Tort law, risk, and technological innovation in England.

AuthorOliphant, Ken
PositionTechnological Innovation and Civil Responsibility

This paper considers the impact of technological innovation--and the risks arising from it--on the development of English tort law in the modern era, dating from around 1750, At a time when the old forms of action were losing their grip, unprecedented social changes resulted from the Industrial Revolution and the risks that it created. New mechanisms (insurance, regulation and social welfare) were introduced to control these risks and mitigate their effects. Tort law too was obliged to adapt, and its modern contours bear the mark of this history. However, fundamental questions about the proper function of tort law relative to alternative compensatory and regulatory mechanisms remain to be satisfactorily resolved.

Cet article se penche sur l'impact de l'innovation technologique, et des risques qui en decoulent, sur le developpement du droit anglais de la responsabilite delictuelle dans l'ere moderne, qui debuta vers 1750. A une epoque ou les vieilles formes d'actions perdaient en importance, la revolution industrielle et les risques qu'elle engendra produisirent des changements sociaux sans precedent. On introduisit de nouveaux mecanismes, tels l'assurance, la reglementation et l'assistance sociale, afin de controler ces risques et d'attenuer leurs effets. Le droit de la responsabilite delictuelle dut aussi s'adapter et sa forme moderne porte encore l'empreinte de cette histoire. Cependant, des questions fondamentales concernant la fonction appropriee du droit de la responsabilite delictuelle et des mecanismes alternatifs reglementaires et de compensation demeurent irresolues.

Introduction I. Technological Innovation and its Impact on Tort Law A. Road Building and Carriage Construction: Highway Accidents in die Eighteenth and Nineteenth Centuries B. Construction and Engineering Technology: Bursting Reservoirs, Leaking Dams, and the Acceptance of Strict Liability C. Modern Transport: The Railways and the Motor Car 1. Setting the Scene 2. The Railways 3. The Motor Car D. The Industrial Workplace E. Assessing the Impact of Technological Innovation on Tort Law' II. Technologies for Controlling Risk A. Insurance B. Regulation C. Social Welfare Conclusion Introduction

This paper considers the impact of technological innovation--and the risks arising from it--on the development of English tort law. It concentrates on the latter's formative period in the decades leading up to the abolition of the old forms of action in 1875 and the transition to the modern law. (1) As the hold of the former procedural categories loosened, courts and scholars engaged in the task of rethinking fundamental questions--in particular, the proper balance between strict liability and liability for fault. (2) During broadly the same period, the Industrial Revolution--beginning around 1750--also wrought fundamental changes to English society, and brought unprecedented risks alongside the undoubted benefits. The question that arises is whether and to what extent the massive technological and social changes that resulted impacted the development of the law of tort as it acquired its modern form. (3) That is the focus of Part I of the paper.

But the inquiry has a further dimension. Tort law's development was shaped not only by the risks created by technological innovation but also by the alternative compensatory and regulatory "technologies" that were introduced to control those risks or mitigate their effects. Tort law's interaction with these other systems--insurance, regulation, and social welfare--gave rise to immediate practical issues, and raised fundamental and still not fully resolved questions about tort law's function in modern society. Part II addresses these issues.

  1. Technological Innovation and its Impact on Tort Law

    1. Road Building and Carriage Construction: Highway Accidents in the Eighteenth and Nineteenth Centuries

      Even in the days of horse-drawn carriages, the highway could be a dangerous place, the more so as technological advances led to considerable increases in speed: from 4-5 m.p.h. in 1750 to 10-14 m.p.h. by 1830. (4) Stagecoaches originated around 1630, but were partially eclipsed by the faster mail coaches introduced in the late eighteenth century, which benefited from diverse innovations in construction technology and reached their maximum mileage in 1834. (5) By this time, there were fifteen times as many road passengers as forty years before, and they were conveyed by frequently large, highly capitalized coach firms. (6) Over the same period, there were also significant improvements in road construction and maintenance, resulting from the application of new engineering techniques. These too permitted higher speeds than before. (7)

