898.
98 Cahill-O'Callaghan, op. cit, n. 73.
99 See A. Paterson, Final Judgment: The Last Law Lords and the Supreme Court
(2013), which suggests decision making in the Supreme Court is a social and
collective process. Martinek has suggested collective judicial decision making may
depress judicial reliance on non-legal factors: W. Martinek, `Judges as Members of
Small Groups' in The Psychology of Judicial Decision Making, eds. D. Klein and G.
Mitchell (2010) 77. See, also, my study of negligence cases in the High Court of
Australia (Burns, op. cit. (2012), n. 4, p. 342) that found the frequency of social facts
was higher in single judgments than joint judgments.
100 For example, see the empirical work of Guthrie et al., op. cit., n. 95, and the research
undertaken by the Cultural Cognition Project at Yale Law School, at
www.culturalcognition.net/>. See, also, D. Teichman and E. Zamir, `Judicial
Decisionmaking: A Behavioral Perspective' in The Oxford Handbook of Behavioral
Economics and Law, eds. E. Zamir and D. Teichman (2014) ch. 26; Klein and
Mitchell, id.
101 Lord Neuberger, op. cit., n. 10, para. 26.
102 J. Robbenholt and V. Hans, The Psychology of Tort Law (2016).
103 Y. Halbersberg and E. Guttel, `Behavioral Economics and Tort Law' in Zamir and
Teichman (eds.), op. cit., n. 100.
104 For a more detailed discussion of the cognitive illusions discussed below, see Burns,
op. cit., n. 9.
105 id., p. 10.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
rationality refers to the fact that human cognitive capacity and abilities are
not infinite.
106
The ability of human bein gs to process information
cognitively is limited. Factors such as complexity of decision making, lack
of time, lack of information, ambiguity, and information overload contribute
to bounded rationality.
107
Bounded rationality can result in over-reliance on
mental shortcuts (heuristics and biases),
108
some of which are discussed
below. The result is that judges may, due to bounded rationality, over-rely on
their own intuition or common sense to fill factual gaps in tort and other
cases. In addition, the impact of the overoptimism/egocentric bias is that
judges may be likely to overestimate the `truth' value of their own intuition
or common sense, have limited appreciation of their ow n cognitive
limitations, and have enhanced confidence in the accuracy of common
sense comparative to empirical information.
109
2. Availability heuristic
As human judgement is memory based,
110
we tend to over-rely on material
that can be `readily called to mind'.
111
This forms the basis of the
availability heuristic, which may impact judges as it does human decision
makers.
112
Where a factual gap is experienced, it is likely to be filled by
information we have learned in the past that is easily available to us.
113
The
difficulty is that such information may not have an empirical basis but,
rather, is likely to represent our own reality. It is also well documented that
human beings are likely to over-rely on ease of recall of facts rather than
accuracy of facts. This can lead to over-reliance on vivid, well-publicized
`facts'. This is why, for example, people will routinely overestimate their
chance of death from causes such as homicide and plane crash.
114
The
240
106 C. Jolls et al., `A Behavioral Approach to Law and Economics' (1998) 50 Stanford
Law Rev. 1471, at 1477.
107 R. Korobkin and T. Ulen, `Law and Behavioral Science: Removing the Rationality
Assumption from Law and Economics' (2000) 88 California Law Rev. 1051, at
1077. The judicial decision-making environment is particularly wicked in these
respects: see Burns, op. cit., n. 9, p. 10.
108 The ground-breaking work of Kahneman and Tversky identified the predictable
mental shortcuts (or heuristics and biases) inherent in human decision making: see
A. Tversky and D. Kahneman, `Judgment Under Uncertainty: Heuristics and Biases'
(1974) 185 Science 1124.
109 Guthrie et al., op. cit. (2001), n. 95, pp. 814±15.
110 R. Hastie and R. Dawes, Rational Choice in an Uncertain World: The Psychology of
Judgment and Decision Making (2010, 2nd edn.) 89.
111 C. Sunstein, `Behavioral Analysis of Law' (1997) 64 University of Chicago Law
Rev. 1175, at 1188.
112 A. Orr Larsen, `Confronting Supreme Court Fact Finding' (2012) 98 Virginia Law
Rev. 1255, at 1287±8.
113 Hastie and Dawes, op. cit., n. 110.
114 id.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
availability heuristic can induce incorrect risk perceptions and estimations
into the determination of reasonableness in negligence.
115
The availability heuristic could influence judicial construction of common-
sense social facts in tort cases in a range of ways. It could lead to over-reliance
by judges on their own knowledge which they can easily recall. It may cause
judges to unconsciously over-rely on familiar or easy sources of information
rather than reliable empirical sources.
