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The Canengusian Connection: the kaleidoscope of tort theory.

In the course of our teaching and research, we uncovered a recent decision of the Supreme Court of Canengus. (1) The Judgment in Allan v. Derek was handed down on 1st April, 1984. We reproduce it here in the hope that it will be of some interest to tort lawyers and legal scholars generally.

DOCTRIN C.J.: This appeal arises from a road traffic accident near Ottlonwash on 18 May, 1980 in the late evening. The accident has given rise to several causes of action that have been consolidated for the purposes of this appeal. There are four central issues to be decided: whether Derek can recover damages from Allan for Allan's negligence; whether Derek was contributorily negligent; whether Martin was responsible in damages for his failure to rescue Derek; and whether Charles can recover damages for emotional distress and, if so, against whom.

The facts of the case are relatively clear and are not in dispute. Derek was driving home along a quiet, narrow and winding country road that was unpaved, unmarked and unlit. As he rounded a sweeping bend, he saw a single headlight approaching close to the other side of the road; he assumed this to be a motorcyclist. Unfortunately, it transpired that this light was that of a sports car driven by Allan, whose off-side headlight was not working. At the last minute, Derek realized his mistake and applied his brakes. Regrettably, his braking system did not function properly. The car swerved, left the road, and ended in a shallow ditch at the side of the road. Allan, who had also taken avoidance action, was unaware that a serious accident had occurred and continued on his journey borne.

This accident occurred near the isolated farm of Martin. At the time of the accident, he was standing on his front porch, calling in his dog for the night. Although he saw and heard the accident, he did nothing to ascertain whether anyone was injured or in need of help. For reasons best known to himself, be closed the door and retired to bed. Derek was trapped in his car. His right leg, stuck under the dashboard, was broken in two places. Reliable medical evidence has indicated that if Derek had then received immediate assistance, for example, by having the pressure on his leg relieved, the further complications which arose could have been averted. Sadly, he remained trapped for over half an hour and the blood flow to his leg was irreversibly impaired. As a result, his leg has been amputated.

Approximately thirty-five minutes after the accident, Jane came upon the scene. She was driving from Ottlonwash to her home in the village of Tormanyork. She immediately went to Derek's aid, dragging him from the wreckage after levering away the dashboard. She administered artificial respiration, which probably saved his life. Jane then ran to Martin's farm and persuaded Martin to telephone for an ambulance. Derek was rushed to hospital where an emergency operation was carried out. His life was in the balance. A telephone call was made by the police to Charles, who lived with and apparently enjoyed a homosexual relationship with Derek. Charles' answering service advised them that Charles was away on business. The police succeeded in locating Charles and left a message for him. Charles telephoned the hospital and was told by the staff that it would be some time before there would be any definite news, but that Derek was presently in the intensive care unit. Fortunately, through the skill of the hospital staff, Derek's life was saved. But this experience has left its tragic mark on Charles. The psychiatric evidence establishes that Charles has suffered severe shock, organic depression and a change of personality as a direct result of the injury suffered by his friend. Also, the relationship between Charles and Derek has ended. After spending three months in hospital, Derek moved back to his parents' home. He is confined to a wheelchair.

The trial judge held that, as Derek was fifty percent to blame, his damages should be reduced accordingly. In the third party proceedings brought by Allan against Martin, the action was dismissed. The judge concluded that there was no duty to rescue. Charles' claim against Allan for compensation for his emotional distress was allowed. Allan's application to the Court of Appeal was dismissed and Derek's cross-appeal on the question of duty to rescue was also dismissed. Allan now appeals to this court and Derek cross-appeals.

The case appears to raise a number of moral issues. However, I should make it clear from the outset that my concern is with the legal aspects of this case alone. Of course, the law, as a social force, overlaps with religion and morality, but it is incumbent upon me to resolve the issues presented in accordance with the law as it is, and not as some think it ought to be. Like Sir George Baker, "my task is to apply the law free of emotion and predilection"; see Paton v. Trustees of British Pregnancy Advisory Services, (1978) 2 All ER. 987 at 989. In blunt terms, "with purely moral obligation the law does not deal"; see Buck v. Amory Manufacturing Co., 69 N.H. 257 (1897).

Furthermore, as has been constantly emphasized, the desirability and continued existence of any particular law is for the legislature and not for the judiciary to decide. There is a clear separation of governmental powers in Canengus. The legislature has the constitutional responsibility to enact laws designed to achieve substantively just results; the judiciary has the task of interpreting, applying and dispensing this received wisdom. In this way, the fundamental democratic demands of consensus, at sought in the political process, and rationality, as embodied in the legal process, are met. Within this constitutional arrangement, arguments of law and morality are rendered mutually exclusive. The formal and neutral application of the rules infuses the law with a central integrity. The law is insulated from political controversy; see Duport Steel Ltd. v. Sirs, [1980] All E.R. 529 at 551.

Was Allan Negligent?

The issue of negligence can be dealt with expeditiously. The task for the Court is to determine whether Allan owed Derek a duty of care, whether that duty was breached and whether the breach has led to cognizable damages; see Donoghue v. Stevenson, [1932] A.C. 526. There is, of course, no general duty of care. In order to be successful, a plaintiff must show that he was a foreseeable plaintiff. The defendant must owe him a duty of care; see Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928). The court must be persuaded that there are no reasons or considerations of policy which dictate that this prima facie duty of care be circumscribed so as to deny the liability of the defendant; see Anns v. Merton London Borough Council, [1978] A.C. 728 at 751-52. The essence of the law has been succinctly captured by Macdonald J. in Nova Mink v. Trans Canada Airlines (1951), 2 D.L.R. 241:
   The common law yields the conclusion that there is a duty only
   where the circumstances of time, place and person would create in
   the mind of a reasonable man in those circumstances such a
   probability of harm resulting to other persons as to require him to
   take care to avert the probable result.


That a road user owes a duty of care to other road users is without question. The issue is whether Allan, in failing to have his car in proper working order, breached the standard of care to which a reasonable man would adhere.

It is well established that a breach of a statutory duty, while not conclusive evidence of liability, raises a prima facie case that the standard has been breached; see, for example, Queen v. Saskatchewan Wheat Pool (1983), 143 D.L.R. (3d) 9 and Clinkscales v. Carver 22 Cal. 2d 72 (1943). It was argued by counsel for the respondent that the Highway Traffic Act, R.S.C.E.S., c. 198, being a regulatory statute and carrying its own penalties for violations, was not designed to determine the standard of care in civil suits. It seems to me that if the legislature, in its wisdom, has seen fit to enact legislation to ensure safety on our nation's highways, this Court ought not treat such a pronouncement lightly. The legislature is in the best position to decide what the appropriate standards should be. Though let it be clear that, by accepting such a definition, this Court is in no way fettering its judicial discretion.

In Sterling Trusts Corp. v. Postma, [1965] S.C.R. 324, Cartwright J. considered the effect of a statutory duty in the context of a civil action for negligence. He settled on the following rule (at 329):
   I think it is plain that once it hat been found (i) that the
   respondents committed a breach of the statutory duty ... and, (ii)
   that the breach was an effective cause of the appellants' injuries,
   the respondents were prima facie liable for the damages suffered by
   the appellants.


In the present case, the evidence satisfies this two-fold test. A defendant can rebut the prima facie case by showing that the statutory breach occurred without any negligence on his part. I agree with the trial judge that the malfunctioning headlights could reasonably have been discovered. Accordingly, negligence on Allan's part has been established.

Was Derek Contributorily Negligent?

The more contentious question is whether Derek was also negligent and, if so, to what extent his negligence reduces Allan's liability. When two people are on the highway and their movement is such as to involve a risk of a collision, each owes to the other a duty to move with due care. Although Allan's negligence may have increased the likelihood of an accident, the realization of that risk was in large part the responsibility of Derek who was also in breach of the relevant statutory provisions. The duty on Derek is aptly summed up by Lord Justice Buckley in Lee v. Lever, (1974] R.T.R. 35 at 39:
   It is not the law that a driver is entitled to assume that all
   other users of the road will in all respects and at all other times
   obey the Highway Code or otherwise drive with all due care and
   circumspection or use the road in every way in which it should be
   used. It is Incumbent upon any driver to be prepared for
   foreseeable hazards, including hazards resulting from the
   foreseeable bad driving of other drivers or a foreseeable
   breach.... [I)t is incumbent upon every user of such a roadway to
   drive in a way which enables him to meet an emergency or a hazard
   presented (by other drivers).


The failure of Derek to ensure that his car was maintained in a roadworthy condition, such that it would be able to negotiate the normal hazards of night driving in the country, is strong evidence of his contributory negligence; see Parish v. Judd, [1960] 3 All E.R. 33. Accordingly, the Court of Appeal was quite correct in refusing to disturb the trial judge's reduction of the $1 million in damages by fifty percent under the Negligence Act, R.S.C.E.S., c. 315, ss. 2 and 5.

Did Martin Have a Legal Duty to Rescue?

The issue of whether there is a legal duty to rescue Derek raises what counsel has told us is one of the most sensitive and heated academic debates in tort law. Indeed, counsel for the appellant presented a most able and humanistic argument to suggest that this Court should give legal effect to what all agree is a dear moral obligation to one's fellow man. Appellant's counsel went on to argue that the law of tort itself was based on society's conception of right and wrong. In fact, the "neighbour principle" itself was said to stem from the biblical duty to love one's neighbour; see Luke, ch. 10, v. 29.

I am not persuaded, however, that we should vest this moral duty with legal sanction. The opinion of the court in Union Pacific R. Co. v. Cappier 72 P. 282 at 282-83 (1903), is as relevant today as it was at the turn of the century:
   With the humane tide of the question courts are not concerned. It
   is the omission or negligent discharge of legal duties only which
   come within the sphere of judicial cognizance. For withholding
   relief from the suffering, for failure to respond to the calls of
   worthy charity, or for faltering in the bestow meat of brotherly
   love on the unfortunate, penalties are found not in the laws of
   men, but in that higher law, the violation of which b condemned by
   the voice of conscience, whose sentence of punishment for the
   recreant act is swift and sure.


A survey of early cases reveals no legal duty to rescue, even where the litigants had a particular relationship such as a business association or the like; Osterlind v. Hill 160 N.E. 301 (1920) and Yania v. Bigan 155 A. 2d 343 (1959). In Yania, the plaintiff was the widow of a business visitor, who had jumped into the water to aid the defendant. The plaintiff's husband subsequently drowned when the defendant refused to come to his aid. The court held that there was no legal duty unless the defendant places the plaintiff in peril. Likewise, in Osterlind, the defendant rented a canoe to the plaintiff which, in foil view of the defendant, capsized and the plaintiff drowned. Once again, the court held no legal duty to effect a rescue.

Appellant's counsel pointed to a recent decision which held that a ship's captain has a duty to rescue a passenger who falls overboard; see Horsley v. Maclaren, [1969] 2 O.R. 137. Counsel argued that the courts are expanding the duty to rescue and urged this court to do so in this case. It is true that there are now several specific relationships that will give rise to a duty to rescue. However, most of these are founded upon statutory duties, such as the obligations of parent to child, or upon some implicit agreement, as between members of a social outing; see Farwell v. Keaton 396 Mich. 281 (1976). This court is bound by a long line of eminent authority. Until the legislature deems it appropriate to substitute a general duty to rescue for these cases where special relationships exist, we ought not to upset the delicate balance the common law has developed. Also, aside from the moral dimension, there exist very real technical and administrative difficulties associated with the introduction of such a general duty. What would be the extent of Martin's liability? And to whom would he be liable? Would Allan benefit from Martin's misfeasance? Both these administrative and moral problems combine to support the existing rules. Consequently, Martin cannot be found legally liable for his failure to rescue Derek.

Can Charles Recover for Emotional Distress?

