Safety, Regulation and Tort: Fault in Context
| Published date | 01 July 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00860.x |
| Author | Maria Lee |
| Date | 01 July 2011 |
Safety, Regulation and Tort: Fault in Context
Maria Lee
n
The relationship betweentort and regulationis dense and complicated.This paper examinesdiverse
approaches to one small element of this relationship: the relationship between regulatory norms
and the standard of care i n personal injurycases. The lack of clear rules governingthat interaction
is not surprising:we wouldnever expectthe courts to giveup the authority (orabdicatethe respon-
sibility) togenerate private law norms; on the otherhand, nor wouldwe expect them toignore the
potential authority and legitimacy of external norms.The strength of external standards is best
identi¢ed byclose scrutiny of the regulation itself. The varying authorityof external norms in a
private law forum requires engagement with the process by which the external norms were
reached.Who and what determined the‘ought’ of regulation will provide greater insight into the
ways in which it should inform the ‘ought’ of tort.
INTRODUCTION
Tort’s regulatory backdrop has intrigued academics for many years.
1
But the real
contours of the relationship between tort and regulation are nevertheless surpris-
ingly under-explored, especially given the increased scope and complexity of
regulatory activity in recent decades. The dimensions along which tort and
regulation interactare endless. Some viewtort as a form of regulation;
2
or regula-
tion might so completely occupy the ¢eld that there is no space at all for tort.
3
Regulatory norms of qualitycan in£uence the point at whichpollution becomes
damage,
4
or the nature and sc ope of com mon law duties;
5
regulation may a¡ect
the reasonableness of an activity in private nuisance,
6
the nature of a defect in
n
UCL.This article was written with the support of a n AHRC Research Fel lowship,2010/11. Thanks
are due to participants at the Francis Taylor Bui ldings Environmental Law Seminar
(8 November 2010) and the UCL Centre for Law and the Environment work in progress seminar
(15November 2010) for their contributions. I am also grateful to Richard Macrory, Charles Mitchell,
Paul Mitchell, John Murphy and Joanne Scott for their detailed comments on an earlier draft of this
paper.
1For example R. Pound, ‘Common Law and Legislation’(190 8 ) 2 1 Harvard Law Review 383;
C. Morris,‘TheRelationship of Criminal Statutes toTort Liability’(1933 ) 4 6 Harvard Law Review
435 and ‘The Role of Crimi nal Statute in Negligence Action’ (1949) 49 Columbia Law Review 21.
2For cautious analysis, see P. Cane,‘Tort Lawas Regulation’(2002) 31Common LawWorldReview
305; J. Stapleton,‘Regulating Torts’ in C. Parker, C. Scott, N. Lacey and J. Braithwaite (eds),
Regulating Law (Oxford:Oxford University Press, 2004).
3This is rarely explicitly discussed in English tort law (although cases like Marci c vThamesWater
Utilities [2004] 2 AC 42 ( Marcic) come close); the US literature on pre-emption is interesting, see
forexample R. A. Epstein and M. S. Greve(eds), Federal Pre-emption:States’Powers, NationalInterests
(Washington DC:The AEI Press, 2007).
4Forexample, CambridgeWater vEasternCountiesLeather [1994] 2 AC 264 (HL); J.Steele,‘Private Law
and the Environment:Nuisance in Context’(1995) 15 LS236.
5X (minors)vBedfordshire CountyCouncil [1995] 2 AC 6 33; Marcic,n3above.
6Wheeler vJJ SaundersLtd [1995]JEL 278 (CA).
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(4) 555^580
products liability,
7
and even causation.
8
The scope of the debate is vast, and the
di¡erent interactions di⁄cult and potentially dense.
This paper tackles one apparently simple aspect of this inquiry, speci¢cally the
relationship betweenregulatory norms and the standard of care in personal injury
cases. Even descriptively, what courts handling negligence cases‘do’ with regula-
tion whenthey assess fault is unclear. The general view is that breach of statutory
standards is non-conclusive evidence of breach in negligence, a ‘useful rule’ that
Glanville Wil liams dates to the 19
th
century.
9
This begs a number of questions,
not telling us when or why a ‘reasonable person’ is expected to do more than com-
plywithregulation,merely to comply, or even to comply. This descriptive uncer-
tainty is compounded by the inescapable complexity of a regulatorycontext that
is not limited to the hierarchicalcontrol of ¢rms by the state: authority, expertise
and responsibility are dispersed, up and down beyond the state, and also out to
private parties, so that‘regulation’ can in principle embrace a very wide range of
approaches.
10
And normatively, the relationship between tort and regulation raises
perennial questions about thepublic and private, collectiveand individual, aswell
as the blurred lines between those categories.
It seems very unlikely that the courts will simply defer, across the board, to the
generation of norms in a nother forum; equally, the courts cannot ignore the
authority and legitimacy of some external norms. Straightforward rules on
the interaction between tort and regulation are likely to be elusive. Regulation
contributes to the shaping of fault, but there is no simple hierarchy between tort
and di¡erent forms of regulation. An examination of the case law con¢rms that
the courts take diverse approaches to regulation, as well as demonstratingsome of
the pragmatic and epistemic contributions of external norms to the shaping of
fault. However, the cases provide at best limited indications of the normative role
of external standards in a private law forum.We needto identify the questionsthe
courts do, and should, ask themselves when theydetermine the authority of reg-
ulation in assessing the standard of care. Ultimately this paper argues that the
authority of external norms is best assessed via engagement with the process by
which those external norms were reached.
THE NATURE OF THE DEBATE
The conventional approach to ‘fault’ in English negligence law turns around the
reasonable person, sometimes coupled with a requirement for prudence or care:
7Directive 85/374/EEC on the approximation of the laws, regulations and administrative provi-
sions of the Member States concerning liability for defective products [1985] OJ L210/29,
amended by Directive1999/34/EC [1999] OJ L 141/20.
8Calvert vWilliamHill [2008] EWCACiv 1427; [2009] Ch 330; see P.Mitchell,‘Problem Gambling
and the Law of Negligence’ (2010)Torts LawJournal1, 13.
9G.Williams,‘The E¡ect of Penal Legislation in the Law of Tort’(1960) 23 MLR 233;Blamires v
Lancs andYorks Ry(1873) LR 8 Ex 283.
10 See for example J. Black, ‘Decentring Regulation:Understanding the Role of Regulation and
Self-Regulation in a ‘‘Post-Regulatory’’ World’(20 01) 54 CLP 103. The complexit y of governance
has received moresustainedanalysis in contractthan in tort,H. Collins, Regulating Contrac ts (Oxford:
Oxford University Press,1999).
Safety, Regulation and Tort
556 r2011The Author.The Modern LawReview r2011 TheModern Law Review Limited.
(2011) 74(4) 555^ 580
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