      With higher speeds came an increase in the number of accidents. The "running-down cases" that resulted put under considerable stress English law's old distinction between the alternative actions in Trespass and Case, and paved the way for the recognition of a general liability for negligence in modern English law. (8) In the period of the forms of action, which Parliament ultimately abolished in 1875, (9) Trespass covered only "direct" injuries, and the Action on the Case was developed to provide a remedy in situations where the injury was "indirect"--at least where there was negligence, which was recognized as a requirement from the seventeenth century on. (10) In time, the category of indirect injuries came to be regarded as embracing any injury resulting from negligence. The final step was to accept that plaintiffs might sue in Case instead of Trespass even though their injury was the immediate result of the defendant's act, provided the collision was unintentional. (11) A particular factor pointing toward the expansion of the Action on the Case was that the coachman was rarely worth suing personally, so the plaintiff was obliged to rely on the principle of respondent superior (vicarious liability), which was recognized only in Case. The liability nevertheless rested on the coachman's negligence, and insofar as it arose independently of Trespass or any prior relationship between the parties may be regarded as a first step toward the recognition of negligence as an independent tort. (12)

    2. Construction and Engineering Technology: Bursting Reservoirs, Leaking Dams, and the Acceptance of Strict Liability

      In apparent contrast with the fault-based approach adopted in the running-down cases is the development of strict liability in respect of at least some forms of construction and engineering works. The leading case is Rylands v. Fletcher, (13) decided by the House of Lords in 1868. The plaintiff complained of the flooding of his mine by water leaking from the defendant's reservoir. Though not personally negligent in the reservoir's defective construction, the defendant was found liable to compensate for the harm. In the famous words of Justice Blackburn in the appealed judgment:

      [T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. (14) The reasons why this principle of strict liability came to be explicitly endorsed by the common law are hard to discern through the mists of time, but one plausible hypothesis is that the decision was influenced by specific political debates of the period. As Brian Simpson pointed out in a classic historical analysis, (15) at the time Rylands v. Fletcher came to the courts, there was widespread public concern about the risks inherent in industrial activities in general and reservoir construction in particular. Shortly before, there had been two major reservoir disasters in England. (16) In 1852, a badly designed and ill-maintained dam at Holmfirth in Yorkshire collapsed catastrophically, releasing an enormous volume of water that swept down the valley, killing seventy-eight people and rendering homeless or destitute thousands more. In 1864, another catastrophic dam breach led to the inundation of the city of Sheffield to a depth of almost three meters with water flowing from a reservoir belonging to the Sheffield Waterworks Company. At least 238 people died. (17)

      Considerable sympathy for the victims of such disasters, generally resulting in the organization of public charitable appeals for their benefit, was coupled with a feeling that entrepreneurs should pay their way--even if they were providing a public service. (18) In response to the Holmfirth catastrophe, Parliament had been persuaded to give statutory authority for new reservoir construction only on condition that the undertaker accept a statutory responsibility to compensate the victims in the event of a breach. Such terms came to be known as "Holmfirth clauses", after the village where the disaster had occurred. (19) Subsequently there were legislative proposals to consolidate the law governing reservoirs built under private Acts so as to ensure the inclusion of a compensation provision. The proposal was dropped in 1867--after the Exchequer Chamber's decision in Rylands v. Fletcher. (20) The Rylands reservoir did not require statutory authorization as it was constructed on private land, but the decision in the case can be seen as affirming that the common law should offer the same protection for private rights as would have been available under the statutory Holmfirth clauses.

      The English courts showed no initial reluctance to apply Rylands v. Fletcher. (21) However, the leading legal scholar at the turn of the nineteenth and twentieth centuries, Sir Frederick Pollock, (22) was strongly committed to the idea that negligence provided the unifying principle in English tort law, and so was predisposed against strict liability. Nevertheless, he refrained from open criticism of the case for some considerable time, before eventually admitting to "not much liking"...

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