Recovery for nervous shock caused by negligence is a relatively recent arrival on the tort scene. Prior to 1925 and the decision of Hambrook v. Stokes Bros., [1925] 1 K.B. 141, courts were quite markedly reluctant to allow plaintiffs to recover for nervous shock without any bodily injury to themselves. This reluctance was founded upon the view that such awards were difficult, if not impossible, to determine, and that nervous disorder and emotional upset was easy to feign. The remarks of Mitchell C.J. in Huston v. Borough of Fremansburg 61 A. 1022 at 1023 (1905), are pertinent:
   It requires but brief judicial experience to be convinced of the
   large proportion of exaggeration and even of actual fraud in the
   ordinary action for physical injuries from negligence; and if we
   opened the door to this new invention the result would be great
   danger, if not disaster to the cause of practical justice.


Since the turn of this century, the marvels and advances of medical science have come upon us with great speed. The field of psychiatry has grown to a point where diseases of the mind can be diagnosed and treated with a confidence that approaches certainty. And it is with matters of certainty that the courts of justice deal. As a result, courts have now begun to award redress to plaintiffs who have suffered recognizable psychiatric illness as a result of defendants' negligence; see Him v. Berry, [1970] 2 Q.B. 40. Initially, it was only admitted in cases where the plaintiff personally was in peril of physical harm, Dulieu v. White & Sons, [1901] 2 K B. 669, but the Hambrook case (supra) recognized that in certain specific relationships, such as between a mother and child, serious injury to another could be the basis for recovery; see King v. Phillips, [1953] 1 Q.B. 429.

There has been a gradual widening of the liability. The general trend has been to allow recovery where the plaintiff has come upon the immediate aftermath of an accident; see Marshall v. Lionel Enterprises, [1972] 2 O.R. 177. Perhaps the best test is the one laid down by Torbriner J. of the California Supreme Court in Dillon v. Legg 29 A.L.R. 3d 1316 at 1326-27 (1968):
   In determining, in such a case, whether defendant should reasonably
   foresee the injury to plaintiff, or. in other terminology, whether
   defendant owes plaintiff a duty of due care, the courts will take
   into account such factors as the following. (1) Whether plaintiff
   was located near the scene of the accident as contrasted with one
   who was a distance away from it. (2) Whether the shock resulted
   from a direct emotional impact upon plaintiff from the sensory and
   contemporaneous observance of the accident, as contrasted with
   learning of the accident from them after the occurrence. (3)
   Whether plaintiff and the victim were closely related, as
   contrasted with an absence of any relationship or the presence of
   only a distant relationship. The evaluation of these factors will
   indicate the degree of the defendant's foreseeability.


In the present case, Charles was nowhere near the scene of the accident and did not even come upon the aftermath. He was some 250 miles from the scene. Secondly, while he may well have experienced a true emotional disturbance rather than mere grief (which is not recoverable; see Duwyn v. Kaprielian (1978), 2 O.R.(2d) 736), it was not from the "sensory and contemporaneous observance of the accident" as is required; see, for example, Hathaway v. Supreme Court 112 Cal. App. 3d 728 (1980). Furthermore, I am not persuaded that there existed the necessary relationship between Derek and Charles to warrant an extension of the rule. In McLaughlin v. O Brian, [1982] 2 W.L.R. 982, where a mother was two miles away from the accident and only heard of it two hours later, the lack of immediate physical proximity was counterbalanced by the fundamental nature of their relationship as mother and family and her arrival at what amounted to the "immediate aftermath" of the accident. Notwithstanding this, it was argued that the facts of the present case were sufficiently analogous to existing doctrine to warrant recovery. Although it is true that the law must develop from case to case, we must also strive to maintain certainty and generality so as to avoid a doctrinal wilderness of single instances. The limits of liability must be drawn where the "good sense of the judges decides"; see Bourhill v. Young, [1943] A.C. 92 at 110 per Lord Wright. The words of Allan J. in Spade v. Lynn & B.R. Co. 47 N.E. 497 (1897), offer an appropriate warning:
   The law must be administered in the courts according to general
   rules. Courts will aim to make these rules as just as possible,
   bearing in mind that they are to be of general application. But as
   the law is a practical science, having to do with the affairs of
   life, any rule is unwise if, in its general application, it will
   not, as a usual result, serve the purposes of justice. A new rule
   cannot be made for each cue.... One may be held bound to anticipate
   and guard against the probable consequences to ordinary people, but
   to carry the rule of damages further imposes an undue measure of
   responsibility upon those who are guilty only of unintentional
   negligence.


In conclusion, therefore, I bold that, although Derek is entitled to recover from Allan, his damages will be reduced by fifty percent as a result of his own contributory negligence. Further, Charles has no claim against Allan or Martin for his emotional distress and Martin, while worthy of our moral opprobrium, is not liable to anyone for his failure to rescue Derek.

MILL J.: This appeal requires this Court to decide the proper basis of liability for physical harm, whether the law of civil wrongs should be extended to impose legal liability for nonfeasance (the so-called "duty to rescue") and, finally, the extent of liability for negligently inflicted emotional distress.

Reading the judgment of Doctrin C.J., it readily becomes apparent that her conception of the judicial role is confused, schizophrenic, and altogether too restricted. It also involves an ineffectual sleight of hand which a moments mature reflection reveals as self-contradictory. I say this more by way of clarification and introduction to my own judgment than as vindictive criticism of much of the doctrinal substance of her view of the common law. Indeed, I hope that it will become clear that I am in broad agreement with some of her conclusions. My concern here, however, is to clear away the rhetoric behind which her cloak-and-dagger approach to public policy lurks.

As with all law and life, two guiding principles dominate the law of tort: risk and uncertainty. It is the task of courts, as agents of the law, to select doctrines that minimize both. By creating the law through decisions operating as precedents in subsequent cases, the courts promote efficient resource allocation by optimizing these two related concepts. In tort law, concepts such as duty, reasonable foreseeability and causation are veiled terms through which the courts formally express the choices they have made. They operate as a convenient and accommodating screen behind which the real social drama is played out. As Lord Denning bluntly noted, "common law adjudication is ... at bottom a matter of public policy which we, as judges, must resolve"; Home Office v. Dorset Yacht Co. Ltd., [1969] 2 Q.B. 412 at 426. This sentiment gained the express approval of Lords Dilhorne and Diplock; see [1970] A.C. 1004 at 1051 and 1058 respectively. The accuracy of this admission is richly illustrated in English cases that have established the advocate's immunity from negligence liability; sec Rondel v. Worsley, [1969] 1 A.C. 191 and Saif Ali v. Sidney Mitchell A Co., [1980] A.C. 198. The common law is a vast and intricate doctrinal edifice, but its chief architect has been policy and not logic.

Formerly, this allusion to policy considerations was exemplified by cases which mooted a novel claim. In practice, judges have shown reluctance to expand the ambit of liability other than by way of rationalizing or arguing by analogy; sec McLaughlin v. O'Brian, [1982] 2 W.L.R. 982 at 988-89. Whenever a court decides that compensation is payable only for loss that was "reasonably foreseeable," it reaffirms a policy decision taken years or decades ago. The appeal to "policy" is unavoidable. That being the case, the judges ought now, openly and legitimately, to abandon their public naivete to take stock of the law of torts. There is obviously potential danger in this course of action. What strikes one judge as a suitable "policy risk" may appear to another to be the height of folly. But such idiosyncratic appeals may be properly guided by a systematic theory of civil liability.

For too long we have lacked a theory to explain adequately the social function of negligence liability and of the fault system of liability that is built upon it. The true test of any theory, of course, is its ability to predict or explain the full diversity and complexity of life. Without the capacity to formulate some general hypothesis we can have no system of law that is properly understood. And, without that facility, we cannot have the system of law which we understand to be one in which people can properly and confidently place their expectations and plan their behaviour. To reply with Aristotle, as my colleague Justice Wright is wont to do, that the real purpose and only proper effect of tortious liability is to restore to a person what has been wrongfully appropriated in some way--the concept of "corrective justice"--would offer no insights into the source of the norms by which the conduct was judged wrongful. Thus, the experiential basis of my proposed theory confounds any critics who would suggest that the theory rests on unrealistic behavioural assumptions. My theoretical model is concerned with the proper rules of tort law. It is open to criticism only insofar as the postulates seek to explain not simply nor exclusively individual conditions, but the totality of those conditions. The behavioural consequences of the rules which this theory produces are beyond the scope of this Court to examine, beyond even the bounds of the theory to predict, in the individual case.

My model is premised on the fact that the world is finite, an aggregate of scarce resources. Choices must be made, for example, as to the use, conservation and distribution of fossil fuel. So too must difficult choices be countenanced everywhere in our society. In torts, we must recognize the continuing force of Lord Atkin's dictum 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"; Donoghue v. Stevenson, [1932] A.C. 562 at S80. Ours is a practical world. We judges are practical men and women of that world. It is for this reason that I find Justice Lefft's abdication of the judicial task so distasteful and unjustified.

It is this concentration on the life of the practical world, with its scarce resources, which further leads me to reject the constitutional separation of powers doctrine so rigidly adhered to by Chief Justice Doctrin. We would close our eyes to the distributive effects of our decisions in this Court if we were to accept wholeheartedly her inflexible and formal distinction of law-making roles. To believe that the legislature, with its tightly constrained timetable of political, social, moral and economic issues, can necessarily accommodate law reform at the drop of this Court's hat is to live in some other world. Political indifference and its legislative ally, inertia, are facts of life. Unless we properly appreciate the effects of these forces, we will relentlessly pursue the "principled" decision-making of Chief Justice Doctrin to the ultimate swamping of our tort system. Irrespective of the inefficiencies which this approach would sanction, we would fail in our political and social duty to ensure that the law meets the demands of contemporary society or, as with our present system of ad hoc decision-making, the demands of society for some years past. The true measure of common law adjudication is the extent to which it can resolve today's problems in a fashion that will allow for the dual considerations of the predictive certainty of the law to meet the expectation of society and the optimalization of accident costs and resources.

How, then, can theory construct an adequate response to these conditions? It is not without interest that the response to uncertainty has occupied the forefront of human endeavour. Many of the distinctive institutions of primitive society, such as polygamy and extended family groups, can be understood as such a response. Further, with the recognition of the institution of private property comes the related doctrine of contract, for the purpose of all contracting is risk-shifting; sec Photoproductions Ltd. v. Securicor, [1980] 1 All E.R. 556 and Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540 (1903). As a society develops, its wealth increases. Moreover, as the opportunity for interaction expands, there will be a corresponding rise in the probability of interfering with or harming others' interests. More state-imposed control and protection is demanded. But, unless we are particularly watchful, this increased control and protection could interfere with the perfect market in which voluntary exchanges result in resources gravitating toward their most valuable uses. The goals of private and social allocative efficiency may be lost. Information becomes more difficult to obtain. The transaction costs between individuals will become prohibitively high, particularly in modern accident claims which typically arise from random and chance occurrences. Resources will be wasted.

If there were no barriers to effective bargaining, the assignment of legal rights would not affect the social efficiency of the final outcome. For example, Dexter lives next to a cricket ground, owned by Cowdrey, and is frequently assailed by hard-hit balls. Dexter could take adequate precautions at $500, but it would cost Cowdrey $1,000. If Cowdrey was legally liable, he would bargain to pay Dexter $500 to take the necessary precautions. If Cowdrey was not legally liable, Dexter would have to spend $500 on precautions. Either way, the socially efficient level of precautions would be taken. But bargaining is a costly business and becomes prohibitively so between strangers. We must strive to mimic a market in which these very real costs are accounted for and in which our goal, in tort law, is to reduce the sum of the costs of accidents and the cost of avoiding accidents. As such, tort seeks to regulate the relations between strangers on the basis of the implied terms of some hypothetical contract.

Undoubtedly, the desirability of social efficiency as a goal requires a value judgment as to the justness of the underlying distribution of income and property rights. The model is limited to the extent that it seeks to optimize the use and exchange of whatever rights people start out with. But this bespeaks not so much a limitation of the theory itself, as a limitation and appreciation of the proper bounds of political and judicial action. The dominant contemporary theory of the state is no longer one of general optimism concerning governmental intervention in the economic system, it is now a theory of redistribution. Tort law, dealing as it does mainly with accidents, does not lend itself well to a redistributive theory that emphasizes the intervention of the state to redistribute wealth from the powerless to the powerful. It is not plausible to think that interest groups will overly concern themselves with redistribution through the tort system or will place accident compensation reform on their agenda for legislative action anyway. This point is perhaps not fully grasped by Justice Lefft, whose well intentioned, but misguided energies may now become a real cost in the world of imperfect information. My theory attempts to come to terms with this precise problem.

