Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00904.x |
| Date | 01 May 2012 |
| Published date | 01 May 2012 |
Street-Level Tort Law:The Bureaucratic Justice of Liability
Decision-Making
Simon Halliday, Jonathan Ilan and Colin Scott*
Most legal scholarship on tort focuses primar ily on judicial decisions, but this represents only a
limited aspect of tortious liability.The vast majority of decisions concerning tortious liability are
made by bureaucrats.Unavoidably then,there are two tiers of justice in tort law.This article focuses
on the lower tier – bureaucratic decision-making – arguing that the justice of bureaucratic
decisions on tort should be considered on its own terms and not by judicial standards.Wedevelop
the notion of bureaucratic justice, applying a normative framework originally set out in relation
to public administration.This enables an evaluation of the strengths and weaknesses of different
ways of bureaucratically determining liability claims in tort.The regimes discussed concer n the
liability of public authorities, but decision makers comprise both state and non-state actors and the
bureaucratic justice framework is,in pr inciple,applicable to understand and evaluate the liability
of both public and private actors.
INTRODUCTION
Much legal academic work on tort, like a great deal of legal scholarship, focuses
its attention primarily on the decisions of the cour ts.1Despite the importance
and value of such court-focused work,2its subject matter represents only a
limited aspect of the domain of tortious liability.Although it is tempting to think
about courts as the principal institutional mechanism for the delivery of civil
justice, it is well established that the vast majority of decisions concerning legal
rights are made by bureaucrats in both public3and private4organisations.
*Respectively, Law School, University of York and University of New South Wales; School of
Sociology, Social Policy and Social Research,University of Kent and School of Law,University College
Dublin.We are grateful to John Blackie,Jenny Steele and Prue Vines who read an earlier draft of this
article and provided helpful feedback.
1 For a recent exception,see T.T.Arvind and J. Steele (eds), Tort Law and the Legislature (Oxford: Hart
Publishing, 2012 forthcoming).
2 Most of this work is doctrinal in method. However,some of the empirical work on the effects of
state liability is similarly court-focused, framed in terms of better informing the empirical elements
of judicial reasoning. See J. Hartshorne et al,‘Caparo under Fire:A Study into the Effects upon the
Fire Service of Liability in Negligence’ (2000) 63 MLR 502;B. Markesinis and J. Fedtke,‘Damages
for the Negligence of Statutory Bodies:The Empirical and Comparative Dimension to an Unend-
ing Debate’ (2007) PL 299.
3 Eg J.L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven:Yale UP,
1983); J.F. Handler, The Conditions of Discretion: Autonomy, Community,Discretion (New York:Russell
Sage, 1986); M. Adler,‘Social Security and Social Welfare’ in P. Cane and H. Kritzer (eds), The
Oxford Handbook of Empirical Legal Research (Oxford: OUP, 2010).
4 Eg H. L. Ross, Settled Out of Court (Hawthorne: Aldine, 1980); T. Goriely et al,More Civil Justice? The
Impact of the Woolf Reforms on Pre-Action Behaviour (London:The Law Society and the Civil Justice
Council,2002); R. Lewis,‘Insurers and personal injury litigation: acknowledging the elephant in the
living room’(2005) JPIL 1; T.Baker, ‘Insurance in Sociolegal Research’(2010) 6 Ann RevL&Soc
Sci 433.
bs_bs_banner
© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(3) MLR 347–367
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Empirical socio-legal literature also tells us that the practical capacity of
bureaucracies to dispose of such claims depends on the tendency of claimants
to accept decisions which frequently would be amenable to further decision
making in court. When it comes to responding to gr ievances, most people
are ‘lumpers’ in that they rarely pursue their sense of g rievance to the stage
of public legal forums.5Taken together, these two basic findings point to the
significance of bureaucratic decision-making for the operation of law in
modern society.6Accordingly, it is the contention of this article that bureau-
cratic decision-making in tort is as important a focus for those seeking to
understand and evaluate the tort system and its effects as judicial decision-
making.
The empirical significance of decision-making within bureaucracies to the
operation of tort law raises important questions: how does such decision-
making operate and how should we assess those procedures against normative
standards? This article explores these questions by reporting on a research
project which included an empirical examination of the handling of negligence
claims against local authorities in Scotland and Ireland. We focused specifically
on claims made in respect of roads and footpaths where it was alleged that
negligent maintenance had led to harm. In terms of the incidence of liability
claims against local authorities generally, the provision of a roads service is
amongst the riskiest of all activities. Roads are the policy sector which attracts
the highest volume of claims. The Accounts Commission for Scotland, for
example, has reported that as many as seven out of ten liability claims made
against Scottish local authorities relate to road defects.7The same is true of
other jurisdictions.8Local authority roads claims, then, constitute a significant
body of ordinary liability claims. Further, unlike the image of roads-related
liability issues which one might glean from the familiar case law,9the vast
majority of claims made against local authority roads departments are rather
prosaic and routine and differ significantly from the ‘gladiatorial contests’ which
populate the law reports and most textbooks.10 Indeed, most claims are not even
the ‘trips and slips’ suggested by common parlance.Most claims relate to vehicle
damage rather than personal injury11 and are for small sums – generally well
5 Eg R. Miller and A. Sarat,‘Grievances, Claims and Disputes:Assessing theAdversary Culture’ (1981)
15 Law & Society Review 252; H. Genn, Paths to Justice:What People Do and Think about Going to Law
(Oxford: Hart Publishing,1999); H. Genn and A. Paterson, Paths to Justice in Scotland:What People
in Scotland Do and Think about Going to Law (Oxford:Har t Publishing, 2001).
6 See also M. Suchman and L. Edelman,‘Legal Rational Myths: The New Institutionalism and the
Law and Society Tradition’ (1996) 21 Law and Social Inquiry 903.
7 Accounts Commission for Scotland, A Costly Trip? Management of Road Safety Defects (Accounts
Commission for Scotland, 1996).
8 This seems also to be the case in Germany, for example. See B. Markesinis and J. Fedtke, n 2
above.
9EgStovin vWise [1996] AC 923; Gorringe vCalderdale MBC [2004] UKHL 15.
10 Lewis, n 4 above.
11 Two of our three Scottish case study authorities were able to provide data on this. In 2008–9,82.5
per cent of claims against ‘Sodor Council’ related to vehicle damage.The equivalent figure for
‘Knockbrex Council’ between 1998/99 and 2004/05 was 70 per cent.This picture supports more
general findings: seeAccounts Commission for Scotland, n 7 above; K. Atkinson,Highway Mainte-
nance Book (London:Thomas Telford Publications, 1996).
Street-LevelTort Law
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited.
348 (2012) 75(3) MLR 347–367
To continue reading
Request your trial