The Random Element of their Lordships' Infallible Judgment: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy
| Date | 01 September 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02839.x |
| Published date | 01 September 1992 |
| Author | B.S. Markesinis,Simon Deakin |
THE
MODERN LAW REVIEW
Volume
55
September
1992
No.
5
The Random Element
of
their Lordships’ Infallible
Judgment: An Economic and Comparative Analysis
of
the
Tort
of
Negligence from
Anns
to
Murphy
B.
S.
Markesinis
*
and Simon Deakin
**
Introduction
In
1977
the House of Lords handed down its seminal judgment in
Anns
v
Merton
LBC.’
The immediate question that their Lordships had to decide was whether a
local authority, whose agents and servants had failed to inspect or had inspected
negligently the foundations of a building under construction, could be liable in tort
towards an ultimate purchaser of that building when it developed defects which
posed
an imminent threat to safety and health. But the decision, while apparently not openly
stated by the House of Lords, also had a great bearing on the question whether
negligently inflicted economic loss could be compensated through the law of torts.
Finally, at its most abstract level,
Anns
also contained some very important dicta
about the notion of duty of care and when and how the courts should decide that
it came into existence.
In the years that followed
Anns
our highest court has returned to some or all three
of these issues (as well as the question of limitation) on at least twelve different
occasions.* Thus, in the space of fifteen years, nineteen Law Lords3 have given
*Denning Professor of Comparative Law in the University of London, Queen Mary
&
Westfield College,
University of London; Professor of Anglo-American Law, University of Leiden; Bencher of Gray’s Inn.
**Fellow of Peterhouse and Lecturer in Law, University of Cambridge.
Both authors wish to thank Carol Harlow, Ewan McKendrick, John Spencer and Bernhard Scheifele for
their valuable comments on an earlier draft.
I
[
19783 AC 728.
2
Junior Books Lrd
v
Veitchi
Co
Lrd
[
19831 AC 520 (henceforth:
Junior Books); Pirelli General Cable
Works Ltd
v
Oscar Faber and Partners
[
19831 2 AC
1
(henceforth:
Pirelli); Tare and Lyle Food and
Distribution Lrd
v
Greater London Council
[
19831 2 AC
509
(henceforth:
Tare and Lyle); Governors
of
the Peabody Donation Fund
v
Sir Lindsay Parkinson and Co Lrd
[I9851 AC
210
(henceforth:
Peabody); Candelwood Navigation Corp Lrd
v
Mitsui
[
19861 AC
1
(henceforth:
Candelwood); Leigh
and Sullivan Ltd
v
Aliakmon Shipping
Co
Ltd
[
19861 AC
785
(henceforth:
The Aliakmon); Wallace
Edward Rowling
v
Takaro Properties
[
19881
1
AC 473 (henceforth:
Takaro); Yuen Kun Yeu
v
AG
of
Hong Kong
[
19881 AC 175 (henceforth:
Yuen Kun Yeu); D
&
F
Estates Lrd and Others
v
Church
Commissioners for England
[
19891
1
AC
177
(henceforth:
D
&
F Estates); Smith
v
Eric Bush; Harris
v
Wyre Forest DC
[
19901 1 AC 831 (henceforth:
Smith
v
Bush); Caparo Industries plc
v
Dickman
and Other
[1990] 2 AC
605
(henceforth:
Caparo); Murphy
v
Brenrwood DC
[1991]
I
AC 398
(henceforth:
Murphy).
For
present purposes, we feel we can exclude from this list the decisions of
the House of Lords in
Ketteman
v
Hansel Properties
[
19871 AC 189 and
Curran
v
Northern Ireland
Co-Ownership Housing Association Ltd
[
19871 AC 718, even though they can be linked
to
the
Anns
rationale.
3 In alphabetical order: Lords Ackner, Brandon, Bridge, Brightman, Diplock, Fraser, Goff, Griffiths,
The Modern Low Review
55:s
September 1992 0026-7961
619
The
Modern
Law
Review
[Vol.