Rules of tort law must be designed and implemented so as to facilitate and simulate the operation of a free and competitive market. In a world of transaction costs, the initial assignment of rights is of crucial importance and has a fundamental impact on the allocative efficiency of societal resources. The practical implementation of my thesis must, and does, take account of this factor. The rule of liability is relevant and will determine whether resources are used in an economically efficient manner. In most accident situations, private bargaining is not feasible; bargaining costs may be prohibitively high. The necessary information may be unavailable, imperfect or too expensive, there may be too many parties to the potential transaction or there may be the problem of excluding free riders--those who do not pay for the benefits they receive--from the bargain. This, of course, is the case with Allan and Derek. Consequently, the rules of liability must as closely as possible approximate the apportionment of risk that would have been arrived at by the litigants if they had been able to bargain. Any dispute which reaches a court is, after all, only a case in which the bargaining process--settlement out of court--has broken down. Where this result is impractical or impossible, the law should seek to simulate an outcome that would be produced by market forces in a world which generates no transaction coats.

The economic logic of the competitive market must become the unifying force of the common law. The market and the legal system are similar operational institutions. Like the market, the legal system could be a competitive process in which the pursuit of self-interest serves to promote an efficient allocation of resources. If the invisible hand of the market is replicated by the pen of the detached and impartial judge inefficient rules will be litigated out of the system. The adversary system could be a substitute for marketing strategies and consequently oblige the judge to act as a consumer in choosing between two fiercely promoted products. Legal rules could be cast as economic incentives to encourage individuals to maximize efficiency. Like the economic actor, the legal actor could be presented with the costs of any course of action in order to decide whether to incur those costs. The common law of tort, therefore, should be assiduous in its allocation of responsibilities between people engaged in interacting activities, so that the joint value of those activities is maximized and the joint cost of those activities is minimized. More particularly, the law must seek to encourage individuals to achieve a level of safety at which the value of the risks involved in an activity is equal to the cost of the precautions necessary to maintain that degree of safety. In short, individuals must be persuaded to "internalize" the costs of accidents.

Accordingly, the notion of "economic efficiency" is a broad one. It explains how scarce resources are allocated among competing and alternative choices. Alternatively, it is not simply confined to the minimization of administrative cost or the maximization of technical output, but also deals with the welfare of society, whether the actual allocation fits with and responds to what people want or can afford. The failure to appreciate that "efficiency" is a relative term has led to much confusion. An efficient allocation of resources exists where there is no other pattern of allocation that would improve any one persons welfare without making any other person worse off, or when those who do benefit from a reallocation of resources can compensate those who do not and still themselves point up an improvement in their own welfare. In this context, the central task for tort law is to design rules of liability which will provide a sufficient incentive to achieve an efficient level of safety by deterring carelessness and rewarding care. As the Court summarized in Losee v. Buchanan 51 N.Y. 476 at 484 (1873):
   By becoming a member of civilized society, I am compelled to give
   up many of my natural rights, but I receive more than a
   compensation from the surrender by every other nun of the same
   rights, and the security, advantage and protection which the laws
   give me.... We must have factories, machinery, dams, canals and
   railroads. They are demanded by the manifold wants of mankind, and
   lay at the basis of all our civilization. If I have any of these
   upon my lands.... I am not responsible for any damage they
   accidentally and unavoidably do to my neighbor. He receives his
   compensation for such damage by the general good in which he shares
   and the right which he has to place the same things upon his lands.
   I hold my property subject lo the risk that it may be unavoidably
   or accidentally injured by those who live near me; and as I move
   about upon the public highways and In all places where other
   persons may lawfully be. I take the risk of being accidentally
   injured in my person by them without fault on their part Most of
   the rights of property, as well as of person, in the social state,
   are not absolute but relative, and they must be so arranged and
   modified, not unnecessarily infringing upon natural rights, as upon
   the whole to promote the general welfare.


Some will enthusiastically accept this theory, while others will vehemently reject it. However, all might reasonably inquire as to its relevance and applicability to legal disputes. As Doctrin C.J. correctly, if with some exaggeration, points out, the judicial task is to apply the law and not to legislate one's preferences or prejudices. I fully agree. But the court can and must go beyond a blind and mechanistic application of formal rules. In order to keep the law in step with the march of modern society, judges must look beyond the letter of the law to its motive force and spirit. It is my honest and firm conviction that the notion of "allocative efficiency" is the golden thread which weaves together into a fine garment the seemingly disparate strands of the common law. Hitherto, this has only been vaguely glimpsed and partially grasped. Accordingly, although the theory of tort law suggested here has a clear political dimension, it does not represent a naked and personal political choice on my part. Indeed, a judge who follows and substantiates the logic of "allocative efficiency" more closely satisfies the democratic ideal of adjudication than the unthinking formalist.

The centrepiece of negligence law is the seminal judgment of Judge Learned Hand in U.S. v. Carroll Towing 159 F. 2d 169 (1947). The test for liability developed by him has a long and impeccable pedigree; see, for example. Mackintosh v. Mackintosh 36 Jur. 678 (1864), Chicago, Burlington A Quincy Rly. Co. v. Krayenbuhl 65 Neb. 889 (1902) and Conway v. O'Brien 111 F. 2d 611 (1940). The beauty of this test is its simplicity and comprehensiveness. With subtle adjustments that remain loyal to Learned Hand's ambition, it can be made to revolve all the problems of accident liability. It is an algorithm for all negligence law. When viewed and applied correctly, the problems of causation, contributory negligence and rescue that so vex Doctrin C.J. and others like her dissolve.

In U.S. v. Carroll Towing, supra, an unattended barge had slipped its moorings and collided with another ship. In holding the barge owners liable, Judge Learned Hand stated that:
   [T]here is no general rule to determine when the absence of a
   bargee or other attendant will make the owner of the barge liable
   for injuries to other vessels if she breaks away from her
   moorings.... It becomes apparent why there can be no such general
   rule, when we consider the grounds for such a liability. Since
   there are occasions when every vessel will break from her moorings,
   and since, if she does, she becomes a menace to those about her,
   the owner's duty, as in other similar situations, to provide
   against resulting injuries is a function of three variables: (1)
   The probability that she will break away; (2) The gravity of the
   resulting injury, if the does; (3) The burden of adequate
   precautions. Possibly it serves to bring this notion into relief to
   state it in algebraic terms: if the probability be called P; the
   injury, L; and the burden, B; liability depends upon whether B is
   less than L multiplied by P; i.e., whether B < PL.... In the case
   at bar the bargee left at five o'clock in the afternoon of January
   3rd, and the flotilla broke away at about two o'clock in the
   afternoon of the following day, twenty-one hours afterwards. The
   bargee had been away all the time.... At the locus in quo ... barges
   were being constantly "drilled" in and out. Certainly it was not
   beyond reasonable expectation that, with the inevitable haste and
   bustle, the work might not be done with adequate care. In such
   circumstances, we hold--and it is all that we do hold--that it was
   a fair requirement that the [barge owners] should have a bargee
   aboard (unless he had tome excuse for his absence), during the
   working hours of daylight.


Following from this, a bask presumption operates that losses will lie where they fall unless there are compelling economic reasons for their reallocation, such as a reduction in total accident costs and avoidance costs. This will only occur if it would have been cheaper for the defendant to have avoided the accident than to make good the expected losses. The accident cost is the magnitude of the loss if an accident occurs multiplied by the probability of the accident occurring. If the defendant were to compensate the plaintiff under any other circumstances, it would lead to an economically inefficient result. It would be a waste of societal resources to require the defendant to spend a greater sum to avoid one accident which results in losses of a lesser amount. The Learned Hand test encourages cost-rational actors to modify their behaviour by taking cost-justified precautions to avoid liability; see Watt v. Hertfordshire C.C., [1954] 1 W.L.R. 535. As such, carelessness per se does not result in actionable negligence and "it is only the requirement that the care be commensurate with the risk and danger"; see Nussbum v. Lacapo, 27 N.Y. 2d 311 at 319 (1970).

Two examples will suffice to illustrate the efficacy and desirability of this approach. In Hendricks v. Peabody Coat Co. 115 Ill. App. 2d 35 (1969), a child was gravely injured in an accident at the defendant's waterhole. The alleged negligence comprised the failure to prevent the use of the inherently dangerous waterhole by children known to play there. Damages to the child were assessed at $200,000, but the cost of fencing off the water bole would have been between $12,000 and $14,000. The defendant was found liable as the prevention "cost was slight compared to the risk to the children involved"; id. at 45. Also, in Bolton v. Stone, [1951] A.C. 850, plaintiff was struck by a ball hit out of the defendants' neighbouring cricket ground. There was a twelve foot perimeter fence and a ball had only been hit out of the ground six times in about thirty years. The House of Lords held that no liability had been incurred. The risk of injury was negligible and the cost of further precautions immense. As Lord Reid said:
   In the crowded conditions of modern life even the most careful
   person cannot avoid creating some risks and accepting others. What
   a man must not do, and what I think a careful man tries not to do
   it to create a risk which it substantial.... In my judgment, the
   test to be applied here is whether the risk of damage to a person
   on the road was so small that a reasonable man in the position of
   the appellants, considering the matter from the point of view of
   safety, would have thought it right to refrain from taking steps to
   prevent the danger.


An application of the Learned Hand test to the facts of the case at bar is instructive. Interestingly, Doctrin C.J. failed to mention some of the more pertinent facts. As we know, the loss to Derek was estimated at $1 million, but we also know from the evidence that Allan could have repaired his headlight for $250 and that there was a relatively significant possibility that an accident would have occurred, say .001 or a one in a thousand chance. Translating these into "economic" terms it means that, as the accident cost is $1,000 (.001 x $1 m.) and the avoidance costs were $250, Allan ought to be held liable. It would have been more efficient for Allan to take precautions than to have allowed the accident to occur. It is an economically efficient use of society's resources to require an expenditure of $250 to save a loss of $1,000. However, this finding docs not conclusively dispose of Allan's liability. As the objective of the law is to maximize overall social welfare, it is important to consider the economic position of Derek.

In crude and general terms, where the cost to the plaintiff of avoiding the accident is less than the cost to the defendant, the impetus for shifting the loss disappears. Indeed, it would be inefficient to do so. Consequently, the loss should lie where expected accident cost and the defendant's avoidance costs are less than the plaintiffs. Under such a straightforward regime, optimal safety would be achieved as each party would have a powerful incentive to minimize accident costs and maximize avoidance costs. In the present case, as Derek could have repaired his faulty brakes for $200 ($50 less than Allan's avoidance costs), the loss will remain with Derek and Allan will not be liable. Derek should have invested in the marginal safety costs as they were less than the marginal accident costs.

To interpret the Negligence Act as requiring a distribution of loss based on the proportionate fault of the parties, as Doctrin C.J. docs, undermines the clarity and deterrent effect of that law. Moreover, such an apportionment of liability would have inefficient consequences; the parties would be obliged to spend, jointly, more than an efficient amount on accident prevention. If Allan were fully liable for the accident, he would spend $250 to prevent it and Derek nothing. If Derek were completely debarred from recovery, he would spend $200 to prevent it and Allan nothing. Where each party is liable for fifty percent of the loss, that is $500 each in this case, Allan would have an incentive to spend $250 to avoid the accident and Derek would have an incentive to spend $200. This means that either a total of $450 will be invested in accident avoidance (an increase of $250 over the cheaper avoidance cost) or nothing will be invested, on the basis that, knowing the other to have an incentive to prevent the accident, each might make no investment at all. This would result in an avoidable cost of $800; that is, the loss less the cheaper avoidance cost. The attempt to achieve an efficient level of accidents and safety can only be undermined by liability rules which enjoin the judge to assess the individual and relative culpability of the parties' conduct in each case.