116
Judges may also refer to well
publicized social facts which are controversial and potentially inaccurate. In
the Hayward 2016 deceit case, Lord Toulson (with Lord Neuberger, Lady
Hale, and Lord Reed) stressed the importance of the case for its `practical
consequences for insurers and dishonest claimants':
Bogus or fraudulently inflated personal injury claims are not new. One of the
great advocates of the 20th century, Sir Patrick Hastings, recounted vividly in
his memoirs, `Cases in Court' (William Heinemann Ltd, 1949, pp. 4 to 20),
how as a young barrister before World War 1 he built up a practice defending
insurance companies against such claims. Now as then, they present a serious
problem. Personal injury claims usually fall to be met by insurers and the
ultimate cost is borne by other policy holders through increased premiums.
117
Rather than contemporary empirical evidence in relation to the nature and
incidence of insurance fraud, reference is made to a `vivid' recounting in a
67-year-old memoir of an a dvocate who specialized in r epresenting
insurers.
118
Reference by Hastings to his own personal experience as the
basis for factual assumptions about fraud in his 1949 memoir is unexcep-
tional, particularly in light of a likely dearth of empirical research about
fraud at the time. However, there are questions to be asked about whether
this is the best available material for judges to rely on in relation to the
nature and incidence of insurance fraud in 2016.
It is unsurprising that judges would refer to the serious ness and
pervasiveness of personal injury fraud in the United Kingdom. There has
been extensive media coverage of `compensation culture', government and
241
115 Robbenholt and Hans, op. cit., n. 102, pp. 42±3.
116 In Burns, op. cit. (2012), n. 4, p. 337, I discuss my study of Australian High Court
negligence cases which found that where judges did refer to a source for a social fact
in a negligence case, this commonly came from existing case law, causing contagion
of sometimes incorrect factual material from one case to another.
117 Hayward, op. cit., n. 41, para. 51.
118 A recent study of the ideology of American lawyers found that insurance defence
lawyers are likely to be more conservative in ideology than lawyers on average: see
A. Bonica et al., `The Political Ideologies of American Lawyers' (2016) 8 J. of Legal
Analysis 277, at 318. The ideology of lawyers may in turn impact their fact
perception and construction. As Moorhead comments, this may have implications in
the United Kingdom in relation to how personal political preferences may impact the
compensation culture debate: see R. Moorhead, `The Political Ideology of Lawyers'
Lawyer Watch, 17 November 2016, at
17/the-political-ideology-of-lawyers>.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
insurer concerns with fraud, and a very active government reform agenda.
119
This makes such information `available' and cognitively easy to base factual
assumptions upon. However, the incidence and nature of personal injury
fraud and the evidence base for government reform of recovery for personal
injury is controversial.
120
Morris has suggested:
it is generally accepted that there were issues at the margins, as it is difficult to
create access through a market without encouraging some excess, but no
evidence was advanced to support notions of widespread spurious and
fraudulent claiming.
121
Increases in claiming rates from 2000 onwards have been uneven with
significant increases in claiming rates only in road-traffic injuries.
122
It is in
this area that the `free market' institutional reform to the delivery of legal
services had most impact, in particular, the restructuring of the legal
profession, and the rise of claims management companies including the now
notorious rise of `cold-calling'
123
and `settlement mills'.
124
Structural factors
such as the removal of legal aid funding,
125
early government refusal to
regulate the claims management market,
126
law firm specialization, and
insurer engagement with both plaintiff and defendants has also affected
claiming rates.
127
Issues may also arise where judges refer to their own `available' experi-
ence about litigation as the basis for broader general assumptions about
litigants and litigation. For example, Lord Mance (dissenting) in Willers v.
Joyce,
128
suggested that judges have sufficient personal experience of
`disingenuou s behaviour and proce dural shenanigan s on the part of
242
119 For a discussion of the on-going `reform' agenda around the alleged `compensation
culture' see A. Morris, `Tort and Neoliberalism' in Private Law in the 21st Century,
eds. K. Barker et al. (2017) ch. 25; E. Quill and R. Friel (eds.), Damages and
Compensation Culture: Comparative Perspectives (2016). For a recent judicial
view, see Lord Clarke, `What shall we do about fraudulent claims?' William Miller
Commercial Law Annual Lecture, Edinburgh Law School, 20 November 2015, at
120 See Morris, id., and A. Morris, `Spiralling or Stabilising? The Compensation Culture
and Our Propensity to Claim Damages for Personal Injury (2007) 70 Modern Law
Rev. 349; R. Lewis and A. Morris, `Tort Law Culture: Image and Reality' (2012) 39
J. of Law and Society 562; A. Morris, `The Compensation Culture and the Politics of
Tort' in Tort and the Legislature: Common Law, Statute and the Dynamics of Legal
Change, eds. T.T. Arvind and J. Steele (2013).