55
us the benefit of their views on questions that have vexcd lawyers from the common
law and Germanic worlds, but have left almost totally unexcited their colleagues
from the Romanistic group of systems (such as France, Italy, Belgium, the
Netherlands, Spain and the Latin American world). This learning has come in the
form of
298
pages of law reports or (approximately)
180,000
words, or the equivalent
of two average-sized doctoral theses. In this sea of ink, which does not include the
judgments of almost double the number of decisions from the Court of Appeal,4
our highest judges divided heavily against
Anns.
Thus while two of them (Lords
Wilberforce and Roskill) can clearly be described as proponents of the forward-
looking approach of
Anns,
the rest have, in varying degrees, played a key role
in
its demolition. Lord Keith has
led
the attack on
Anns
with four major opinions against
it,5 to be followed by Lords Bridge6 and Oliver’ with three, and Lords Fraser,!j
Templeman9 and Brandonlo with two each, the remaining Law Lords having
generally contributed brief (or very brief) concurring judgments. One could argue,
therefore, that the currently prevailing thesis, first robustly propounded
in
Lord
Brandon’s dissenting judgment in
Junior
Books,
is, in most respects, the brainchild
of Lords Keith, Bridge and Oliver, the last mentioned of whom has proclaimed
extra-judicially his intellectual antipathy for
Anns.
Such growing opposition to
Anns,
arguably fuelled by its expansive treatment
in
Junior
Books,
was bound to lead to the invoking of the
1966
Practice Statement
(Judicial Precedent)12 and the formal overruling by the House of Lords of one of
its most important recent decisions. One may disagree with the decisions of the
late
1970s
and early
1980s.
One might even feel that it was wrong to take
so
long
to ‘correct an error,’ given that the present position has, essentially, been fore-
shadowed since the
Peubody
decision in
1985.
Yet, arguably, the most disturbing
feature of these rich pronouncements is not
so
much that they display a change of
heart but an unsystematic and not fully thought-out series of shifts without proper
regard to what was said earlier or what may follow in the future. This criticism
can, of course, itself be criticised as confusing the role of the judge and the jurist,
both defined and elegantly defended by Lord Goff in his Maccabean Lecture.I3 But
after twelve, often long, decisions of the House of Lords it is time that even the
judges abandoned their usual ‘intense view of the particular’I4 and, taking a leaf
out of the book of academic training, occasionally strove for a more ‘diffused view
of the general.
’
In this article, we examine their Lordships’ tergiversations from
the complementary vantage points of economic and comparative analysis. These
perspectives highlight the extraordinary degree to which argument in our supreme
appellate court has been carried on in isolation from outside influences.
In
our
Jauncey, Keith, Mackay, Oliver, Russell, Salmon, Scarman, Simon, Templeman, Wilberforce and
Sir Robert Megarry.
4
For example, there were over eight in 1989 alone. See Huxley, ‘Economic
Loss
in Negligence
-
The 1989 Cases’ (1990) 53 MLR 369.
5 Namely in
Peabody, Takaro,
Yuen
and
Murphy.
6
In
D
&
F
Estates, Caparo
and
Murphy.
7
In
D
&
F
Estares, Caparo
and
Murphy.
8
In
Pirelli
and
Candelwood.
9
In
Tare and Lyle
and
Smith
v
Bush.
10
In
Junior Books
and
nte
Aliakmon.
1
I
‘Judicial Legislation: Retreat from
Anns’
(1988)
I
SCJ
249 (the Malaysian Supreme Court Journal);
also published in
[
1989)
Leiden Journal
of
hernational
Law
3 under the shorter title ‘Judicial
Legislation.
’
12 [I9661
1
WLR 1234.
13 ‘The Search for Principle’ (1983) 69
Proceedings ofthe British Academy
169.
14
ibid
at p 184.
620
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