Finally, at least as regards the claim of Derek against Allan, a word ought to be said about causation. This issue has created considerable consternation for Doctrin C J., if not in this particular case, certainly in other cases. Also, Justice Wright, by making causation the fulcrum of liability, has had to grapple continually and inconclusively with this traditionally perplexing problem. All of this is unnecessary. Once the Learned Hand test is accepted as the basis for liability, the puzzles of causation can be solved with confidence. As Lord Reid observed, causation exists when the defendant's act increases the risk of injury to the plaintiff; see McGhee v. N.C.B., [1971] 1 W.L.R. 1. In that case, the fact that an employer's failure to provide showers added to the risk that the plaintiff's dermatitis might develop was held to be a sufficient ground for liability. In strict terms, therefore, the probability of harm in the Hand formula is the difference between the probability that the accident will occur if the defendant is negligent and if the defendant is careful. For instance, in Berry v. Sugar Notch Borough 191 Pa. 345 (1899), the fact that the plaintiff was speeding when his car was hit by a fallen tree during a violent windstorm was not a cause of the accident as the probability of the accident occurring was the same whether he drove slowly or speedily. In the present case, Allan's failure to repair his headlight undoubtedly increased the chance of an accident by at least .001, as did Derek's failure to fix his brakes. This latter fact seems to elude Wright J. and undermine his whole fragile "background theory of rights."

Another dilemma for my judicial colleagues has been the duty to rescue. The "efficiency" account of the law offers a convincing and moral response. As the courts are slowly beginning to accept, there is no significant or meaningful difference between misfeasance and nonfeasance; see Rowland v. Christian 69 Cal. 2d 108 (1968) and Spreacher v. Adamson Companies 30 Cal. 3d 358 (1981). Furthermore, the courts and legislatures seem to be committed to extending the liability of potential rescuers; see Farwell v. Keaton 396 Mich. 281 (1976) and Utah Code Ann. [section] 41-29 to 31 (1953). The natural and obvious next stop is to establish a general duty to rescue. This advance will reflect and respect the moral and economic underpinnings of the common law. It is both inefficient and immoral for a good swimmer to be free to ignore cries of a drowning person; see Gautret v. Egerton (1867), L.R. 2 CP. 371. In such circumstances, the costs to the swimmer are slight compared to the tragic and high costs of the drowning person. Nevertheless, it would be counter-productive to impose an obligation to rescue in all circumstances. It might, for instance, discourage people from becoming good swimmers or visiting the beach. Also, the incidence of rescue might decrease as such acts would no longer be seen as motivated by heroic altruism, but by fear of legal liability. However, as Martin could have at least telephoned for an ambulance at little or no cost and certainly at less cost than Allan, Derek or Charles, he must assume liability.

Doctrin C.J.'s refusal to establish such a duty of "easy rescue" is indicative of her pusillanimous approach to the judicial task. Further, she fails to appreciate the workings of the legislature. Legislative inaction does not necessarily mean a desire to retain the status quo, but can be interpreted as an indication that the legislature feds it is more appropriate for the courts to change the law, see Alvis v. Ribar 85 Ill. 2d 1 (1981). As regards the administrative problems, while they do present difficulties, they are of no greater magnitude than the initial question of liability under Doctrin C.J.'s approach. The most sensible distribution of losses is to have the original tortfeasor pay for the damages as if an early rescue had been effected and the "rescuer" pay for the remainder. In the present case, therefore, Martin would be responsible for the payment of a large portion of Derek's and Charles' damages.

Finally, Charles' claim for emotional distress can be easily and expeditiously disposed of. It is not so much a matter of liability as of proof; see Molien v. Kaiser Foundation Hospitals 27 Cal. 3d 916 (1980). Clearly it is difficult to imagine what cost-effective steps be could have taken to avoid injury. We can safely assume that they would outweigh the accident and avoidance costs of Allan, Derek or Martin. Liability, therefore, seems established. However, I do agree with Doctrin C.J. that we must be careful not to encourage or facilitate bogus claims. It is desirable that the law should march with medicine, "but in the rear and limping a little"; see Mount Isa Mines v. Pusey (1970), 125 C.L.R. 383 at 395. Nonetheless, in line with increasing medical sophistication, the courts have recently begun to recognize and accept broader recovery for nervous shock; see McLaughlin v. O'Brian, [1982] 2 W.L.R. 982 and Sinn v. Burd 486 Pa. 146 (1979). Accordingly, as cogent medical evidence was led, Charles ought to recover for his emotional distress.

In conclusion, therefore, I hold that Derek cannot recover against Allan, but that he ought to receive a significant amount of damages from Martin. Also Charles would be eligible for recovery of damages from Martin and Allan.

WRIGHT J.: As is often the case, I have the dubious distinction of following Justice Mill. It will come as little surprise to those who follow the proceedings of this Court that Justice Mill and I do not sec eye to eye on the proper basis for compensation for injuries. The central thrust of my rejection of his scheme of compensation is that such matters are intrinsically questions of the moral entitlement of individuals in particular circumstances and not impersonal measurements of social utility. As Cicero said, "the study of law must be derived from the depths of philosophy"; sec De Legibus i, 5. The resort to economic calculations does not take individuals seriously. Emphasis should be on individual liberty and not social welfare. When one person harms another, the injured has a moral right to demand and the injurer a moral duty to pay compensation.

The utilitarian ethic, espoused by Mill J., is incapable of furnishing sufficiently compelling reasons to deserve the allegiance and support of actual human beings. It demands that individuals' wants, desires and projects be submerged or discarded in the interest of utility maximization; they are to be treated as mere entries on the debit side of a society's moral accounts. Yet such tastes and preferences constitute an individual's moral integrity. Without these, individuals would cease to exist morally. Under a utilitarian regime, individual projects are simply resources for use in the general welfare and are liable to be acquired by others. Utilitarianism seeks to maximize benefits, regardless of their distribution throughout society. Individuals are robbed of any intrinsic merit or importance. Indeed, the sacrifice of individuals is not only permissible, but is often demanded and sanctioned.

The recent tragedy of some Pinto owners provides a topical and revealing illustration of the callousness of life under such an "efficient" regime; see Grimshaw v. Ford Motor Co. 174 Cal. Rptr. 348 (1981). A number of tort actions for death or injury had been commenced as a result of the explosion of Pinto fuel tanks in rear-end, low-velocity collisions. Ford carried out a cost-benefit analysis of whether to recall and reinforce the cars:

Benefit

Savings--180 burn deaths, 180 serious bum injuries, 2,100 burned vehicles. Unit Cost--$200,000 per death. $67.000 per injury. $700 per vehicle. Total Benefit--180 x ($200,000) 180 x ($67,000) 2100 x ($700)--$49.5 million.

Costs

Sales--11 million cars, 1.5 million tight trucks. Unit Cost--$11 per car, $11 per track. Total Cost--11.000,000 x ($11) 15.000,000 x ($11)--$137 million.

If I understand Mill J.'s theory of liability. Ford not only made a good commercial decision, but adopted a commendable course of action. To have recalled the cars would have been to squander social resources. That corporations rest their accident prevention and compensation business strategies on cost-benefit analysis is deplorable. For the courts to sanction and clothe such operations with moral legitimacy is intolerable.

Fortunately, the courts are not so irresponsible as Mill J. would have them. In Grimshaw, the plaintiff received a total of $74 million in damages. the courts openly condemned such reprehensible conduct. Importantly, the court applied the principles of strict liability rather than the negligence standard. This points up a fatal flaw in Mill J.'s arguments. Not only docs his liability scheme lead to a perverse decision, but it confounds his central claim that "economic efficiency" is the structural framework of the common law. On the contrary, it can be exposed as his own personal political preference and an unjust one at that.

Clearly, information costs undermine and reduce the potential internalization of accident costs. How are Derek and Allan to discover the avoidance costs of the other? His whole scheme assumes that everyone has information about everyone else's costs. Indeed, even Learned Hand J. conceded that "care is the only one ever susceptible of quantitative estimate, and often that is not"; sec Moisan v. Loftus 178 F. 2d 148 at 149 (1949). At best, all risk quantifications are more impressionistic than precise. Moreover, at least in a theoretical sense, all risk is necessarily foreseeable and, therefore, one can place no limits on liability. No greater a supporter of utilitarian arguments than Posner J. has opined, while speaking of assessment of damages, that "the exactness which economic analysis rigorously pursued appears to offer is, at least in the litigation setting, somewhat delusive"; see O'Shea v. Riverway Towing Co., 677 F. 2d 1194 at 1201 (1982). Indeed, the whole operation is artificial and counter-factual. The retrospective evaluation of the probability of something happening which has already happened is fanciful. The problem of applying the pseudo-scientific standard of "efficiency" to real-life problems is amply revealed in Union Oil Co. v. Oppen, 501 F. 2d 558 (1974). Furthermore, economic welfare is so protean a concept as to be able to justify as "efficient" a regime which determined beforehand the most likely cheapest cost-avoider in particular activities and held them strictly liable whatever the actual costs.

Also, although attitudes to risk in our society are not uniform. Mill J. seems to assume widespread risk-neutrality. But there exists an asymmetrical distribution of risk-aversion and risk-preference. For instance, large-scale manufacturers can afford to be relatively indifferent to risk as they can effectively spread and pass on anticipated losses. On the other hand, individuals tend to be risk-averse and are less able to plan for and off-set future losses. Mill J. seems to overlook entirely the maldistribution of both attitudes and exposure to risk. At the very least, the Learned Hand test would need substantial adaptation to affect these realities. Moreover, the very act of allocating and settling risk favours the risk averse. For instance, he offers no account of why we ought not to have a reverse Learned Hand test in which loss would be carried by the person who caused it unless there were sufficient reasons to shift it. As the Pinto fiasco demonstrates, this would effect a complete change in patterns of compensation. Furthermore, according to Mill J. the law provides incentives to individuals to organize their behaviour in accordance with the dictates of economic efficiency; they will be rational maximizers of their resources. In order to do this, of course, a major piece of information will be knowledge of what that law is. There is nothing to suggest that people do take the law into account in actually planning their daily lives, and what information does exist suggests that individuals do not consult legal materials before planning their activities.

A case that Mill J. relies on to support and substantiate his analysis, when read properly, exposes the disingenuousness of his approach. In Bolton v. Stone, [1951] A.C. 850, the plaintiff failed to recover after being hit by a cricket ball from the defendant's ground because the risk of such an accident was not sufficiently substantial. However, as the later case of Miller v. Jackson, [1977] Q.B. 966, makes clear, there is a hidden ordering of the social utility of the respective activities. Cricket occupies a special place in the hearts of Englishmen. It is not so clear that the courts would have reacted similarly if the cricket ground had been a water sports centre; see Kennaway v. Thompson, [1981] Q.B. 88. Under Mill J.'s scheme, all activities are accorded equal significance; the playing of cricket is considered at least as important as the right of individuals not to be injured.

There arises from these difficulties a conclusion that strikes at the root of any utilitarian argument. Although its rationale is to enhance and promote individual freedom, its operation reduces and neglects that liberty, forcing individuals to concern themselves with the projects and plans of others. Individuals deserve and merit respect simply as individuals. They are autonomous: they possess certain rights that cannot be overridden by appeals to general utility. Rights are trumps over social welfare. Individuals are not to be conceived of as a means by which to maximize social utility, but instead are to be treated as ends in themselves. What is needed is not a maximizing and collective principle, but a distributive and individualizing principle. The law must control the market, not be controlled by it. Individuals count. For Mill J., individuals only provide the raw materials for measuring the general welfare. Although rather overstatedly, Lord Scarman in McLaughlin v. O'Brian, [1982] 2 W.L.R. 982 at 987, emphasizes the priority of principle over policy:
   The distinguishing feature of the common law is this judicial
   development and formation of principle. Policy considerations will
   have to be weighed: but the objective of the judges b the
   formulation of principle. And, if principle inexorably requires a
   decision which entails a degree of policy risk, the court's
   function is to adjudicate according to principle, leaving policy
   curtailment to the judgment of Parliament. Here lies the true role
   of the two law-making institutions in our constitution. By
   concentrating on principle the judges can keep the common law
   alive, flexible and consistent; and can keep the legal system clear
   of policy problems which neither they, nor the forensic process
   which it is their duty to operate, are equipped to resolve. If
   principle leads to results which are thought to be socially
   unacceptable, Parliament can legislate to draw a line or map out a
   new path.


