Analysis of tort cases appears to demonstrate a notable degree of disarray and a marked lack of reliable principle, United Kingdom Supreme Court President Lord Neuberger says.
In an address to the Northern Ireland Pesonal Injury Bar's inaugural conference, Lord Neuberger said past commentators' comments that it was difficult to distil a coherent body of principles in tort cases was unsurprising "as almost all aspects of tort law, above all negligence, are based on policy".
"Given the very broad area in which tort (in particular negligence) covers, and given the infinite variety of human life, any attempt to identify or distil clear principles in such an area is fraught with problems."
In determining duty of care, the first aspect of the famous three-fold test, foreseeability of damage, involves a principle, "and the second aspect, proximity, could, I support, just about be said to do so, although it involves a heavy dollop of policy, but the third aspect, fairness justness and reasonableness, it seems to me, is pure policy, and it may be said to subsume the first two ingredients in any event," he said.
After considering the results in a number of tort cases, Lord Neuberger said principle rather than policy might be a dangerous guide to those analysing, advising on, debating, or deciding cases involving claims in tort.
"However, clarity and predictability are vitally important ingredients of the rule of law. Accordingly, it can be said with considerable force that it is quite right for the judges to be striving to identify principles in the field of tort law. Even if a particular principle cannot always apply, it may prove reliable in the great majority of cases. But there is no getting away from the fact that there are real risks in developing principles in the field of torts, as they may not infrequently operate to mislead than to help.
"There is a strong argument that, in some areas at least, it may be more helpful to abandon principle and to take a stand on policy."
Lord Neuberger said there were, of course, arguments as to why judges should leave policy alone.
"Judges are unelected, judges lack the technical competence, and policy leads to less certain outcomes. It is often said that judges are often neither informed or experienced enough to make the economic and social assessments which questions of policy so often involve.
"I wonder. Many of the most important judicial decisions in the field of torts seem to me to involve those sort of assessments."
Lord Neuberger then pointed to Dongohue v Stevenson  AC 562, Hedley Byrne v Heller & Partners Ltd  AC 465 and South Australia Asset Management Corp v York Montague Ltd  AC 191.
"And, if one casts one's eyes more widely, perhaps the most marked development in the common law in the past fifty years has been the very substantial growth in domestic judicial review: nobody can deny that it is a development for which the judges are responsible, or that it is a development with substantial macro-social and economic implications."
He concluded that the common law wanted the best of both worlds.
"It develops and applies principles as far as it can in order to introduce predictability and logical cohesion into the law, but it accepts that, with the infinite variety of human experiences, and with developments in the social, economic, ethical and technological spheres, hardly any principles can be applied blindly and most principles will have to be subject to exceptions, to changes or even to discarding at various stages of their existence.
"And, sometimes at least, practising lawyers must wonder whether judges just want to ensure that legal advisers are kept busy or, as some might see it, kept confused."