31 1.

15 Paying for tort law

The House of Lords dismissed his claim. They ruled that tort law did not demand that
the council destroy the valuable social amenity represented by the beaches around the lake
so as to save people like Tomlinson from harming themselves:
. . . it is not, and should never be, the policy of the law to require the protection of the foolhardy
or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the
liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut
down because some youths may climb them and fall? Does the law require the coastline and other
beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic
spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices
and indulge in activities dangerous only to themselves? The answer to all these questions is, of
course, no. But this is the road down which your Lordships, like other courts before, have been
invited to travel . . . In truth, the arguments for the claimant have involved an attack upon the
liberties of the citizen which should not be countenanced. They attack the liberty of the individual
to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens
as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit
of an unrestrained culture of blame and compensation has many evil consequences and one is
certainly the interference with the liberty of the citizen.
47
The House of Lords decision in Tomlinson was intended to reassure local councils that all
the law of negligence required them to do by way of protecting people from harm on their
land was to act reasonably. However, the House of Lords missed the point as to why the
council in Tomlinson was happily proposing to destroy the beaches around the lake before
Tomlinsons accident. To win a negligence case, all you may have to show is that you acted
reasonably. (Though it is worth pointing out that the council in Tomlinson lost in the Court
of Appeal.) To avoid being sued at all, you may have to go beyond what is reasonable and
take unreasonable steps to minimise the risk of people being injured on your watch. And it
is the desire to avoid being sued at all that motivates actors like the council in Tomlinson
not the desire to give yourself a good chance of winning if you are sued and attempting
to avoid being sued at all can involve acting in ways that are contrary to the public interest.
(C3) The third potential social cost associated with tort law lies in the fact that anyone
who is continually exposed to a risk of being sued in tort needs to carry liability insurance.
This gives insurance companies a huge amount of power over the insured, to dictate
to the insured what they must and must not do threatening that if the insured does
not do as they are told, they will lose their liability insurance. This transfer of power to
insurance companies represents a considerable social cost because of the loss of autonomy,
responsibility and accountability involved in transferring to insurance companies the
power to make decisions as to what precautions the insured should take to avoid harm
to others. If we lived in a rational world, there is simply no way an insurance company
would be given the power to decide, for example, whether a teacher needed to be on duty
at a school on a Saturday when the school hall was being used for a wedding reception,
or whether a play area in a park should have a merry-go-round on it. But that is the world
we live in it at the moment.
It does not seem to us that these are merely potential costs of having a system of tort law.
They are costs that are always present whenever a system of tort law exists, and so far as the
size of these costs are concerned, they seem to loom very large at present.
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[2004] 1 AC 46, at [81] (per Lord Hobhouse).