The imposition of legal liability ought to depend on moral entitlements as determined by causal enquiries. "Efficiency" is to be deplored for its casual nihilism. A deep sense of morality and rights pervades the common law. The Learned Hand test is, at best, a crude and misguided device to compromise and concretize individual rights. People are completely free to act, except when they cause harm to others. This moral principle is the driving force behind the common law and any system of tort must respect and implement such a moral notion. As Lord Dunedin said, liability is "to be determined by common-sense principles. What is the cause of the loss?"; Leyland Shipping Co. v. Norwich Universal Fire Insurance Co., [1918] A.C. 350.

It would, of course, be ridiculous to pretend that negligence did not once form the backbone of accident liability. Yet, over recent decades, there has been a gradual movement from negligence to strict liability. The negligence principle was firmly established in MacPherson v. Buick Motor Co., 217 N.Y. 330 (1918), notwithstanding decisions like Rylands v. Fletcher (1868). L.R. 3 H.L. 330. Strict liability began to reassert itself in Escola v. Coca Cola Bottling Co., 150 P. 2d 436 (1944). On holding that a soda bottle manufacturer was absolutely liable for injury caused by a defective product, Traynor J., id. at 440-41, articulated the rationale for strict liability:
   Even if there is no negligence, however, public policy demands that
   responsibility be fixed wherever it will most effectively reduce
   the hazards to life and health inherent in defective products that
   reach the market. It is evident that the manufacturer can
   anticipate tome hazards and guard against the recurrence of others
   as the public cannot. Those who suffer injury from defective
   products are unprepared to meet Ha consequences. The cost of an
   injury and the loss of time or health may be an overwhelming
   misfortune to the person injured, and a needless one, for the risk
   can be insured by the manufacturer and distributed among the public
   as a cost of doing business.... Against such a risk [of injury from
   defective products whether negligently manufactured or not] there
   should be general and constant protection and the manufacturer it
   best situated to afford such protection.


Since that seminal judgment, strict liability has begun to colonize and control accident liability: see Greenman v. Yuba Power Products, 377 P. 2d 897 (1963), and Shaffer v. Victoria Station Inc., 588 P. 2d 233 (1978). Those cases which speak in the rhetoric of negligence achieve results more consistent with the dictates of strict liability. For instance, in Hughes v. Lord Advocate, [1963] A.C. 837, the defendants were liable for injuries caused by an explosion which the court accepted to be "so unlikely as not to be foreseeable." Also, in the Australian case of Cuckow v. Polyester Products (1970), 19 F.L.R. 122, the defendants could not escape liability for the death of the plaintiff by smoke-inhalation as a result of "fire-resistant" insulation material erupting in tremendous smoke when it "set alight." Throughout the law of tort, there has been a subtle, but profound shift in the structural foundations of the law. To recognize that change is to take a step much smaller and less controversial than that in MacPherson supra, or Donoghue v. Stevenson, [1932] A.C. S62.

The political morality that explains and shows the doctrinal materials in their best light is one centred upon the right of individuals to be secure against non-consensual invasions of their personal integrity. Fault amounts to an interference per se. The focus is rightly placed upon the activity rather than the defendant's conduct: the what happened is more important than the how or why. Within such a regime, causation becomes not a basis for liability but the basis. It is the fulcrum of liability. Not only does that make strong ethical sense, but accords with common sense and intuitive notions of fairness. While this might give rise to the occasional penumbral puzzle, it is clear that Allan was the cause of the accident in the present case. But for Allan's failure to repair his headlight, the accident would not have occurred.

No doubt, Doctrin C.J. and Mill J. will complain strenuously that this ignores Derek's contribution to his own misfortune. Yet it is surely an incontrovertible rule of the common law that the defendants take their victims as they find them; see Smith v. Leech Brain & Co., [1962] 2 Q.B. 40S and Watts v. Rake (1960), 108 C.L.R. 158. While the condition of Derek's car may well have extended the causal chain, it docs not alter the primary fact that Allan was responsible for setting the chain in motion. Such a determination is as simple as it is fair. Further, it avoids another doctrinal swamp into which Doctrin C.J. and Mill J. have allowed themselves to be lured; see Daly v. General Motors Corp., 20 Cal. 3d 725 (1978) and Overseas Tankship (U.K.) Ltd. v. Morts Dock and Eng. Co. (The Wagon Mound), [1961] A.C. 388. Also, the acceptance of a defence of contributory negligence would admit through the back door the very same utilitarian constraints on individual rights that were refused entry at the front. To use Derek's conduct to off-set Allan's liability is to set in motion a process that would ultimately lead to an erosion of Derek's rights. Although a sleeping passenger is more susceptible to serious injury than an alert one, it seems ludicrous to reduce the defendant's liability on this account; see Sloan v. Flack 150 So. 2d 640 (1963).

Both Derek's and Charles' injuries were caused by Allan's activities; if he had not acted as he did, there would have been no harm. The fact that Charles' injuries are emotional rather than physical is irrelevant. Once the court is satisfied, as Burke J. in Battalla v. State of New York, 10 N.Y. 2d 237 (1960), put it, of "the quality and genuineness of proof," there need be no further argument. It is illogical and unfair to hinge liability, as Doctrin C.J. seems to do, on whether the damage suffered is physical or emotional.

The refusal of the common law to recognize a general duty to rescue supports many of the arguments used to justify a regime of strict liability. Moreover, it offers further illustration of the perversity and uncertainty of Mill J.'s "efficiency thesis." As Jessup J. succinctly expressed it, "no principle is BMN deeply rooted in the common law than that there is no duty to take positive action in aid of another no matter how helpless or perilous his position is"; see Horsley v. MacLaren, [1970] O.R. 487. The imposition of a duty of care has depended upon the existence of some special relationship or the creation of risk; see Racine v. C.N.R, [1923] 1 D.L.R. 924 and South v. National Railroad Passenger Corp., 290 N.W. 2d 819 (1980). In other circumstances, there is no promise or commitment to act and, therefore, no expectation of rescue. To require gratuitous acts of rescue seriously infringes individual freedom. A similar principle animates other areas of the law. In contract, there is no general duty to co-operate, unless it is necessary in order to effectuate the exchange; see Seaman's Direct Buying Service v. Standard Oil, 181 Cal. Rptr. 126 (1981). In a very real sense, the "rescuer" ought not to be liable as she did not cause the plaintiffs dilemma or damages.

A glance at the solution offered by Mill J. betrays the muddled and dangerous nature of his thinking. In general, the imposition of a duty to rescue underlines the fact that a person's own welfare is of no special interest; it must be discarded for the social good. The pauper might have to sacrifice his life to rescue the president. However, in the converse situation, the president might be acting irresponsibly to attempt a rescue of the pauper. Apart from its obvious iniquity, such a rule is unworkable as the rescuer must first ascertain the "worth" of the plaintiff before being able to ascertain whether there is a social obligation to perform or refrain from a rescue. Further, a rescue rule is a form of conscription into social service; the rescuer becomes an insurer for the fool-hardy, risk-preferring or powerful. An obliged rescue is tantamount to a forced exchange exacted by government. It operates as a tax and unjustly curtails individual liberty. Whereas a rescue rule leads to unjust results and renders it uncertain where liberty ends and obligation begins, a no-rescue rule is consistent with both moral and economic principle. In the present case, Martin would be free to engage in any rescue attempt he chose, but he would not be obliged to attempt any rescue. At least in my conclusion, I fully agree with Doctrin C.J. on this issue. However, I disassociate myself entirely from Mill J.'s decision. He has sown the wind and reaped the whirlwind. He has managed to contrive a decision that places almost exclusive responsibility upon Martin for the losses to Derek and Charles. The logic or fairness of such a distribution of liability completely eludes and defeats me.

However, I would like to conclude my judgment with some general remarks on why strict liability is to be preferred to the introduction of some no-fault compensation scheme, so ably and fondly espoused by Mr. Justice Prudential. I believe that strict liability comes out on top in any comparison based on the two major objectives of any scheme of compensation, its effectiveness in reducing accidents and its administrative costs.

As Mill J. states, any system of accident liability must create incentives that minimize accident costs and avoidance costs. In general, as everyone is a potential plaintiff or defendant, a move from one scheme to another will tend to shuffle incentives around rather than reduce the overall level of accidents. What a no-fault system loses in incentives can be made up for by the rigorous enforcement of a robust criminal law. But the ideal world is not the practical world. Unless a change is made in the criminal law and its enforcement, the introduction of a no-fault system will actually reduce the incentives. Although other legal systems, such as Sweden's, may manage to enforce vigorously and effectively the criminal law, Canengus has neither the appropriate substantive criminal law nor, it seems, the will to enforce it fully. Accordingly, a de-centralized system of private actions, based on strict liability, provides the most self-contained and realistic method to maintain and enforce the norms of optimal behaviour.

Prudential J. astutely notes that the costs of administering any tort system are considerable. Certainly under a negligence regime as proposed by Doctrin C J. and Mill J., the uncertainty of the standard generates immense costs; see, for example, Hammontree v. Jenner, 97 Cal. Rptr. 739 (1971). A scheme of strict liability is not so vulnerable. Its focus of inquiry is narrow and clear; therefore, the frequency of litigation and its cost will be reduced. Moreover, if the present litigation process is streamlined, much of the cost of the reduced litigation can be pared down. Finally, under any scheme, the cost of hiring a physician to determine the actual damages in each individual case remains high.

In conclusion, therefore, I hold that Allan is responsible to Derek and Charles for the full extent of their damages. Martin is relieved of any liability.

PRUDENTIAL J.: The late F.R. Leavis wrote in his New Bearings in English Poetry (1932) at 17, that:
   [P]oetry can communicate the actual quality of experience with a
   sublety and precision unapproachable by any other means. Bat if the
   poetry and the intelligence of the Age lose touch with each other,
   poetry will cease to matter much and the age will be lacking in
   finer awareness.


I have read in draft the opinions delivered by my colleagues. Whereas Mill J., Doctrin C.J. and Wright J. allow intellect to operate unmitigated by poetry, Lefft J. indulges in a poetry that drifts free from intellect. My own solution to this appeal lies in forging a rapprochement between the actual quality of experience (partially, but cynically demonstrated by Justice Lefft) and the intellectual fervour of Justice Wright. It will become dear that I reject the sentiments espoused by Doctrin C.J. whose moral inquiry into the conduct of the parties distorts the real task with which this Court should be concerned. It is the plight of the injured plaintiff and not the conduct of the defendants that deserves our attention. The pseudo-intellectual rigour of Mill J. and his indifference to the fate of individuals in the march to improved social welfare fills me with despondency and horror.

On its face, the judgment of Wright J. has intuitive appeal; it seems ethical, practical and efficient. Yet, his central allocative device of causation is thoroughly unequal to the massive task be sets it. In practice, it amounts to a crude and cumbersome process of accident compensation. Justice Wright still lives in the Platonic realm of abstract justice. He is not only naive, but dangerous. Common sense is a notoriously unreliable source of guidance for practical affairs. In the pluralistic society of Canengus, its identity is vague and indeterminate, if not by design at least by inclination. Causation is a labyrinth for which Wright J. offers no realistic through-route. At bottom, he has to smuggle in basic value judgments as formal causal criteria. Recall the memorable words of Andrews J. in Palsgraf v. Long Island Rly. Co., 248 N.Y. 339 at 352 (1928):
   Any philosophical doctrine of causation does not help us. A boy
   throws a stone into a pond. The ripples spread. The water level
   rises. The history of that pond is altered to all eternity: it will
   be altered by other causes also. Yet it will be forever the
   resultant of all causes combined. Each one will have an influence.
   How great only omniscience can say. You may speak of a chain, or,
   if you please, a net. An analogy is of little aid. Each cause
   brings about future events. Without each the future would not be
   the same. Each is proximate in the sense it is essential. But that
   is not what we mean by the word. Nor on the other band do we mean
   sole cause. There is no such thing....

