The Spurious Relationship between Moral Blameworthiness and Liability for Negligence

Article excerpt

[Traditional learning maintains that liability for negligence is ultimately premised on notions of moral blameworthiness. It is thought that the legal principles which define the scope of negligence loosely conform to such notions. This article challenges that view. While there is a certain amount of evidence which supports the conventional view, it is argued that this evidence is eclipsed by many important instances where the tort of negligence is insensitive to considerations of moral blameworthiness.]


I   Introduction
II  Evidence in Support of the Conventional View
III Departures from Moral Blameworthiness
       A Negligence Is a Type of Conduct
       B The Objective Standard of Care
       C Negligence and Strict Liability
            1 Vicarious Liability
            2 Non-Delegable Duties of Care
       D Exacting Standards of Care and a Decline in the
         Significance of Fault
            1 Motor Vehicle Accidents
            2 Employers' Liability
E   Proportionality and Damage
            1 The 100 Per Cent Principle
            2 Causation and the Requirement of Damage
            3 Joint and Several Liability
            4 Evidence of Compliance with the Proportionality
IV  Impact of Recent Tort Law Reforms
V   Conclusion


The prevailing understanding of the tort of negligence is that notions of moral blameworthiness furnish the philosophical foundation for liability. It is thought that blame on the part of tortfeasors justifies allocating the cost of accidents which they cause to them, rather than to the accident victims on whom the cost initially falls. This view has enjoyed resounding judicial endorsement at the highest levels since Donoghue v Stevenson, where Lord Atkin stated that 'liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.' (1) Since Lord Atkin's pronouncement, this precept has been extolled as 'the sovereign principle of negligence'; (2) 'the general underlying notion of liability in negligence'; (3) 'a reflection of practicality and common sense'; (4) and a fundamental premise which is 'indispensable to the law of negligence.' (5) The most poignant judicial support for this view, however, was given by Canadian judge and torts scholar, Allen Linden, when he equated it with 'a seed of an oak tree, a source of inspiration, a beacon of hope, a fountain of sparkling wisdom, a skyrocket bursting in the midnight sky.' (6)

Many academic commentators also view the tort of negligence through the prism of moral blameworthiness. For example, Glanville Williams and William Hepple assert that '[c]ommonsense morality suggests that a man who has been negligent ought to pay compensation to those whom he injures.' (7) Peter Cane argues that negligence is best understood as an ethical system of personal responsibility, (8) whilst David Owen maintains that blameworthiness is the 'basic cement' of negligence. (9)

Two initial observations regarding this conventional view should be made. First, advocates of this view do not perceive liability for negligence as being wholly consistent with notions of moral blameworthiness. They do not contend that blameworthiness provides an all-inclusive explanation for the tort of negligence. Only the most ardent proponents of the conventional view posit that negligence is (or should be) entirely coextensive with moral blameworthiness. (10) Morality and legal liability often fail to coincide. Indeed, Lord Atkin himself observed that 'acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.' (11) Rather, the position generally adopted is that whilst negligence and morality occupy separate domains, they are 'inextricably interwoven' (12) and enjoy a 'symbiotic' (13) relationship, with the result being that liability for negligence 'corresponds approximately' (14) to moral censure. …