‘To what extent do policy considerations affect the scope of liability in the intentional torts, and to what extent should they?’
The Common Law finds itself in a constant battle between using policy-based or principle-based considerations when shaping the scope of liability in intentional torts. On one hand, policy, which Neil MacCormick has described as a “hideously inexact word in legal discourse”,[1]is best defined as: “substantive justifications to which judges appeal when standards and rules of the legal system do not provide a clear resolution of a dispute”,[2]often improving some socio-economic feature of the community.[3]Lord Neuberger, amongst others, supports the view that “all aspects of law of torts are grounded on policy”.[4]Nonetheless, principle also finds its place in the equation, and is distinguished from policy as it is primarily concerned with individuals and “interpersonal justice”.[5]In the light of these definitions, we find that the scope of intentional torts: such as battery and false imprisonment, which will be addressed in turn, have a more policy-based focus. It will additionally be argued that the extent to which the courts have become policy-makers, has been taken too far. The intentional tort of battery refers to the actual infliction of unlawful force on another person and develops primarily through policy considerations. This was seen in Livingstone v Ministry of Defence,[6]which was preoccupied with whether intention can be transferred in tort. In deciding whether they wanted to protect soldiers from being held accountable for actions they had not fully intended or use policy to protect all members of society equally, the two approaches clashed again. Nonetheless, the policy concern of the well-being of the community was preferred, thus widening the scope of liability.Moreover, in F v West Berkshire Health Authority,[7]Lord Goff overruled Wilson v Pringle’s[8]hostility requirement and widened the scope of liability by relying on policy. His Lordship announced that medical cases could not fall “within the exception relating to physical contact which is generally acceptable in the ordinary conduct of everyday life”[9]and had to be dealt with separately. The ratio decidendi of this case is based on the fact that it would be impossible, policy-wise, to uphold the requirement of ‘hostility’ if medical cases were not taken to be an exception. In putting the hostility requirement to the side, the courts ensured that doctors were able to continue to work in an environment which promoted ‘finding the best treatment for every patient’. This could, however, also be justified using the principle of protecting doctors, which shows the overlap that exists between policy and principal. Nonetheless, it seems that the courts were more preoccupied in ensuring the well-being of the ‘community’ rather than ‘individuals’.The courts have, however, also found themselves concerned with issues of principle, when deciding the scope of liability. This is underlined in St. George’s Healthcare NHS Trust v S,[10]where the right to bodily integrity was prioritised, in a case where a woman in labour was forced to have a caesarean for her and her baby’s health. In this instance, Judge LJ noted that her right to bodily integrity is“not reduced or diminished merely because her decision to exercise it may appear morally repugnant”.[11]This is an important point to make as he explicitly disregards the “morals” which policy is usually concerned with. Jonathan Herring supports this view, and states: “giving a patient treatment they do not want is interfering with not only their autonomy but also their right to bodily integrity”.[12]From this we can, as David Feldman, gather that the right to bodily integrity covers “negative liberties”,[13]thus making the scope of liability fairly wide. Valuing this principle, however, comes at the cost of the public policy of protecting the physical health of women and children; nonetheless highlighting the flaws in Neuberger’s radical claim that principle is always outweighed by policy.[14]Next, the tort of false imprisonment is defined as an unlawful restriction of a person’s freedom of movement. Bird v Jones,[15]for instance, requires there to be a “total restraint of the liberty of the person”,[16]hinting at the important role of policy in this tort. The court need to ensure that the scope of liability for this tort remained narrow, as allowing it to grow would support the expansion of ‘compensation culture’. Furthermore, Prison Officers Association v Iqbal[17]states that an omission cannot be false imprisonment. Although Sulivan LJ has a strong dissent, insisting that “while the right to strike is important, the right to not be falsely imprisoned is of fundamental importance”[18], the majority judgement stood for policy. Ensuring that claims were only restricted to positive actions was deemed more important than protecting the rights of prisoners who had been locked up all day, which puts into question the extent to which we can value a policy-based approach to be more ‘moral’ than a principle-based one. Moreover, Herd v Weardale Steel Co[19]protects contracts over the right to comfort or the right to safety. Amos agrees with Viscount Haldane LC and arguesthat “his [the defendant’s] refusal to free the prisoner at some other way that that contemplated by the parties does not constitute false imprisonment”.