1 See e.g. Sugarman, S.D., Doing Away with Personal Injury Law (New York 1989)Google Scholar; Palmer, G., “The Design of Compensation Systems: Tort Principles Rule, OK?” (1995) 29 Valpraiso L.R. 1115Google Scholar; Atiyah, P., The Damages Lottery (Oxford 1997)Google Scholar.

2 [1972] 3 All E.R. 557.

3 Cf. Lloyd L.J. in Kirkham v. Chief Constable of Greater Manchester Police [1990] 2 Q.B. 283, 289: “The common law frequently imposes liability for a pure omission where the defendant is under a duty to act or, as the case may be, a duty to speak…. The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility toward the plaintiff, and whether the plaintiff has relied on that assumption of responsibility.”

4 For example, a French court has said that there is a duty to come to the aid of strangers if the danger is “grave, imminent, constant … nécessitant une intervention immédiate”, although the rescue itself must not involve any “risque pour le prévenu ou pour un tiers”. See Lawson, F. and Markesinis, B., Tortious Liability for Unintentional Harm in the Common law and the Civil law (Cambridge 1982), vol. I, pp. 74–75Google Scholar.

5 Causation in the Law 2nd ed. (Oxford 1985) at pp. xliii-xlvii.

6 See Howarth, D., “O Madness of Discourse: Causation and the Law” (1987) 96 Yale L.J. 1389Google Scholar.

7 Note that “harm” here is used in a very broad way, and is capable of including the consequences of a failure to provide help or support. See text at notes 3 and 4 above.

8 See e.g. Equality, Responsibility and the Law (Cambridge 1998).

9 Cf. J. Stapleton “Tort, Insurance and Ideology” (1995) 58 M.L.R. 820.

10 Matt Kramer, who suggested this reason, would make such fortitude the primary rationale for the asocial view, rather than the avoidance of imposing burdens on others. That would allow us to link the asocial view even to cultures of revenge, in which what the injured seek is reprisal rather than compensation. It would also allow us to say that a society based on the asocial view can work only if people constantly display the vice of overweening pride. Such a conception of the asocial view has very strong cultural resonances, but it makes for too easy a target. The burden-relieving view, for which the value of fortitude can certainly be one rationale but not the only one, has a virtue at its heart, a Captain Oates-style self-sacrifice, which deserves to be recognised. Endurance is, however, an important secondary rationale for the asocial view, and forms the basis of its view of personhood. See below, text at note 13.

11 Admittedly some of the more literal-minded believers in the “proximity of relationship” requirement in negligence law would have one believe that physically injuring someone constitutes a relationship, but the claim is surely bizarre.

12 It is no wonder that the cinema image of the American West, the spiritual home of the strong, silent type, is an image of a society that combines both elements—little or no interaction between people interspersed with acts of violence.

13 Honoré, T., Responsibility and Fault (Oxford 1999) especially at pp. 9–10 and 23-32Google Scholar.

14 See Stapleton, J., Disease and the Compensation Debate (Oxford 1986)Google Scholar.

15 Op. cit. at note 8 above and also Coleman, J. and Ripstein, A., “Mischief and Misfortune” (1995) 41 McGill L.J. 91Google Scholar.

16 Op. cit. at note 8 above at p. 49. One should note in passing that Ripstein also has an inadequate view of the Learned Hand test for breach of duty, (at p. 59f) confusing the compensation payable with the true cost of the accident and thus making impossible one of the crucial questions in the economic analysis of torts, namely whether the courts are using the right measure of damages to achieve the ends inherent in the liability rule itself. This leads him to claim that his own “risk-ownership” method of deciding reasonableness is more distinct from the Learned Hand test than it really is (p. 60).