      As we have said, we cannot trace the effect of an act to the end,
   if end there is. Again, however, we may trace it part of the way. A
   murder at Sarajevo may be the necessary antecedent to an
   assassination in London twenty years hence. An overturned lantern
   may burn all Chicago. We may follow the fire from the shed to the
   last building. We rightly say the lire started by the lantern
   caused its destruction.

      A cause, but not the proximate cause. What we do mean by the word
   "proximate" b that, because of convenience, of public policy, of a
   rough sense of justice, the law arbitrarily declines to trace a
   series of events beyond a certain point. This is not logic. It is
   practical politics....


Causation is and must always remain a choice; sec Kinderavich v. Palmer 127 Conn. 85 (1940). If we are to abide by general rules, we must be prepared for arbitrary results. Each accident is unique and demands a unique causal inquiry--"cause and effect find their beginning and end in the limitless and unworkable ..., [h]ence arbitrary limits have been set"; see Atlantic Coastline Rly Co. v. Daniels 8 Ga. App. 775 (1911). Indeed, in the present case, which Wright J. acknowledges as simple and straightforward, it is unclear to me why "common sense" necessarily burdens Allan with the whole costs of the accident. Surely Derek was an "active" factor in the accident and Martin might have been. Within any compensation scheme based on fault, the conundrum of causation represents an insuperable barrier to the achievement of personal or social justice. Only a shift to a no-fault regime can overcome this impasse.

As for a "negligence" regime, adhered to by Doctrin C.J. and championed by Mill J., it is unclear why rules laid down in the days of the horse and carriage should continue to govern us today. Having witnessed a phenomenal increase in the scale and gravity of destruction and havoc which modern technology can wreak. Baron Bramwell's decision "to put up with such mischief as reasonable care on the part of others cannot avoid" is no longer acceptable; see Holmes v. Mather (1875), L.R. 10 Ex. 261 at 267. At the end of the second millenium. the victims of society's collective progress deserve more protection and compassion. The time has come in which obeisance to the benefits which the internal combustion engine have brought has to be accompanied by a recognition that we are also, if not rather, the children of a lesser god. Our society is not that which is dominated by subservience to either a thoroughgoing holistic or atomistic ideology. The law of torts may indeed be the paradigmatic law of the mixed society. It is our responsibility as Justices to ensure that the balance is correct.

The mixture as perceived by Beveridge in 1942 (Report on Social Insurance and Allied Services (Cmnd. 6904)) is in need of titration. We should add a touch of concern and compassion for our fellow human beings to the tort system and see what result is produced. But the hotch-potch of add-on or modified plans used to bolster up the private tort action needs comprehensive reconsideration and amendment. Such makeshift tactics can no longer be regarded as adequate. I cannot, of course, hope to canvass in the space of this short opinion all the elements of a wholesale replacement. My judgment today should be read as though a set of guidelines for a long overdue experiment in social reform.

As long ago as 1932, when other jurisdictions were remodelling their common law of tort around snails in bottles of ginger beer and exploding parcels, the Columbia Committee to Study Compensation for Automobile Accidents was completing its study which was to recommend that compensation for motor accident victims should be removed from the ambit of tort liability altogether. When the initiative was boldly taken to try to introduce a no-fault scheme in England in 1934, through the Road Traffic (Compensation for Accidents) Bill, the speeches that defeated that legislation might well and appropriately have spoken to the contemporaneous Lotteries Bill before the House. As Donoghue v. Stevenson wound its way to the House of Lords' judicial committee, so the Jand'Heur case was heading towards the plenary session of the Cour de Cassation, where they confirmed the impetus of the movement which bad given rise to the prescription of strict liability in accident cases.

We now have an overwhelming body of statistical data that catalogues in precise detail the litigation lottery. The cost of accidents is astronomical. In Canada, for instance, out of a population of 25 million, 3.5 million sustain product-related injuries annually, 4,000 are killed and 11,000 permanently disabled. This amounts to losses of over 52 billion in product-related injuries alone. Of these victims, forty-five percent never recover anything. Further, only one percent reach the courts and most of those are settled on the courthouse steps. Over fifty percent of the compensation ultimately paid out is lost in administering and financing its recovery. These statistics are repeated in every common law jurisdiction, but, revealing as they are, they are the more disturbing when it is remembered that "negligence" is a feature endemic to modern life. Strong evidence suggests that a "good driver" makes about nine mistakes every five minutes; see 1 Royal Commission on Civil Liability for Compensation for Personal Injury (1978) at 210. Against such statistics, the efficacy of tort law as a compensatory or deterrent device is illusory.

Dissatisfaction with existing tort law is now a universal phenomenon. Committees, commissions, courts and commentators have railed for long enough. Unhappily, this court does not today speak with one voice. I refrain today from moving in advance of the legislature only after long, hard and sustained reflection. I have kept in mind what was said in the related context of vicarious liability by Lord Wilberforce in Launchbury v. Morgans, 11973, A.C. 127 at 136:
   I do not know on what principle year Lordships acting judicially
   can prefer one of these systems to the others or on what basis any
   one can be formulated with sufficient precision or its exceptions
   defined. The choice is one of social policy.... Whatever may have
   been the situation ... in the youth of the motor car, it is very
   different now, when millions of people drive for a vast variety of
   purposes and when there b in existence a complicated legislative
   structure as to insurance--who must take it out, what risks it must
   cover, who has the right to sue for the sum assured. Liability and
   insurance are so intermixed that judicially to alter the basis of
   liability without adequate knowledge (which we do not have the
   means to obtain) as to the impact this might make on the insurance
   system would be dangerous, and in my opinion, irresponsible.


Today, I hesitate to remind the legislature that we are all better informed. The evidence that I intend to review is clear. Mill J. is correct to remind us that the judicial application of existing rules reaffirms and enforces previous policy choices. My view is that these old choices are no longer sufficient, adequate or desirable for contemporary society. As has been frequently said, the life blood of the common law is not logic, but common sense. However, it can also be its death-knell. To plod along as we have done, rather like the horse and carriage, treating automobile accidents within the same clumsy legal parameters as those of the nineteenth century is to fail to keep the law up to date. Yet, as if this tardiness is not enough, many suggest that only the legislature can step in. This is impractical and unnecessary. The difficulties of legislative action, of weighing and balancing competing political forces, is so great that even urgent law reform may be frustrated. Throughout our legal system, legislation overtakes and overwhelms the common law. For many, this may seem undesirable. But I think that this development brings with it hidden dangers and limitations of its own.

The age of statutes is upon us. The judiciary must respond, or at least belatedly acknowledge this shift. This does not mean a passive genuflexion to legislative wisdom. Judges must become constitutional partners in keeping the law in tune with contemporary society. The judicial timidity evidenced in cases like Maki v. Frelk, 40 Ill. 2d 193 (1968) does not benefit our democratic responsibilities. The common law must grow and develop with society. As the court concluded in Alvis v. Ribar 85 Ill. 2d 1 (1981):
   We believe that the proper relationship between the legislature and
   the court n one of cooperation and assistance in examining and
   changing the common law to conform with the ever-changing demands
   of the community. There are, however, times when there exists a
   mutual state of inaction in which the court awaits action by the
   legislature and the legislature awaits guidance from the court.
   Such a stalemate exists and the legislature has, for whatever
   reason, failed to act to remedy a gap in the common law that
   results in injustice, it is the imperative duty of the court to
   repair that injustice and reform the law to be responsive to the
   demands of society.


With their training and experience, the judiciary as a body may properly be entrusted with this democratic responsibility. It is not the responsibility, but an important one to prompt and, ultimately, to cajole the legislature to action. Of course, greater power correctly lies with the legislature than with the judiciary. But this does not mean that the legislature has exclusive power or that the judiciary is relegated to the role of constitutional ciphers.

My judgment today is a clarion call for action. It may give the legislature the opportunity for a second look, not a passive glance, but an active investigation. Failing this response, under our democratic duty to keep the common law alive, I propose that this court snatch accident compensation from under the crushing weight of the technological machine and establish it firmly in the driving seat of the Law. Canengus must embrace and implement a thoroughgoing and comprehensive scheme of accident compensation.

The implementation of such a scheme is not a revolutionary or radical step. It simply approves of and makes universal a mode of relief that underpins the real world of accidents. Through a combination of compulsory and voluntary insurance schemes, society has generally considered it appropriate to spread the economic consequences of accidents over the whole community. Within such practices the search for negligent or strictly liable defendants is fictional and is really a weak attempt to control the aggregate sum payable by society. If loss-distribution is our intended goal, a patchwork of a tort system and private insurance is a less than efficient way to proceed. Beyond a certain point, the two are incompatible and hostile. Indeed the resort to insurance undermines the "rationality" assumptions of Doctrin C.J., Mill J. and Wright J. People lack sufficient ability to make rational judgments about accident prevention. Therefore, they insure if risk-adverse. Behaviour in the face of danger is not motivated by concern for personal safety, but for the financial consequences. Moreover, to seek, as Mill J. might, to explain differences in the distribution of accident insurance purchased as a function of individually optimal decisions is absurd. It reflects and corresponds to the maldistribution of information and resources. My plea is to introduce minimal levels of compensation below which we do not consider it morally justifiable to allow anybody to fall. Private insurance can still exist and prosper. Market forces can provide a cushion for the wealthy who fall heavily or awkwardly on the state safety-net.

To introduce such a scheme of comprehensive accident compensation, allied to a programme for the alleviation of the fiscal consequences of disease is a tall order for the Exchequer. But we would be less than candid if we failed to recognize, as Justice Lefft does, that the notion of communal responsibility is a two-edged sword. Not only does the community have a duty to safeguard its members, but it must do so in a way that best suits the community's interest. If the population is daily subjected to the dangers of modern technological life, it follows that its productive capacity is constantly at risk. To be sure, this requires me to equate the individual human being to a societal asset. But, because society views individuals as producing entities, any injury to a human being is a loss to society. The loss occasioned to the injured person cannot be recouped; it is a net social loss. Once it is conceded that this loss can never be made good, the problem becomes whether any one person should be required to bear the full impact of the loss. For instance, Doctrin C.J. perceives the harm suffered in a one dimensional fashion; the harm inflicted is solely on Derek. But it seems to me that where a person suffers injury, so does the economy. That amounts to a real social cost. Thus, the community has not only a clear duty, but a vested interest in urging forward the physical and fiscal rehabilitation of every person whose activities bear upon the general welfare. That is what maximizing social welfare truly means; it is not to be hedged in some limited or constrained utilitarian fashion nor swamped by some hedonistic fervour, but is a programme that eschews slogans and tokenism and encourages care and responsibility. If the net result of this proposal is that some minor injuries have to forego some compensation so that the most serious, lasting and debilitating injuries are fully compensated (the complete converse of the present system), if it means that there are those whose pre-accident earnings cannot be fully reimbursed from the state fund and they must forego the last few drops in order to allow the blood to flow more freely to all parts of the body politic, then so be it. There are no simple or perfect solutions, only difficult choices.

The most persistent argument made against "faultless" insurance schemes is that the deterrent effect of tort law is lost. I have never been persuaded of the efficacy of this deterrent function. For the law to be an effective deterrent, there must exist a correlation between the sanction and an individual's behaviour. Yet, while there may be a massive award of damages based on a minor deviation from the behavioural norm, there will be no liability, no matter how heinous the breach, so long as no one is injured. And, the prevalence of insurance as a means to spread the loss substantially diminishes the impact of tort law. Insurance, like an increase in oil prices, is merely another cost of doing business or owning a car. Allan knows this well. Furthermore, the existence of criminal regulation undermines the deterrence argument. Why would overworked legislators deliberate over and introduce manifold regulations to control careless conduct, if this merely duplicated results and outcomes already operational under a tort system? The probability of criminal sanction better encourages pre-accident safety measures than possible post-accident liability in tort.