121 See Morris, id. (2017).
122 id.
123 id.
124 R. Lewis, `Tort Tactics: An Empirical Study of Personal Injury Litigation
Strategies' (2017) 37 Legal Studies 162.
125 R. Lewis, `Compensation Culture Reviewed: Incentives to Claim and Damages
Levels' (2014) 4 J. of Personal Injury Law 209, at 215.
126 id., p. 216.
127 id., pp. 213±15.
128 Willers, op. cit., n. 61.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
litigants'.
129
Judges may extrapolate their `available' experience based on
litigated cases that they have been involved in as either lawyer or judge, to
the much larger population of cases and litigants whose cases they have not
been involved in. However, the nature of litigants and litigation which end
up in court (particularly in appellate courts) may in fact be aberrant and may
reflect outliers rather than usual litigants and usual litigation. Less than 1 per
cent of cases may actually be determined by a judge.
130
3. Representativeness heuristic
The representative heuristic operates as a form of `automated stereotyping'
which can lead to over-reliance on `impressionistic and intuitive reactions' on
the representativeness of information.
131
Guthrie, Rachlinski, and Wistrich
have found that judges can be affected by the representativeness heuristic.
132
This heuristic can lead to unconscious reliance on stereotyping, with
particular impact on presumptions about race, gender, and disadvantage.
133
It
can influence common-sense assumptions about what a reasonable woman
would know or do, based on judicial extrapolation of judicial experiences of
`women' which may not be typical of the broader class of `women'.
134
As
noted above, there may also be issues where judges extrapolate potentially
aberrant or outlier knowledge about litigation and litigants to `represent' all
litigants and litigation. The manner in which judges assess reasonableness
could also be impacted by `schemata' ± their pre-existing notions about how
things occur.
135
Certain types of injury, for example, whiplash, may be
categorized through a schema as `quintessentially fraudulent' which may
influence how factfinders assess responsibility.
136
4. Hindsight bias
The impact of hindsight bias is that people are more likely to consider
something was foreseeable or inevitable after the event, even if evidence
before the event would not have suggested this was the case.
137
The potential
impact of this on judicial reasoning, particularly in negligence law, has been
well documented.
138
The bias can infect common-sense judicial determina-
243
129 id., para. 134.
130 Lewis, op. cit., n. 124.
131 Guthrie et al., op. cit. (2007), n. 95, p. 22.
132 id.
133 E. Cunliffe, `Judging, Fast and Slow: Using Decision-Making Theory to Explore
Judicial Fact Determination' (2014) 18 International J. of Evidence and Proof 139,
at 150±7.
134 Burns, op. cit. (2013), n. 4, pp. 88±90.
135 Robbennolt and Hans, op. cit., n. 102, pp. 58±9.
136 id.
137 id., pp. 52±5.
138 Guthrie et al., op. cit. (2007), n. 95, pp. 24±7.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
tions after the event about what a reasonable person might have foreseen, or
how a reasonable person might have reacted in response to a risk. Once there
is knowledge a risk has actually eventuated, it becomes cognitively easier to
assume a reasonable person should have been aware of the risk and should
have had the cognitive and physical capacity to respond to risk.
139
5. Cultural cognition
Implicit in the debates about the proper role of policy reasoning in tort law
discussed in Part I, is an underlying concern about inappropriate judicial use
of individual ideology in judging.
140
Recent scholarship in law and cultural
cognition
141
has provided a more nuanced account about how judicial per-
ceptions of common sense might be unconsciously constructed and shaped
by individual `commitments to shared but contested views of individual
virtue and social justice.'
142
These shared commitments are `cultural
worldviews'.
143
Cultural cognition is a form of motivated reasoning whereby
a person unconsciously constructs or rejects factual assumptions and risk
assessments based on their congruence with their cultural worldview.
144
This
avoids cognitive dissonance
145
and results in/interacts with confirmation
bias.
146
Kahan and Braman have identified
147
four major cultural world-
views. Individualistic cultural orientations focus on the expectation of
individual responsibility for self, free from collective assistance and over-
regulation.
148
Solidaristic or communitarian orientations, by contrast, stress
collective needs and an expectation of communal support for `individual
flourishing'.
149
Hierarchical cultural orientation favours distribution of
resources, opportunities, rights, duties, and political office on the `basis of
244
139 id. See, also, Hedley, op. cit., n. 14, p. 502.
140 See literature listed in nn. 6 and 15 above.
141 Particularly work emerging from the Cultural Cognition Project at Yale Law School,
op. cit., n. 100.
142 D. Kahan et al., `Whose Eyes are you Going to Believe? Scott v. Harris and the
Perils of Cognitive Illiberalism' (2009) 122 Harvard Law Rev. 837, at 842. See
discussion of the broader impact of cultural cognition on judicial common sense
more broadly in Burns, op. cit., n. 9, pp. 18±21.
