via liability insurance.
Moreover, professed judicial reliance upon insurance
needs to be explained. Hence, Professor Stapleton maintains that in cases of inde-
terminate liability, the ‘real’reason for legal concern is in‘moral terms of the un-
fairness’ of such liability, and that judicial references to insurance are merely
shorthand for the indeterminacy problem, and therefore unnecessary.
not a danger here of begging the question? Might thecourts not view indetermi-
nate liabilityas (morally?) unfair justbecause it is uninsurable, as indeed Lord Oli-
ver stated in Caparo vDickman: indeterminate liability would ‘open up a limitless
vista of uninsurable risk for the professional man’.
Professor Stapleton also argues that most ofthe judicial references to insurance
are somewhat equivocal,‘at least as consistent with the judge merely observing
that the relevant liabilities canbe insured against as they are with the judge using
the insurability of the defendant as part of the reasons which convinced him to
impose liability on this particular occasion’.
To the extent that reliance on insur-
ance has been overt, it is noted that the cases typically involve Lord Denning.
While Professor Stapletondoes not quite sayso in as many words, the implication
is that the adoption of a novel approach by Lord Denning, and nobody else, is a
sign of heresy or unsoundness. To be fair to that extraordinary judge, he rather
cultivated the Quixotic image himself.Yet also, it should be remembered, his in-
novations often won through in the end.
However that maybe, it is u ndoubtedly
the case that two recent decisions of the Court of Appeal provide unequivocal
examples of insurance playing a central part in judicial reasoning ^ which cer-
tainly cannot be attributed to Lord Denning.
These cases will be discussedin the following sections. It is not to be supposed,
however,that they mark somewholesale reversal of judicialpolicy since Professor
Stapleton’s article. The change in the operation of the legal system, away from
corrective justice and individual responsibility towards compensation and loss
spreading, dates back to the early twentieth century. The courts today are the in-
heritors of a partial revolution in the law, which they are powerless either to re-
verse or to complete. Modern tort law is, at its heart, beset by £atly contradictory
values.What, if anything, can be doneto rescue the law from this state of incoher-
ence is no trivial problem, but in orderto address it, we must ¢rstof all acknowl-
edge the reality of the tension.
Vowles v Evans
InVo w l e s , the Court of Appeal held that the referee of an amateur rugby match
owedthe players a dutycarefully to enforce the rules of the game, so as to protect
3 D. N. Dewees, D. Du¡ and M. J. Trebilcock, Exploring the Domain of Accident Law:Taking the Facts
4 n 1 above830^831.
5  2 AC 605,643.
7ibid 827 n 20.
8cfScruttons vMidland Silicones  AC 446 and Contracts (Rights of Third Parties) Act 1999;
CandlervCra ne Christm as  2 KB 164 a nd Hedley Byrne vHeller[196 4] AC 465.
385rThe Modern LawReview Limited 2004