Supreme Court Justice Lord Sumption has criticised the law of negligence and highlighted the benefits of ‘no-fault’ personal injury, in a speech that is likely to provoke controversy.
Lord Sumption, who is due to retire in December 2018, also commented that there is currently an unacknowledged trend among the judiciary towards strict liability. His speech last week to the Personal Injuries Bar Association, ‘Abolishing personal injuries law—A project’, noted that greater numbers of claims are being brought—he cites figures of about 250,000 claims in 1973 compared to 1.2 million in 2013–14.
He listed some of the factors for the increase, including increased public awareness of claims, a general societal tendency to regard physical security as an entitlement rather than luck, and judicial expansion of the scope of duty of care. Lord Sumption referred to the historic Thalidomide and Bendectin scandals to illustrate his point that ‘the law of tort is an extraordinarily clumsy and inefficient way of dealing with serious cases of personal injury.
‘It often misses the target, or hits the wrong target. It makes us no safer, while producing undesirable side effects. What is more, it does all of these things at disproportionate cost and with altogether excessive delay.’
He expressed scepticism about the argument that the fault element deters sloppy practices because there is no consistent evidence of this in the US. Moreover, he argued, negligence ‘generally happens through ignorance, incompetence or oversight’.
Lord Sumption also asserted that the courts have moved closer to strict liability, even in areas of law requiring fault, ‘because the whole forensic process of attributing fault is inherently biased in favour of the claimant’.
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