143 D. Kahan and D. Braman, `Cultural Cognition and Public Policy' (2006) 24 Yale
Law and Policy Rev. 147, at 151.
144 D. Kahan et al., ```They Saw a Protest'': Cognitive Illiberalism and the Speech-
Conduct Distinction' (2012) 64 Stanford Law Rev. 851, at 859.
145 The cognitive `distress caused by simultaneously holding two or more inconsistent
beliefs': see Robbennolt and Hans, op. cit., n. 102, p. 212.
146 The `tendency to unconsciously process information in a way that is consistent with
one's pre-existing preferences or goals', id.
147 Kahan and Braman, op. cit., n. 143, p. 151. They draw on work from anthropology
and sociology, in particular, the work of Douglas and Wildavsky: for example, M.
Douglas and A. Wildavsky, Risk and Culture (1982).
148 id.
149 id.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
particular social characteristics such as gender, class, lineage and race.'
150
Egalitarian worldviews favour egalitarian societies where distributions of
social goods are not based on `social characteristics'.
151
Empirical work has
confirmed how factual beliefs and risk perception can cluster according to
cultural worldview.
152
For example, those of an individualistic and hier-
archical cultural worldview show less concern about matters such as global
warming and environmental protection and are more antithetical to issues
such as business regulation, gun control, and same-sex parenting.
153
A recent cultural cognition study throws some light on the issue of
judicial construction of common sense.
154
Kahan, Braman, and Hoffman
studied the reaction of people to video evidence of a police car chase which
was key evidence in a United States Supreme Court case.
155
The Supreme
Court found, by a majority, that no reasonable jury could have failed to
consider on the basis of the video evidence, that the defendant posed such a
risk to the public as to warrant the application of potentially lethal force by
the police.
156
The study found that the majority of people viewed the video
in that light, with hierarchical and individualistic men more likely to take
that view than other groups. However, a significant number of people from
different cu ltural orient ations, parti cularly those w ho were Africa n-
American, low-income, liberals, and democrats were more pro-plaintiff
and less likely to interpret the video in the same manner as the Supreme
Court.
157
More recent research has shown that legal decision making by
judges is less likely to be affected by the impact of cultural cognition,
although risk perception and factual construction by judges are likely to be
linked to cultural worldview.
158
The professional expertise and training of
judges appears to provide a protection against the undue influence of cultural
worldviews when `performing the reasoning tasks characteristic of their
profession' , for example, leg alistic inter pretation and ap plication of
statute.
159
However, outside that expert `domain', judicial risk determination
and factual beliefs about contentious social and world issues may be as
245
150 id.
151 id.
152 id., p. 156.
153 D. Kahan et al., `Culture and Identity Protective Cognition: Explaining the White
Male Effect in Risk Perception' (2007) 4 J. of Empirical Legal Studies 465, at 466;
D. Kahan ```Ideology In'' or ``Cultural Cognition of'' Judging: What Difference
Does it Make?' (2009) 92 Marquette Law Rev. 413, at 418.
154 See, further, discussion in Burns, op. cit., n. 9.
155 Kahan et al., op. cit., n. 142.
156 Scott v. Harris 550 US 372 (2007).
157 Kahan et al., op. cit., n. 142, p. 841.
158 D. Kahan et al., ```Ideology'' or ``Situation Sense''? An Empirical Investigation of
Motivated Reasoning and P rofessional Judgment' (2016) 16 4 University of
Pennsylvania Law Rev. 349.
159 id., pp. 354±5.
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`polarized' as the general public.
160
Judges are unlikely to recognize the
impact of cultural cognition, believing themselves to be neutral and rational
decision makers. The phenomenon of naõÈve realism means that human
beings are good at recognizing the impact of cultural beliefs in the reasoning
of other people, but poor at identifying the impact of such beliefs on their
own reasoning.
161
There are significant potential implications of cultural cognition for tort
law judging and judicial construction of common sense in tort law reasoning.
Judges may favour social facts which most accord with their cultural
worldview rather than with empirical evidence. There are also potential
impacts on judicial risk assessment inherent in determining what risks should
be considered as reasonably foreseeable, and what reasonable people might
do in response to risk. Common-sense interpretation of the meaning of visual
phenomena such as warning signs might be flavoured by cultural world-
view.
162
Even where available empirical evidence exists in relation to a
social fact, the impact of cultural cognition may lead a judge to dismiss that
evidence (as invalid, unconvincing or not determinative) in favour of
common-sense assumptions which are more closely in accord with cultural
worldview. This might be the reason why unproven common-sense assump-
tions in tort cases (for example, police might be deterred from carrying out
other duties) might sometimes be preferenced in judicial reasoning as more
convincing than empirical evidence of widespread social harm, for example,
domestic violence.