[20]In doing so, the courts ensured that the scope of liability remained narrow enough to protect the legitimacy of contract law. On the other hand, false imprisonment has also been shaped through principle. Regina v Governor of Her Majesty's Prison Brockhill Ex Parte Evans[21]verbalizes that “the liberty of the subject can be interfered with only upon ground which the court will uphold lawful”.[22]In doing so, the principle of the right to freedom was prioritized over any policy considerations. Additionally, Murray v Ministry of Defense[23]also says: “the law attaches supreme importance to the liberty of the individual”,[24]linking us back to the fact ‘principles’ are understood as being focused on ‘individual rights’. This, however, does not take away from the fact the most seminal case in the tort of battery use a more policy-based approach in defining the scope of liability.Finally, judging the extent to which policy considerations should affect the scope of liability in intentional torts, is convoluted. On one hand, academics such as James Plunkett argue that the ‘policy-based’ approach appreciates both policy and principles anyway, thus allowing for a more just outcome,[25]as a solely principle-based approach would be “seldom insufficient”.[26] Also, in giving judges the discretionary power to decide cases based on what they believe will benefit the community, the courts are given the space they need to ensure a ‘moral’ outcome. However, allowing such a policy-based approach comes at a severe cost. As highlighted by Allan Beever, judges are not qualified to be policy-makers, and should therefore not be taking the role of Parliament.[27]Although Parliament may be an inefficient way of defining the scope of liability (due to their business and their political-agenda), it is more problematic that an un-elected body is making such policy-driven decisions. Lord Neuberger has countered this claim with the argument that the remedy to any problematic judgement is “with Parliament”,[28] however this is an even more inefficient way to approach tort law than relying on Parliament to make positive actions. Moreover, Plunkett reiterates that judges find themselves needing to resolve situations which are “incommensurable”.[29]In having to choose whether interpersonal justice or community welfare should prevail, courts can never obtain a fully ‘moral’ judgement – effectively going against the strongest argument for a policy-based approach. In conclusion, policy considerations affect the scope of liability more significantly than policies in both the tort of battery and false imprisonment. However, due to the fact judges are unelected and that the matters they deal with are often too complex to be moral in all regards anyway, the courts should not be using their powers to become policy-makers.
[1]Neil MacCormick, Legal Reasoning and Legal Theory(Oxford University Press 1978) 263[2]John Bell, Policy Arguments in Judicial Decisions(Oxford University Press 1985) 23 [3]Ronald Dworkin, Taking Rights Seriously (Bloomsbury Academic 2013) 22 [4]Lord Neuberger, ‘Some Principles on Principles Governing the Law of Torts’ (2016) https://www.supremecourt.uk/docs/speech-160819-03.pdfaccessed 20 October 2018[5]James Plunkett, ‘Principle and Policy in Private Law Reasoning’ (2016) https://www.cambridge.org/core/services/aop-cambridge-core/content/view/228F5B718585BE827082BB36BE72B909/S0008197316000301a.pdf/principle_and_policy_in_private_law_reasoning.pdf accessed 20 October 2018 373[6][1984] NI 356[7][1990] 2 AC 1[8]ibid[9]St. George’s Healthcare NHS Trust (n 7)[10]St. George’s Healthcare NHS Trust v S [1998] 3 WLR 936[11]ibid[12]Jonathan Herring, ‘The Nature and Significance of the Right of Bodily Integrity’ (2017) https://www.cambridge.org/core/journals/cambridge-law-journal/article/nature-and-significance-of-the-right-to-bodily-integrity/79703F3BE9C5C21BB76338C050E951BCaccessed 20 October 2018 568[13]David Feldman, Civil Liberties and Human Rights in England and Wales, (2nded, Oxford 2002) 241[14]Lord Neuberger, ‘Implications of Tort Law Decisions’ (2017) https://keats.kcl.ac.uk/pluginfile.php/3154551/mod_resource/content/2/Neuberger%20-%20Implications%20Lecture.pdfaccessed 20 October 2018[15][1845] 7 QB 742[16]ibid[17][2010] 2 All ER 663[18]ibid [103][19][1915] AC 67[20]Amos, ‘A Note on Contractual Restraint of Liberty’[1928] 44 LQR 464[21][2000] 3 WLR 843 [22]ibid[23][1987] NI 219 [24]ibid[25]Plunkett(n 5) 379[26]Harold Luntz, ‘The Use of Policy’ (2007) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1021629accessed 20 October 2018 55[27]Allan Beever, Rediscovering the Law of Negligence, (2007 Hart Publishing) 174[28]Neuberger(n 4) [25][29]Plunkett(n 5) 384