17 Palsgraf v. Long Island Railroad 248 N.Y. 339, 162 N.E. 99 (1928).

18 See J. Stapleton in The Law of Obligations, edited by P. Cane and J. Stapleton (Oxford 1998) at p. 59; Howarth, D., Textbook on Tort (London 1995)Google Scholar, ch 5; and “The General Conditions of Unlawfulness” in Hartkampf, A. et al., Towards a European Civil Code 2nd ed. (The Hague 1998)Google Scholar.

19 Ripstein claims (p. 60) that this formulation allows him to avoid a difficulty inherent in the more usual “risk-benefit” test that a defendant could claim that a particular course of conduct was not negligent towards a poor victim even though it would have been negligent towards a rich victim. This is because the “risk” includes an estimate of the fall in income-earning capacity suffered by victims if the accident happened. But note that in many cases, road accident cases, for example, defendants have no idea who their victims will be, so that in those cases the ex ante application of the risk-benefit test does not suffer from the defect Ripstein claims that it does. In cases in which the defendant does know that the victim (or the range of potential victims) has a lower than average income, in some accidents at work, for example, there is indeed such a problem with the risk-benefit test. It would, however, only be a problem if courts used the valuation methods used in the calculation of damages as the method of estimating the magnitude of the risk for the purposes of liability. Courts do not do this. For example, in cases where it is likely that the victims will be young people with low paid jobs and with no dependants, so that, in English law, the only damages payable if such victims are killed instantaneously are funeral expenses (see e.g. Hicks v. Chief Constable of South Yorkshire Police [1992] 1 All E.R. 65), there is no suggestion that the standard of care should be lower than if the probable potential victims were likely to be more costly in terms of damages. Life is not valued as a “pearl beyond price” in the standard of care, but it is also not valued as lowly as it appears to be by some of the damages rules.

20 See Howarth, “The General Conditions of Unlawfulness” note 18 above.

21 See e.g. Frances (Ketch) v. Highland Loch [1912] A.C. 312 and British School of Motoring v. Sims [1971] 1 All E.R. 317.

22 At p. 60 (Ripstein's italics).

23 Barrett v. Enfield London Borough Council [1999] 3 All E.R. 193, [1999] 3 W.L.R. 79; Phelps V. Hillingdon London Borough Council [2000] 3 W.L.R. 776, [2000] 3 F.C.R. 102.

24 Following the Osman case (Osman v. United Kingdom ECHR 28 October 1998 (1999) 11 Admin L.R. 200) it might have been believed that such a view would violate Article 6 of the European Convention on Human Rights. In Z v. United Kingdom ECHR 10 May 2001, however, the European Court of Human Rights made clear that “[I]t is a principle of Convention case-law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law…. It is not enough to bring Article 6(1) into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm.” For the view that such protection should nevertheless not be given, see S.H. Bailey and M.J. Bowman, “Public Authority Liability Revisited” [2000] C.L.J. 85.

25 W.W. Buckland, “The Duty to Take Care” (1935) 51 L.Q.R. 637.

26 This does not, however, exclude a “balancing” of reasons, of constitutional propriety or public policy, for and against granting such an exemption. The question of whether to balance liberty interests against security interests is a different question from how to strike that balance in a case in which balancing is permitted. See Z v. United Kingdom ECHR 10 May 2001.

27 See p. 555 above. The possibility that “omissions” are often taken not to give rise to responsibility (cf. Honoré, op. cit. note 13 above, pp. 41-66) makes no difference to this point. Omissions affect the world, because the world would have been otherwise had the omission not been made.

28 Even this might eventually count as in the human category. See e.g. The Guardian, 16 September 2000, p. 3 for discussion of proposals to deflect approaching asteroids using nuclear weapons.

29 Viz. all those theorists whose view, put simply, is that the presence of the victim at the scene of an accident is as much a cause of the harm as the acts of anyone else. See e.g. R. Posner, “A Theory of Negligence” (1972) 1 J.L.S. 29. The term “causal minimalist” is coined by Hart and Honoré, op. cit. note 5 above, at p. xxxiv, and discussed by them at pp. Ixvii ff.