6. Emotions/affect
Judges are typically considered dispassionate, neutral, and rational decision
makers.
163
This stereotype allows little consideration of how judicial emo-
tional response might influence judicial decisions or judicial fact construc-
tion. However, there is emerging scholarship which recognizes that judicial
cognitive process might be unconsciously impacted by emotional response
despite attempts to remain dispassionate. Maroney argues that emotion
inevitably plays a part in judicial decision making.
164
Emotion might
246
160 id.
161 Kahan et al., op. cit., n. 142, p. 895. This may be contributed to by egocentric bias
which prevents judicial appreciation of the limitations of their own knowledge: see
Guthrie et al., op. cit. (2001), n. 95, pp. 814±15.
162 On factors which might affect interpretation of warning signs, see M. Lesch et al.,
`Effects of culture (China vs. US) and task on perceived hazard: Evidence from
product ratings, label ratings, and product to label matching' (2016) 52 Applied
Ergonomics 43.
163 A. Wistrich et al., `Heart Versus Head: Do Judges Follow the Law or Follow Their
Feelings?' (2015) 93 Texas Law Rev. 855, at 856.
164 T. Maroney, `Why Choose? A Response to Rachlinski, Wistrich, & Guthrie's
``Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?'''
(2015) 93 Texas Law Rev. 317.
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unconsciously encourage judges to construct or interpret common sense in
ways that causes least conflict with their emotional response.
165
Recent
studies confirm that judges may be subject to emotional response in making
decisions.
166
This has potentially significant ramifications for how judges
construct common sense through intuition and experience in tort cases.
Common sense or intuition may unconsciously favour a version of social
facts which more closely accord with a judge's emotional or empathetic
response to a particular plaintiff or defendant, or their situation.
167
In this section, I have argued that what we call judicial common sense,
intuition or experience should actually be considered as the product of
unconscious judicial cognition. This may lead to quick and efficient judicial
determinations of social facts in tort cases. However, the impact of bounded
rationality, heuristics and biases, cultural cognition, and emotion can also
produce inaccurate or unintentionally biased social facts in tort law judging.
IV. RESPONDING TO THE IMPACT OF JUDICIAL COGNITION ON
SOCIAL FACTS IN TORT LAW JUDGING
How should we respond to the potential impacts of judicial cognition on
judicial construction of common-sense social facts in tort judging? I do not
seek to provide definitive answers but, rather, raise issues which require
further exploration.
168
We must accept that judicial intuition and experience
will remain key sources of social fact assumptions in tort cases. Just as these
sources of information are inherent in human decision making, so they will
remain inherent in judicial decision making.
169
It is impossible to prove all
social facts, and many judicial assumptions of common sense may accord
with community expectations. There are also institutional factors which
militate against empirical proof of all facts ± such as time, cost, and the
nature of the adversarial system. Nevertheless, the issues that can arise from
incorrect, incomplete or biased `common-sense' facts and the potential
impact of judicial cognition give cause for concern. We need to evaluate
more carefully how judges construct and use social facts in tort cases and
investiga te when and how em pirical info rmation coul d be usefully
considered by courts.
170
247
165 This avoids cognitive dissonance, and is also contributed to by motivated reasoning
whereby we interpret matters in ways that we `like' and see as `positive'.
166 For example, see A. Glynn and M. Sen, `Identifying Judicial Empathy: Does Having
Daughters Cause Judges to Rule for Women's Issues?' (2015) 59 Am. J. of Political
Sci. 37; Wistrich et al., op. cit., n. 163.
167 Hedley, op. cit., n. 14, p. 502.
168 For further discussion in the Australian context, see Burns, op. cit., n. 9, pp. 21±7.
169 Guthrie et al., op. cit. (2007), n. 95, p. 5.
170 As Blackham (op. cit., n. 8, p. 415) notes, while there has been considerable
discussion and some empirical study of use of empirical assumptions and empirical
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1. Should judges stop referring to social facts in tort cases?
Should judges simply stop referring to social facts in tort cases, and strictly
apply legal principles to only adjudicative facts? In relation to policy social
facts, Stevens has argued that where:
[the] only way of reaching a conclusion is to give effect to . . . personal
judgment as to the balance of policy reasons for or against liability, the correct
response is not to be open and honest about this. The correct response is either
to think again, or to resign.
171
That conclusion seems harsh, even if confined to social facts about policy
matters. As Hedley argues, no one person alone (that is, the legislature or the
judiciary) may ever do policy well
172
and perhaps the same may be said of
other social fact categories. Arguments against judicial use of social facts
based on lack of knowledge by lawyers and lack of legitimacy may not apply
in all circumstances.