The vision of social justice I have argued for will offend my colleagues. Mill J. will recall those "eccentric principles of socialist philanthropy" which so fatally offended his predecessors sixty years ago; Roberts v. Hopwood, [1952] A.C. 578 at 594. Lefft J. will be dismayed because an insurance scheme requires society, on behalf of injured persons, to enter the marketplace of compensation. But its strengths arc that it makes some effort to recognize the levelling quality of injury and death. Within the structure of administrative bureaucracy, it seems to restore to the law of tort its paradigm nature in a mixed society and not, as would the despair of Justice Lefft and the agnosticism of Justice Mill, destroy it. They are equally in danger of losing sight of the mixed society which demands a mixed law. But, as I have said before, the mixture needs to be constantly checked and reviewed. Our natural and proper feelings of compassion for injured persons must not lead to a state guarantee against misfortunes of all or any kind which might bankrupt the strained resources of the Exchequer. Nor must our concern for fiscal logic neuter our compassionate response to injury. In a mixed society the lodestar of any such compensation scheme must be incentive to avoid injury, the natural descendent of the ethic which guided our troubled passage through the turbulent seas of the industrial revolution. We are too well schooled in that spirit for the Utopian schemes envisaged by Justice Lefft. We must take into the post-industrial age some incarnation of essential principles which have served us well, but whose present forms have now outlived their usefulness.

There must be an incentive to recovery offered by effective rehabilitation. To encourage a return to productive and gainful employment, there must exist a fair margin of return on independent effort. This incentive must not itself be handicapped by the current favour for levelling state benefits or begrudging or denying effective help for long-term incapacity. Real compensation must be the goal. Pull and adequate financial assistance, carefully tailored to the severity of injury, and to the needs of all people at whatever level of employment and every normal level of income, must be our aim. The result will be a system that will be able to provide a direction, an objective for individuals that will divert and subvert charges of state paternalism.

Naturally, any change in our present compensation schemes will depend ultimately on two things which have been implicit throughout my judgment: the cost of compensation to the community and its willingness to pay that price. These draft guiding principles are offered as a foundation for building such a scheme. First, it must be regarded and accepted as a matter of community-wide obligation that the community itself must bear responsibility for protecting all citizens who suffer sudden, individual, personal loss which impairs or interrupts their ability to participate fully in the life of the community. Of course, there would ultimately be no room for distinctions based upon accidental injuries as opposed to "natural" diseases; such categorization depends as much upon contemporary social mores as upon some rational, self-evident scheme. Radicals will no doubt object to this apparent relegation of the individual to a productive unit of society. But, no less than Mill J., that would seem to sacrifice the individual to the intellect. We all persist in following community activities; done for the benefits of all. Each year these activities, whether they be transport, manufacturing, leisure or whatever, exact a predictable and almost inevitable toll. Thus, we should all share in sustaining and nurturing those who become the random, but statistically necessary victims of modern life. That is the second face of community responsibility. From this flows the second guiding principle.

The coverage which such a scheme offers must be properly comprehensive. Injury, not cause, is at issue. I recognize that this raises in the most acute manner possible what is to be counted as an injury. Objectors will point to the potentially arbitrary lines which this formulation might require. I am sensitive to those criticisms, but they do not, for me, carry the day. These critics are the intellectual Luddites of the litigation system. Their objections are based either, in good faith, on the redistributive questions which accident compensation throws up or, more mischievously, on a secret desire to return to the formalities of a system of pleading which relied on trespass to the satisfaction only of lawyers and to the glorification of none. Both are mistaken. A comprehensive accident insurance scheme is such an enormous leap forward from our present haphazard, arbitrary and capricious tort scheme that it cannot and ought not to be jeopardized by the sensibilities of the radical reformers or the conservative critics.

Finally, comprehensive coverage is meaningless unless it provides real compensation. We have to look closely and carefully at how we define "need" in our system. Clearly, not every imaginable loss is one which ought to or need be compensated. However, we must recognize that physical injury or death has economic consequences above and beyond the injury itself. Commitments which most households accept today as regular and justifiable may have been considered luxuries in the recent past. It seems entirely appropriate that compensation keeps pace with the increasing affluence we enjoy today; a realistic assessment of compensation should take this into account. Justice, unless humanely and speedily rendered, is just a hollow tag if it fails to deliver people from the total consequences of misfortune following accidental injury.

Why have such schemes not been introduced if they are so desirable and workable? The answer is simple: there are no votes in accident compensation. Legislators daily make rules with little expectation that they will have any substantial Impact upon people's lives; they are directed towards the winning of the next election. Accident victims are a diffuse class and lack an effective lobbying status. As has been astutely noted, "the average man is not greatly stimulated by potential difficulties: until they actually beset him he remains an optimist and a sturdy supporter of what is familiar"; sec Compensation for Personal Injury In New Zealand (1967) s. 14. Like the New Zealanders, I believe the people of Canengus have begun to realize that accidents regularly befalling large numbers of their fellow citizens are not so much duo to human error as to the complicated and uneasy environment in which we live. It is the risk of social progress; its cost ought to be shared among society. As Judge Fuchs said in Montgomery v. Daniels 38 N.Y. 41 (1975):
   I believe that the concept that the individual it the basic and
   ultimate unit in society mutt be supported by recognition of the
   value of one's physical, mental and emotional integrity, including
   freedom from pain and suffering and the ability to live an
   uncrippled life. the automobile, a modern bane and boon, daily
   threatens that integrity for millions of people.


It is now long past the time when our legal system ought to meet this challenge squarely.

There is yet the moral and legal dilemma of the rescue situation. Of course, the introduction of the proposed scheme ameliorates the situation of those injured. Yet it does not offer an exclusive solution to accidents. Our concern must be not only to compensate those injured, but to reduce the incidence of injury. The attempt to increase safety and reinforce moral standards of care through the tort system has been an unmitigated disaster. The appropriate device for such control is the criminal law. It focuses on and punishes behaviour that is morally culpable. The offences of careless driving and unhygienic preparation of food are obvious illustrations. Similarly, the failure to effect an easy rescue can be dealt with in this way. As in Vermont and Czechoslovakia, it ought to be a criminal offence to fail to rescue someone who is in imminent and serious danger when there is no serious danger to the potential rescuer; see Vt. Stat. Ann. tit. 12, [section] 519 (supp. 1971) and C.S.R. 1964, Oblansky Zakonik. ss. 415-19.

Not only is criminal law a more efficacious deterrent than tort law, but it encourages us to take a more caring, less alienated attitude towards our fellow citizens. As such, it is a natural corollary to a comprehensive insurance scheme. Anyone who is injured in a rescue attempt will automatically be compensated. Also, it seems entirely proper, and accords with common law morality, that the "rescuer" ought to be criminally liable whether or not the victim is injured as long as there existed a serious possibility of injury. Finally, we should not underestimate the moralizing power of the criminal law. I aw must not only keep up with morality, but often is itself looked to for moral guidance by the less sure or weaker among us.

My support for the early implementation of a new compensation scheme has created a dilemma for me in disposing of the present case. Do I act today as a legislator and introduce such a scheme or give the legislators one last chance? Reluctantly, I have decided to stay my hand. This is not for fear of upsetting the insurance markets or because all existing mechanisms for compensation would grind to a halt. Rather, out of deep respect for our constitutional traditions, I defer to the legislators this one more time. Accordingly, I will uphold the decision of the lower court. The patent absurdity and inequity of that result is not lost on me. I can only hope it is not lost on others too.

LEFFT J.: The writing of this judgment has been an occasion of very mixed blessings. It is very sad in that it is the last judgment I ever intend to give. It concludes a legal career that I now view as being an embarrassing and inexcusable dissipation of energy and time. Yet it is an occasion of happiness for me as well. I have finally realized and come to accept the true nature of the enterprise that I have participated in as lawyer and judge for the past forty years. I have moved from the shadows into the light. I have stepped through the veil of my ideological ignorance and seen the existing world for what it is. What I see is extremely horrible, depressing and unnerving. Yet the fact that I now sec things as they really are is cause for some hope. It is a small, yet important first step. The circumstances of my "conversion" may provide some explanation and offer some encouragement to others.

While strolling through Memorial Park recently, my attention was caught by a young group of enthusiasts, railing against our present society. They were distributing leaflets. Out of idle curiosity, I went over to listen and to accept a leaflet. The pamphlet contained a battery of staggering statistics and information: every minute the world spends $1.3 million on military objectives and thirty children die through lack of food or health care; one nuclear submarine costs more than the annual education budget of twenty-three developing countries with 160 million school children; the United States government paid farmers to take over forty million hectares of land out of production while 4S0 million people in the world starve. These figures went on in nauseating detail. As I left the Park, I walked through a run-down part of Ottlonwash. Ragged children played in the dirty streets asking me for money as I passed. Families lived in dilapidated buildings. People lined up at hostels for food and shelter. Deprivation and degradation were everywhere. The contrast with my own pleasant neighbourhood was stark and sickening.

That night and over the following days, I agonized over that experience. Whichever way I looked at it, I could not avoid the conclusion that I had previously rejected, but always feared; that the legal process is a major force in creating, sustaining and justifying our social situation. As organs of state power, the courts must accept their share of responsibility for the plight of the homeless and the poor. Judges hold in place the deep structure of society that sacrifices people for profits. The vast paraphernalia of legal rights and entitlements amounts to nothing more than a sugar coating on a bitter pill. Although suffering and domination are rife within society, the ideal of governance according to the rule of law masks these offensive facts. Far from being a vehicle for social justice, the law represents a formidable barrier to significant social change.

The ideological potency of the law is subtle and profound. It contrives to be both friend and enemy. It persuades us that contemporary life is almost rational and just. Although there are blemishes and sores, this is the best there is. It is the natural and, therefore, inevitable form of social life. In the constant clash between individual interests and communal concerns, the law offers itself as a real and genuine compromise. The judicial process is portrayed as an objective and non-arbitrary enterprise, distinct from the naked power play of party politics. The judge becomes a passive conduit of an elusive rationality. A complex scheme of legal rights and entitlements controls the interaction of citizens; each is considered a rational and equal actor in the economic and moral order. The law claims to be neutral between individuals who self-interestedly determine their own social universe. Yet this simplistic process hides substantial and manifest injustice. the legal process places society in a condition of bondage. It is a powerful instrument of mystification that maintains the status quo; it operates so as to convince the oppressed and the oppressors of the relative freedom and inevitability of modern life. It breeds a false sense of moral security and political resignation. Yet its continued success depends on our acquiescence. Like Canengusian Railways, the legal and political process is sustained in bankruptcy by a sinister combination of naivety, self-interest and fear of alternatives; see, for example Bromley L.B.C. v. Greater London Council, [1982] 2 W.L.R. 92.

Of course, judges are not neutral or neutered political agents. Judgments are rationalizations of our ideological prejudices. The legal order is not a coherent moral scheme, but an elaborate regime to facilitate and protect concrete economic interests dressed up in doctrinal gibberish; see, for example Rondel v. Worsely, [1969] A.C. 191. The laws are perfectly egalitarian insofar as they allow both rich and poor to sleep under bridges; see A. France, The Red Lily (trans. W. Stephens, 1908) at 95. Furthermore, legal doctrine is an open-ended and indeterminate exercise. Law moves from one doctrinal peak to another through the misty vales of fiction. This is necessitated by the fundamental and often unconscious rationality of the contradictory relations which characterize and underpin the hierarchical society in which we live. Throughout tort law, two background and contradictory visions, individualism and collectivism, compete for control and manifest themselves in matching bundles of principles and counterprinciples.