30 This would be to go much further than the position taken by Finnis, John in Natural Law and Natural Rights (Oxford 1980) at pp. 118–125Google Scholar, which allows consequences a limited place in the attribution of value in the guise of seeking efficiency in gaining one's objectives.

31 Cf. Jane Stapleton's “socialised” risk, op. cit. note 9 above.

32 See the Beveridge Report (Social Insurance and Allied Services: Report by Sir William Beveridge (1942) Cmnd 6404) para. 26, defining “social insurance” as “a pooling of risks except so far as separation of risks serves a social purpose”.

33 For recent comment on this theme, see Stark, O., Altruism and Beyond: An Economic Analysis of Transfers and Exchanges within Families and Groups (Cambridge 1995)Google Scholar; and Bicchieri, C., “Learning to Cooperate” in Bicchieri, C., Jeffrey, R. and Skyrms, B. (eds.), The Dynamics of Norms (Cambridge 1997)Google Scholar.

34 See note 1 above.

35 See e.g. pp. 1, 32, 41, 71 and 189.

36 At p. 53.

37 In these last two examples the harm comes about, of course, from the victim's own actions (though consider the case of unhealthy food fed to children by parents and cases of addiction) but they are still the result of human action.

38 The rules are now contained in the Social Security (Recovery of Benefits) Act 1997.

39 Damages For Personal Injury: Medical, Nursing And Other Expenses; Collateral Benefits (Report no. 262) pp. 35-42.

40 Road Traffic (NHS Charges) Act 1999.

41 See F. Vandall, “Settlement: The Legal Theory and the Visionaries that led to the Proposed $368.5 Billion Tobacco Settlement” (1998) 27 Southwestern U. L. Rev. 473. For criticism see Griggs, T., “Comment: Medicaid Reimbursement From Tobacco Manufacturers: Is The States’ Legal Position Equitable?” (1998) 69 U. Colo. L. Rev. 799Google Scholar.

42 I am indebted to Matt Kramer for pointing out this line of thought.

43 See generally Home Office (Her Majesty's Inspectorate of Probation), The Victim Perspective: Ensuring the Victim Matters (HMSO, 2000), ch. 14.

44 See Home Office (Her Majesty's Inspectorate of Probation), The Victim Perspective: Ensuring the Victim Matters (HMSO, 2000), ch. 14; and Marshall, T., Restorative Justice: An Overview (London, Restorative Justice Consortium, 1998), p. 18Google Scholar (http://ssw.che.umn.edu/rjp/Resources/Documents/bmar98a.pdf).

45 Home Office (Her Majesty's Inspectorate of Probation), The Victim Perspective: Ensuring the Victim Matters (HMSO, 2000), ch. 14. See also Wright, Martin, Restoring Respect for Justice: A Symposium (Winchester 1999)Google Scholar.

46 See e.g. Marshall, op. cit. note 44 above; M. Umbreit, Victim Offender Mediation Continuum: From Least to Most Restorative Impact. (St. Paul, Minnesota, Center for Restorative Justice & Peacemaking, University of Minnesota, 1998) http://ssw.che.umn.edu/rjp/Resources/Documents/CUmb98a.pdf.

47 See Howarth, D., Textbook on Tort (London 1995) pp. 336–338Google Scholar.

48 See Schwartz, G., “Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice” (1997) 75 Tex. L. Rev. 1801Google Scholar for a survey of the various positions and the helpful suggestion that proponents of the two forms of theory—in crude terms economists and moral philosophers—should cease engaging in a Kulturkampf but should rather come to appreciate the compatibilities and inter-dependencies of the two forms of theory.

49 See Schwartz, op. cit. note 48 above.

50 Cf. Ronald Dworkin's justification for state expenditure on art—“Can a Liberal State Support Art”, in A Matter of Principle (Cambridge, Mass., 1985) pp. 221-233.