173
Arguments which reject judicial reference to external
knowledge about policy concerns (or other social facts) also fail to account
for the reality that tort judging does sometimes unavoidably rest on social-
fact assumptions. This is not to suggest that tort law judging which rests only
on consequence-based policy assumptions is not problematic, and judges
ought not to be wary of relying on unfounded or speculative policy
arguments.
174
Clearly, for many of the reasons already discussed in this
article, there are problems in the way judges make policy-based social fact
assumptions. However, the `issue concerns not the fact that the use of policy-
based reasoning is problematic, but how to minimise the problems associated
with its use.'
175
Additionally, as Part I argued, social facts are not only used by judges
as the basis for consequentialist policy arguments. Judges also refer to
social facts as social framework, background, social context, and to
substantiate a change in social circumstances warranting a change of
direction in tort law. Judges in United Kingdom courts are already
referring to social facts in these ways. There is simply no case to suggest
that judges stop referring to social facts during tort law judging. Social
facts form part of the fibre of tort law. This leaves us with Witting's
suggestion that we should minimize problems with their use.
176
We also
248
evidence by courts in the United States and Australia, there is less similar work on
the United Kingdom.
171 Stevens, op. cit., n. 6, p. 314. See, also, R. Stevens, `The Proper Limits of Judicial
Law Making' (2016) on the Judicial Power Project website, at
project.org.uk/robert-stevens-the-proper-limits-of-judicial-law-making/>.
172 Hedley, op. cit., n. 26, p. 213.
173 id.
174 See discussion in Witting, op. cit., n. 15.
175 Witting, op. cit., n. 24, p. 640.
176 id.
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need to focus on ways to improve the accuracy and legitimacy
177
of social
fact finding in tort judging.
2. Acknowledge social facts and the impact of judicial cognition
There needs to be explicit recognition by the judiciary, the academy, and the
legal profession that social facts play a role in tort judging and that the
cognitive biases and cognitive illusions may impact judicial decision making
and judicial construction of fact.
178
This does challenge conceptions of
judicial decision making which see judging as a neutral, rational, principle-
based process, divorced from extra-legal concerns. However, there are
positive benefits that may flow as `the more we understand and recognise the
way judges as decision-makers work, the greater our ability to avoid errors
and biases.'
179
Only when the impact of cognitive illusions and cognitive
bias in judicial fact construction is acknowledged can further steps be taken
to both educate lawyers and judges, and to investigate strategies for `de-
biasing'.
180
3. Open the information flow
Common justifications given for the view that judges should not refer to
consequential policy matters (or other social facts) in tort law judging is that
judges do not have access to high-quality empirical information and are not
trained to interpret empirical information. The principles of private law and
tort law are internal and self-referential. I take a contrary view, that it is the
lack of engagement by lawyers and judges with empirical knowledge and
knowledge from other disciplines that contributes to judicial use of poor-
quality social facts. I favour opening the information flow to judges. In
saying this, I do not suggest that such material should dominate judicial
reasoning in tort cases or that judges descend to reasoning based only on a
battle of empirically supported policy consequences or other social facts.
Rather, like Hedley, I recognize both the internalist and externalist aspects of
tort judging.
181
I suggest that to the extent that tort law judging currently
rests on social fact finding, it could be improved. I also recognize that simply
providing further empirical material to judges may not of itself always
improve the quality of social fact finding. The nature of the cognitive
249
177 Blackham, op. cit., n. 8.
178 Lord Neuberger, op. cit., n. 10, para. 54.
179 id.
180 For more extensive discussion of potential responses to judicial cognition and
debiasing, see Burns, op. cit., n. 9. See, also, A. Wistrich and J. Rachlinski, `Implicit
Bias in Judicial Decision Making: How it Affects Judgment and What can Judges do
About it' in Enhancing Justice: Reducing Bias, ed. S. Redfield (2017).
181 Hedley, op. cit., n. 26, pp. 213±14.
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illusions I have discussed above, including cultural cognition, is that judges
may reject empirical information that causes cognitive dissonance or is not
in accord with their cultural worldview.
182
Posner has identified in the context of American courts, particularly the
United States Federal courts, a factual lacuna where judges rely on poor-
quality facts about the changing nature of the world and society, particularly
where parties have not provided sufficient information to the court.
183
There
are reasons to suggest that this same lacuna exists in courts in the United
Kingdom. As discussed above, there is some evidence of the use of empirical
material to inform judicial social fact finding in the United Kingdom.
However, common sense and judicial experience still appear to be major
sources of information about the world, society, and human behaviour. Lady
Hale has noted that recent `merit' criteria used by the selection commission
for the Supreme Court included `social awareness and understanding of the
contemporary world'.
184
One way of enhancing differing perspectives on
such matters is, of course, to increase the diversity of those appointed to
courts.
