The Balancing Act of the Common Law: Predictability and Flexibility in Tort Law

The statement by Lord Neuberger captures the essence of the common law’s inherent tension between predictability and flexibility. As he notes, the common law strives to develop and apply principles to introduce consistency and logic into the legal framework (para. 49). However, it also acknowledges the dynamic nature of human experience and the constant evolution of social, economic, ethical, and technological spheres (para. 49).

This essay critically discusses the above statement by exploring the interplay between principles and exceptions in one specific area of tort law: negligence. It will demonstrate how the common law utilizes both predictability and flexibility to achieve just outcomes in the face of evolving circumstances.

Establishing Principles for Predictability:

One of the fundamental principles in negligence law is the duty of care. This principle establishes a legal obligation for individuals to act reasonably towards others to avoid causing foreseeable harm (Donoghue v Stevenson [1932] AC 562). Courts have established various tests to determine whether a duty of care exists, such as the neighbour principle in Donoghue v Stevenson (at 580) and the Caparo test in Caparo v Dickman [1990] 1 WLR 1292. These principles provide a framework for predicting who might be liable for negligence and ensuring some degree of consistency and clarity in legal rulings.

Introducing Exceptions for Flexibility:

However, the common law recognizes that rigid adherence to principles can lead to unjust outcomes in certain situations. This is where exceptions come into play. One well-known exception in negligence law is the doctrine of voluntary assumption of risk. This principle states that individuals who knowingly and voluntarily expose themselves to a potential risk cannot hold the responsible party liable if they suffer harm as a result of that risk (Volenti non fit injuria). For instance, in Dann v Hamilton [1939] AC 310, the plaintiff, aware of the potential dangers of participating in a fox hunt, was denied compensation for injuries sustained during the activity (at 317). This exception demonstrates the common law’s ability to adapt to specific situations and avoid imposing liability in circumstances where the plaintiff knowingly accepted the risk.

Balancing Principles and Exceptions:

The application of principles and exceptions in negligence law highlights the dynamic nature of the common law. Courts are constantly engaged in a balancing act, weighing the need for predictability and consistency against the need for flexibility and adaptability to ensure just outcomes in evolving situations. For example, in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (para. 38), the Supreme Court established a duty of care for the police to protect individuals from foreseeable harm caused by criminals, even if the specific criminal act could not be predicted. This landmark case demonstrates how the common law can adapt existing principles (duty of care) to address contemporary social challenges (rising crime rates) while maintaining legal coherence and predictability.

Conclusion:

Lord Neuberger’s statement accurately reflects the complex and ongoing dialectic within the common law. By utilizing principles to establish a framework for consistent decision-making and employing exceptions to ensure just outcomes in specific situations, the common law navigates the tension between predictability and flexibility. This continuous balancing act allows the law to remain relevant and adaptable in the face of ever-changing societal circumstances