For instance, tort law is generally based on broad individualistic principles. A person is only liable for what could be reasonably foreseen, albeit objectively ascertained; see Overseas Tankship (U.K.) Ltd. v. Morts Dock A Engineering Co., [1961] A.C. 388. However, there exist certain counter principles which ensure that the less fortunate in society are not excluded from relief. The rule that a tortfeasor takes a victim as she finds him incorporates an clement of communal concern to check on over-zealous adherence to individualistic principles; see Smith v. Leech Brain A Co., [1962] 2 Q.B. 405 and Marconato v. Franklin, [1974] 6 W.W.R. 676. Similarly, in rescue situations, there is a robustly individualistic principle which does not require rescue, but this is being constantly eaten into by a communally-inspired requirement to act in cases of a special relationship; see Mathews v. MacLaren (1971), 22 D.L.R. (3d) 545. Insofar as traditional legal (and political) thought is premised on the necessary and realizable reconciliation of the competing interests of individuals and community, it would be the negation of its very raison d'etre to opt completely for cither extreme. Doctrine vacillates. Neither legal logic nor policy analysts can provide objective guidance as to where doctrine ought to position itself along the continuum. As there is an in-built contradiction, there is no meta-solution; it is a matter of choice. Once a valid and necessary communal competent is admitted, it must be arbitrarily held in check or else it will consume the whole doctrine. At any time, the discrete legal pieces could be arranged into a completely different doctrinal jigsaw. Determinancy is contrived, superficial and ephemeral.

Although this enterprise is carried on in diverse, ingenious and sophisticated forms and often with genuine and well-intentioned sincerity, as the judgments of my former colleagues amply demonstrate, the judiciary cannot escape indictment in this grand affair. Doctrin C.J., Mill and Wright JJ. may be the chief culprits, but Prudential J. is fully implicated. Her criticisms of the others are valid as far as they go, but she remains firmly within this unfortunate tradition. Although variously expressed and disguised, their judgments are nothing more than a crutch for terminally ill society. Each one legitimates the tragic toll of human life in our industrialized society. They present accidents and injuries as an inescapable and natural feature of modern life. Life and death is treated as another commodity to be traded in our market economy.

This obscene reduction of people to a piece of property reaches its most egregious form in the arguments of Mill J. His bottom line is that it does not pay to be too careful. Indeed, he seems committed to the view that the taking of certain safety precautions will be unjust as they will squander valuable social resources. Also, it is ludicrous and despicable to talk of a market in accidents. The legal process is concerned with particular accidents and, if "efficiency" has any value, it is only over the totality of accidents; see O'Shea v. Riverway Towing, 677 F. 2d 1194 at 1201 (1982). Further, the very notion of "efficiency" is an anathema. We would not contemplate using "efficiency" to justify tortured confessions, slavery or baby markets, so why rely on it to determine the incidence of death and injury? While characteristically extreme, Mill J.'s supposedly rational scheme shows the political bias of his colleagues. Rationality is not a formal device, but embodies a deep structure of values. Although the courts would not enforce a $1 million bargain to undergo a .000001 chance of death, they would enforce the payment for a $1 bus ride which, statistically, offers a far higher risk of injury.

Nonetheless, the excesses of Mill J. must not be allowed to deflect criticism from his colleagues. All combine in their treatment of injury and death as economic events. Each accident is considered remedial by the payment of money. People are simply their property; their worth is measured by the value of that property. As Oscar Wilde might have said, "the law knows the price of everybody, but the value of nobody." For instance, the bulk of a damages award consists of a sum for discounted future earnings; see Andrews v. Grand & Toy Alia. Ltd., [1978] 2 S.C.R. 229 and Seffert v. Los Angeles Transit Lines 56 Cal. 2d 498 (1961). This means that, for exactly the same injuries, an infant may get $100,000, a young adult $250,000, and a senior citizen S30.000. Clearly, a victim's worth is his income loss. Moreover, by preserving the income of claimants, it perpetuates the existing unequal distribution of wealth.

In all its guises, the whole process of accident compensation serves to dehumanize. It encourages the maker of Pintos to act as it does and, more, to claim moral and political legitimacy for its economic endeavours. Compensation for injury simply pays off our collective conscience. We can ignore the injured by pretending to have taken care of them, as typified by our attitude to rescue; see Gautret v. Egerton (1867), L.R. 2 CP. 371. Our law reflects a profound indifference to life and suffering. The sentiments of Esher M.R. in Le Leivre v. Gould, [1893] 1 Q.B. 491 at 497 that "a man is entitled to be as negligent as be pleases towards the whole world if be owes no duty to them" still inform the law. In 1969, Breitel J. in Tobin v. Grossman 24 N.Y. 2d 609 (1969) held that a mother who did not see, but heard and came upon the aftermath of a bad accident to her son could not recover, "this is the risk of living and bearing children."

No matter how comprehensive or generous, compensation schemes only address part of the problem. They are all cure and no prevention. Compensation must be subordinated to safety and health. The overriding objective of the law must be to equalize risk throughout society and restore control of those risks to those who undergo the dangers flowing from such risks. Of course, it will never be possible to eliminate risk in our lives. But the second-best alternative is to ensure that all persons can decide the risks to which they are individually exposed. We must share risk collectively and equally. In place of the present unjust distribution, we must radically democratize risk-control. Achieving this objective demands a complete restructuring of all aspects of social life. The time to begin such an heroic effort is well past.

The first step must be to redistribute knowledge and information, for knowledge is power. the elite in our society bold a monopoly on knowledge which comprises the foundation and guarantee of its power. Indeed, this very assumption of information-deprivation is the motive force of Mill J.'s "efficiency" scheme. He treats transaction costs as a natural given rather than a political choice. The debacle of the Ford Pinto case illustrates the pernicious operation of a system based on an unequal distribution of knowledge. Moreover, the possibility of bargaining with a manufacturer over the safety of a car you wish to buy is fanciful. What does a consumer know of a product compared to its manufacturer? For instance, the purchaser of the thalidomide drug lacked adequate resources to discover information about it in order to make a truly informed choice about using it. The fact that the manufacturer possessed, but concealed the available information compounds the injustice; see H. Teff and C. Munro, Thalidomide: The Legal Aftermath (1976).

Throughout our lives we are constantly exposed to risk, but starved of proper information as to the extent of that risk. Moreover, exposure to risk is thoroughly maldistributed. White and blue collar workers do not face the same risk of injury. Whereas a manager of a quarrying company has a .004 chance of injury, a quarryman has a .098 chance; see 2 Royal Commission on Civil Liability and Compensation for Personal Injury (1978). Furthermore, the quarryman does not receive compensation for this exposure in his wages, but earns substantially less than the manager. As regards domestic injuries, incidence of injury depends on the quality of the product bought which, of course, is a function of wealth. In the instant case, Derek is more exposed to injury in his old jalopy than is Allan in his expensive sports car. Also, the level of environmental pollution to be endured is higher in poorer residential areas than in richer ones; there is a strong inverse relationship between smog levels and property values.

To remedy this unequal distribution of information and risk, we must administer a strong dose of democratization. As presently practiced, democracy is a sham and operates as a mild sedative or anaesthetic. It is an apologetic device for the prevailing power-structure. Participation is reduced to a formal and sporadic ritual. Political equality is rendered meaningless by economic inequality. Moreover, such notional participation is confined to governmental activity. Politics is not seen to embrace the exercise of private power and corporate decision-making. Insofar as government is suffocated by corporate and private power, popular participation has no impact on the real decision-makers. It merely allows contemporary social arrangements to be presented as the outcome of citizen choice rather than as the produce of elite imposition. The forums of popular choice--legislature and market--are deadlocked.

The offensive symbolism and injustice of modern democracy must be replaced by a substantive and just vision of democratic society. Democracy is much more than a formal theory of political organization; it is a potent way of daily life. It is not about process, but about action. Democracy means the greatest possible engagement by people in the greatest possible range of communal tasks and public action. Self-determination, individual freedom and personal involvement are the watchwords of the truly democratic culture. A genuine commitment to its unadulterated practice will represent the most powerful challenge to the hierarchical elite. For domination arises and thrives when people lose the sense that society and its institutional paraphernalia are created by people and can be changed by people. Furthermore, participatory democracy is addictive; it educates the political mind. As people begin to reclaim control over their own lives, they will develop an appetite and a capacity for more. Increased political engagement will create and sustain its own momentum. A system of democratic participation in all communal life exploits the vast untapped resources of popular power. The agenda of political debate and action is constantly being redrafted. While promoting the common and the communal, true democracy preserves the unique and the individual. In time, a profound and sensitive understanding of the dialectic tension between individual and community will emerge. Of course, there are no guarantees, but true democracy offers a chance that its stunted contemporary practice can never imagine or realize.

It is clear that the increasing public and private bureacratization of society places a divisive barrier of formal institutions between individuals. It dulls the democratic imagination and suppresses the participatory initiative. Further, it distances people from the political decisions which pervasively affect their lives. At every turn, citizens encounter non-democratic institutions. There is a prevalent feeling of impotence and hopelessness. Yet this very process of bureacratization opens up opportunities for democratic involvement. As both the dominant and dominated groups come to rely increasingly upon such bureaucracies, there emerges a shared focus for their opposing claims and objectives. Accordingly, the democratization of bureaucracy offers the possibility for meaningful control over the actual centres of social decision-making. Popular control over policy-making and risk-exposure is vital. In this struggle, the work of the environmental and anti-nuclear movements exemplify the present despair and the future hope. Excluded from the decision-making process, such activists testify to the true democratic spirit which, repressed and subdued for so long, strains for recognition and fulfillment. Aroused and unleashed, its power is sufficient to fracture the boundaries between bureaucracy and its constituencies and to bridge the gap between bureaucrats and citizens. To entrust such responsibilities to the judiciary is to strengthen the very boundaries and extend the very gaps that are to be removed. Sadly, the Orwellian dystopia is with us; his black prophecy has been almost tragically fulfilled. If 1984 is to be the dark year of the bureaucracy, let 1985 be the dawn of the movement toward a new democracy.

Finally, the notion of risk-sharing proposed is neither novel nor radical. Although its pervasive implementation would revolutionize society, its general validity is recognized and upheld by existing doctrine. Although artificially confined to medical situations, a clear feature of tort law is "informed consent"; see Cobbs v. Grant 8 Cal. 3d 229 (1972) and Reibl v. Hughes, [1980] 2 S.C.R. 880. Doctors are required to supply their patients with all the necessary and available facts of the material risks of a procedure in order for there to be intelligent consent. As the court declared in Canterbury v. Spence 474 F. 2d 772 at 780 (1972):
   The root premise is the concept ... that "every human being of
   adult years and of sound mind has a right to determine what shall
   be done with his own body...." True consent to what happens to
   one's self Is the informed exercise of a choice, and that entails
   an opportunity to evaluate knowledgeably the options available and
   the risk attendant upon each.


This requirement rests upon a person's right of self-determination. Founded on the need to promote individual autonomy and to encourage rational decision-making, it is impliedly defended and espoused by all of my former judicial colleagues. Yet it remains arbitrarily and illogically confined to peripheral situations. If it were not held in check, it would consume the whole of the tort law. Its present constriction highlights the arbitrary character and deep indeterminancy of the law and reveals the illegitimate hierarchy of power its confinement serves to perpetuate and sustain.

In taking my leave of this court, I implore you to follow my lead. I dedicate my remaining years to this struggle. Humanity stands on the edge of the abyss. We must regroup and make good on our commitment to ourselves. Love and power must converge. We must give voice to the inarticulate speech of the heart. Victims of the world unite. In the eternal words of John Donne:
   No man is an Island, entire of itself;
   Every man is a piece of the Continent, a part
   of the main.
   Any man's death diminishes me,
   Because I am involved in Mankind;
   And therefore never send to know for whom the
   bell tolls;
   It tolls for thee.


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(1) Canengus is a small, little-knows island in the mid-Atlantic. Something of a geographical enigma, its capital. Ottlonwash, is equidistant from Ottawa, London and Washington. Coincidentally, it is a common law jurisdiction end its law is a unique blend of Canadian, English and American source.

Allan C. Hutchinson, Associate Professor of Law, Osgoode Hall Law School. York University, Toronto.

Derek Morgan, Visiting Professor of Law, Osgoode Hall Law School, York University, Toronto. We are indebted to many friends and colleagues for their help and advice in writing this paper. We are also happy to record our thanks to Osnaugh Fitzgerald, Michael Gottheil, Catherine Since and Kevin Whitaker for their generous research and assistance.
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Date:Sep 1, 2010
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