185
As Lady Hale has suggested:
if the life-blood of the law is experience and common sense, then whose
experience and common sense are we talking about? Surely it cannot only be
the experience and common sense of the judges, many of whom have led such
sheltered lives?
186
Lady Hale has also suggested there appears to be judicial wariness about
the value of empirical material to inform judges about `empirical facts'.
187
There be many be many reasons why this occurs, including judicial dis-
comfort with empirical material,
188
concern with the validity and reliability
of empirical material, lack of focus on the production of this material during
the adversarial process, lack of training of lawyers,
189
institutional barriers,
250
182 For discussion of the challenges of evidence based judging, see J. Rachlinski,
`Evidence-based Law' (2011) 96 Cornell Law Rev. 901.
183 R. Posner, Reflections on Judging (2013); R. Posner, Divergent Paths: The Academy
and the Judiciary (2016).
184 Lady Hale, ` Appo intme nts to t he Supr eme Co urt' ( 2015) , at tps:/ /
www.supremecourt.uk/docs/speech-151106.pdf> 11.
185 id., p. 15. This cannot be a complete solution as the evidence of the impact of
increased diversity on judicial decision making is mixed.
186 Lady Hale, op. cit., n. 58, p. 6.
187 id., p. 14.
188
id. This may occur because a judge considers such material is an inappropriate source
due to a more conservative philosophy of judicial decision making, or rejects certain
empirical material as irrelevant or unconvincing due to impact of cognitive dissonance
or conflict with cultural worldview. See, also, Justice Beatson, `Legal Academics:
Forgotten Players or Interlopers?' (2012), at
conte nt/upl oads/J CO/Doc uments /Speec hes/j ustice -beats on-inn er-tem ple-le cture -
12112012.pdf>.
189 K. Burns and T. Hutchinson, `The Impact of ``Empirical Facts'' on Legal
Scholarship and Legal Research Training' (2009) 43 Law Teacher 153. See, also, H.
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and the impact of unclear evidential rules in relation to the reception of and
reference to empirical material where not proven at trial.
190
Supreme Court judges, including Lady Hale
191
and Lord Neuberger,
192
have acknowledged the benefits of judges accessing material which may
inform them about the `real world' and allow them to look outside the
`silo'.
193
Some conduct their own research.
194
Posner has spoken of the
benefits of judicial use of the internet to supplement judicial fact finding.
195
This is not without its risks
196
and also raises issues in relation to appropriate
notice being given to parties to ensure procedural and natural justice.
Counsel may also bring empirical research to the Court's attention in
submissions
197
and there is a growing use of interveners in the Supreme
Court.
198
There are obvious possibilities for interveners to inform courts in
the United Kingdom of empirical research about society, the world, and
human behaviour. This has occurred in recent cases in the Supreme Court
including in Michael.
199
Of course, as the above discussion also illustrates,
empirical evidence may not always be determinative of the outcomes of
cases.
200
If the information flow of higher-quality empirical material to
judges is increased, there are also other issues that need to be addressed such
as judicial guidelines in relation to evaluation of the validity and reliability
of empirical research, and ethical or practice guidelines in relation to proper
use of a judge's own research.
201
There are also circumstances where
empirical information may be simply unavailable. In those cases, where
judges rely on speculative assumptions, they should proceed with caution
251
Genn et al., Law in the Real World: Improving Our Understanding of How Law
Works: Final Report and Recommendations (2003) (Nuffield Report), at
www.u cl.ac .uk/la ws/so cio-l egal/e mpiri cal/do cs/in quiry _repor t.pdf >; F. Bell ,
`Empirical Research in Law' (2016) 25 Griffith Law Rev. 262.
190 Blackham, op. cit., n. 8, pp. 432±4.
191 Lady Hale, op. cit., n. 58.
192 Lord Neuberger, `UK Supreme Court Decisions on Private and Commercial Law:
The R ole fo r Publ ic Po licy a nd Pub lic I nter est ' (201 5), at < htt ps:/ /
www.supremecourt.uk/docs/speech-151204.pdf> para. 7.
193 id.
194 id.
195 Posner, op. cit., n. 183.
196 E. Judge, `Curious Judge: Judicial Notice of Facts, Independent Judicial Research,
and the Impact of the Internet' (2012) Annual Review of Civil Litigation 325; B.
Grunwald, `Subop timal Social Science an d Judicial Precedent ' (2013) 161
University of Pennsylvania Law Rev. 1409.
197 For example, Montgomery, op. cit., n. 2.
198 L. Neudorf, `Intervention at the UK Supreme Court' (2013) 2 Cambridge J. of
International and Comparative Law 16.