51 See Ronald Dworkin's pamphlet A Bill of Rights for Britain (London 1990).

52 For discussion of the possibility that the collective view might supersede both the social and the asocial view, see p. 574 below.

53 It might be unfair to attribute this view to Conaghan, J. and Mansell, W. in The Wrongs of Tort 2nd ed. (London 1999)Google Scholar, but in their complaints that tort law “conceives] of human activity in individual rather than social terms” they come close to it.

54 It should be made clear that this conclusion does not apply to those who wish to retain tort law but also to expand state benefits. This is an entirely consistent position.

55 Op. cit. note 1 above, at p. 176.

56 See the Beveridge Report, note 32 above, at para. 455.

57 For a summary of the various theories concerning possible deleterious incentive effects of social security benefits see Fennell, L. A., “Interdependence and Choice in Distributive Justice: The Welfare Conundrum” [1994] Wisconsin L. Rev. 235 at pp. 277ffGoogle Scholar.

58 See p. 555 above.

59 This is also why there is no equivocation in the use of the word “responsibility” in this article, as some readers of earlier drafts have claimed, saying that “responsibility” in the sense of the burden of caring for someone is different from “responsibility” in the sense of blame for harm. But a responsibility to care for someone is also a responsibility for the consequences of not caring for them.

60 Op. cit. note 1 above, at pp. 75ff.

61 [1957] A.C. 555. The case established that there is an implied term in contracts of employment under which employees have a duty to indemnify their employers for any losses suffered by the employer as a result of being held vicariously liable for a tort of the employee.

62 Op. cit. note 1 above, at p. 80.

63 Those who doubt this might ponder why Police Authorities in England, which have the extraordinary privilege of being able to impose taxation without having a democratic mandate, still complain from time to time about lack of resources.

64 Similarly, the fact that employers rarely invoke the implied indemnity under Lister v. Romford Ice and Cold Storage Co. Ltd. (see note 61 above) does not mean that employers are indifferent about such losses. Managerial resources are not confined to such sledgehammer tactics. The suggestion that the use of a similar indemnity by the police could be made compulsory, thus ensuring that individual officers always have a strong incentive to avoid tortious conduct, would have serious consequences for industrial relations in the police and should only be considered if it were clearly established that the police force was a pathological organisation in the sense discussed here.

65 Cf. Habermas, J., The Theory of Communicative Action vol. 2, trans. McCarthy, (Cambridge 1987) pp. 343–373Google Scholar.

66 E.g. X (Minors) V. Bedfordshire CC [1995] 2 A.C. 633. But see now Barrett v. Enfield London Borough Council [1999] 3 All E.R. 193, [1999] 3 W.L.R. 79, W v. Essex County Council [2000] 2 All E.R. 237, [2000] 2 W.L.R. 601, Phelps v. Hillingdon London Borough Council [2000] 3 W.L.R. 776, [2000] 3 F.C.R. 102.

67 Stovin v. Wise [1996] A.C. 923, now restricted in its effect since Barrett v. Enfield London Borough Council [1999] 3 All E.R. 193, [1999] 3 W.L.R. 79.

68 Harris v. Evans [1998] 3 All E.R. 522, [1998] 1 W.L.R. 1285.

69 OLL v. Secretary of State for Transport [1997] 3 All E.R. 897. But see now Kent v. Griffiths [2001] Q.B. 36.

70 Capital and Counties pic v. Hampshire County Council [1997] 2 All E.R. 865.

71 See e.g. Oates, W. and Schwab, R., “Economic competition among jurisdictions: efficiency enhancing or distortion inducing?” (1988) 35 Journal of Public Economics 333Google Scholar, but note also Revesz, R., “Rehabilitating interstate competition: rethinking the ‘race to the bottom’ rationale for federal environmental regulation” (1992) 67 New York University Law Review 1210Google Scholar.

72 See Atiyah op. cit. note 1 above, at pp. 140-141, 157 and 176.