199 Michael, op. cit., n. 65. See Conaghan, op. cit., n. 67, pp. 73±6, who notes the
potential for interveners to harness public processes to bring about social change and
advance public dialogue.
200 See, also, discussion in Lady Hale, op. cit., n. 58.
201 See Blackam, op. cit., n. 8; Burns, op. cit., n. 9.
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and acknowledge the lack of empirical support. Judges could also rely on
weaker versions of social consequence assumptions (for example, statements
which express a risk of an outcome rather than a positive statement) but we
should not throw out the baby with the bathwater.'
202
4. The academy, legal education, and judicial education
If judges are to have access to better-quality information on social facts,
there are other issues we must address. Are we doing enough in legal
education to educate students (and future lawyers) about the importance of
good-quality empirical information to support this kind of fact finding?
Unfortunately, the answer appears to be that there is typically very little
emphasis on these matters in legal education.
203
Are we doing enough to
educate judges? There is some evidence of judicial education in relation to
cognitive impacts on judicial decision making. Judicial education in relation
to issues such as gender, domestic violence, race, and issues of social
context has grown over recent decades.
204
In some jurisdictions bench
books on these issues also assist judges.
205
However, the time has probably
come where the `thorny issue' of judicial cognition needs more prominent
focus in judicial education.
206
There is also more work to do in relation to
training lawyers and judges in obtaining and evaluating empirical evidence.
Finally, the legal academy faces a challenge. How can we, in our own
research and publications, assist lawyers and judges by producing and
disseminating research which assists judicial reasoning?
207
How can we
252
202 Morgan, op. cit., n. 15, p. 221; Hedley, op. cit., n. 26, p. 213.
203 See literature in n. 189 above. The knowledge base of students entering post-
secondary law may also be narrow and may not include prior study of scientific or
empirical method. The A-level courses recommended by the Russell Group as
useful for law are history and courses involving essays and report writing: Russell
Group, Informed Choices: A Russell Group Guide for Making Decisions about Post-
16 Education (2016/17, 5th edn.); C.V. Rodeiro and T. Sutch, Popularity of A Level
Subjects Among U K University Stud ents (2013), at tp://www.cambr idge
asse ssm ent. org. uk/ imag es/1 4066 8-p opul arit y-o f-a- leve l-su bje cts- amon g-uk -
university-students.pdf> 18±19 shows the five most popular A-level subjects for law
as English Literature, History, Law, Psychology, and Sociology.
204 The `social context in which judging occurs' is a stated element of judicial training
in the strategy of the Judicial College 2015±2017. ```Social context'' includes
diversity and equality and these will be integral to the College's training
programmes', at < https://www.jud iciary.gov.uk/wp -content/upload s/2015/01/jc-
strategy-2015-2017.pdf>.
205 For example, see the recent release of a National Domestic and Family Violence
bench book in Australia, at
206 Lord Neuberger, op. cit., n. 10, para. 31.
207 This is one of the matters that Posner reflects on (op. cit. (2016), n. 183).
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bring our work to courts and judges and, accordingly, have broader social
impact?
208
CONCLUSION
I have argued in this article that social facts play a role in tort law judging in
the United Kingdom. Social facts are used not only as `truth claims'
supporting policy arguments, but as a social framework to interpret adjudi-
cative facts, and as general context and background. In some cases, these
assumptions can lead to changes in the development of tort law. There may
be some increase in the use of empirical evidence as a basis for these judicial
assumptions in tort cases. However, common sense, judicial experience, and
judicial intuition appear to remain the primary sources of social facts in tort
law reasoning. Common sense and judicial intuition are the product of
`unconscious' judicial cognition with the potential impact of heuristics and
biases, cultural cognition, and emotion. This raises issues which need further
attention including improving information flow of empirical material to
judges and attention by legal educati on, judicial education, and the
academy.
209
It is futile to ignore the role of social facts in tort law judging.
As Lord Carnwath has recently suggested in relation to judicial use of facts
more broadly in the law of obligations: `In the end the facts as found by the
judge are likely to be as important as the law.'
210
253
208 There are a range of views on the value of legal scholarship (particularly non-
doctrinal scholarship) to judges: see Beatson, op. cit., n. 188; Lord Neuberger,
`Judges and Professors ± Ships Passing in the Night?' (2012), at
www.judici ary.gov.uk/w p-content/u ploads/JCO/D ocuments/Spe eches/mr-sp eech-
hamburg-lecture-09072012.pdf>; Lord Reed, `Triremes and Steamships: Scholars,
Judges, and the Use of the Past' (2015), at
speech-151030.pdf>; Lord Carnwath, `People and Principle in the Developing Law
(2016), at .
209 This is a fertile area for further empirical research as has occurred in Australia and
the United States: see Blackham, at n. 170 above.
210 Lord Carnwath, op. cit., n. 208.
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