A LEGAL SYMBIOSIS: STATUTORY AND COMMON LAW INTEGRATION IN THE LAW OF TORT Key words: Tort; Statute; Common law; Integration; Legal consistency ABSTRACT Statutes and common law must be seen as integrated parts of the whole law of obligations. To view them as unmixed oil and water is a profound mistake. Andrew Burrows (2012) Using the Defamation Act 2013 ( DA ) and the Occupiers Liability Act 1957 ( OLA ) as examples, this essay first explores the role that statute currently plays in English tort law, analysing the current degree of integration between statute and common law in the law of obligations, and further suggesting that the Human Rights Act 1998, like the DA and the OLA, should be amalgamated with the common law as a tort statute. Drawing from case law and a comparison between English and Chinese tort law, this essay then shows how integration between statutes and common law helps achieve legal consistency. Finally, with a primary focus on the cases of Barker v Corus and Rothwell v Chemical Insulating Co Ltd., as well as their legislative aftermath, this essay stresses the importance of finding a suitable balance in such integration, so that neither statute nor common law overpowers the other. I. INTRODUCTION Statutes and common law should not be seen as unmixed oil and water but as integrated parts of the whole law of obligations. The two share a symbiotic relationship; when this relationship is balanced, coherence in the law is achieved. Segregating statute and common law is detrimental to coherence and would therefore be a mistake. This essay is presented in three sections. The first section primarily provides a descriptive analysis of the current interaction between common law and statute, the second shows how such interaction satisfies normative expectations by bolstering coherence in the law, and the third caveats the claim prior with an observation that any interaction between statute and common law must be balanced, without Parliament overpowering common law.
II. INTERACTION BETWEEN STATUTE AND COMMON LAW Of tort law in America, Geistfeld writes: the tort system has opted to be a complementary component of the modern administrative state. 1 He explains how, under the common law principle of deference, tort case law in America unilaterally adheres to and supports policy determinations in statute. By contrast, in the UK, statute and common law work in tandem to form tort law. II.1 Common law: Filling lacunae left by statute Lord Mance, speaking extra-judicially, stated: it is not only the role of Parliament, but also of the judges to ensure that the law develops to meet current needs. 2 A technique of statute drafting in UK law is to leave some ambiguity within a statute s text and to rely on common law to fill in the gaps. 3 This is evidenced in, for example, the law on defamation and occupiers liability. The primary statute on defamation, the Defamation Act 2013 ( DA ), leaves defamation undefined, relying on the courts jurisprudence. The test was previously established in Sim v Stretch, 4 in which Lord Atkin stated it to be whether the words would lower the plaintiff in the estimation of right thinking members of society generally. 5 Similarly, the Occupiers Liability Act 1957 ( OLA ), in which the law surrounding occupiers liability is partially codified, does not address the essential element of causation in negligence. One must therefore look to common law to establish causation in occupiers liability (which was considered, for example, in Staples v West Dorset District Council, 6 where it was found that a bare possibility is not enough to establish causation). The above examples show how both past and future common law supports statute. The main feature of common law is that it is always alive, and new authority will supplant the old. Ambiguity within a statute is therefore a gateway for future judicial authority to supplant the 1 MA Geistfeld, Tort Law in the Age of Statutes (2014) New York University Public Law and Legal Theory Working Papers (4-2014) 957, 1020. 2 Mance LJ, Should the law be certain? (Oxford Shrieval lecture, October 2011), 15. 3 A Burrows, The Relationship Between Common Law and Statute in the Law of Obligations (2012) [ Burrows ] 128 LQR 232, 234. 4 [1936] 2 All ER 1237. 5 Ibid, 1240. 6 (1995) 93 LGR 536.
current, turning the statute into a living instrument that evolves with common law. A symbiotic relationship is thus established, with common law given weight to by statute, and the statute becoming a document capable of permeability, evolution and change; words not usually associated with codification. II.2 Statute: Solving problems identified by common law While common law fills legislative ambiguities, statutes address specific problems identified by common law. Constantly applying the law to a range of disputes, courts see a greater range of circumstances than may be contemplated by Parliament or the Law Commission and can identify significant problem areas in the law; Parliament can then address these areas through statute. In Spiller v Joseph, 7 for example, Lord Phillips expressed his view that defamation, an area in which issues are often complex and controversial, is no longer a field in which trial by jury is desirable. 8 Parliament addressed his concerns by implementing s.11 of the DA, which provides for defamation trials to proceed without a jury unless otherwise directed by the court. In this way, statute alters the law according to courts observations; such interaction between statute and common law ensures that the law constantly evolves and improves, as did the law on defamation following s.11 of the DA. II.3 The Human Rights Act: Odd one out? As noted above, statutes are usually welcomed into the realm of tort. One exception, however, is the Human Rights Act 1998 ( HRA ). Notwithstanding significant overlap in actions under tort and under the HRA, the HRA sits detachedly and uneasily alongside tort law. 9 It is submitted that, like the OLA and DA, the HRA should operate jointly with common law as a tort statute. The HRA fits the purpose of tort law. It is contended that there is no one-size-fits-all purpose of tort. For example, the tort of negligence suggests that tort is concerned with correcting wrongs, contradicting the rights-based tort theory, which propounds that tort law exists to specify and protect individuals rights. 10 On the other hand, the tort of trespass to the person, geared towards the protection of rights, contradicts the wrongs-based approach of the compensation-deterrence theory, which vests judges with quasi-legislative authority to 7 [2011] 1 All ER 947. 8 Ibid, [116]. 9 J Steele, Damages in tort and under the Human Rights Act: remedial or functional separation? (2008) 67 CLJ 606. 10 JCP Goldberg, Twentieth-Century Tort Theory (2002) [ Goldberg ] 91 Geo LJ 513, 518.
correctively regulate conduct. 11 Advocating one tort theory as an umbrella theory that addresses all of tort s purposes is therefore merely an attempt to fit a square peg in a round hole. Different facets of tort fit different purposes; in this case, the HRA fits the rights-based purpose of tort and should be recognised as a tort statute. The recent judicial creation of a civil action disclosure of private information based on the right to privacy in s.6 of the HRA supports such a claim. Although only one of the presiding judges in Campbell v MGN 12 (the case that established this civil action) referred to the wrong as a tort, 13 the Supreme Court, in Vidal-Hall v Google Inc, 14 recently decided that the nature of the claim justifies its classification as a tort. 15 This suggests that the HRA is on its way to being recognised as a tort statute. Case law provides further argument for amalgamating the HRA and tort law. In Smith v Ministry of Defence, 16 separate claims under negligence and under Article 2 of the European Convention on Human Rights (as incorporated into UK law by the HRA) were raised. When heeding previous jurisprudence that such claims must run in parallel, 17 the Supreme Court found that, nonetheless, a decision on one type of claim would inevitably and invariably affect the other. Smith shows the problem with viewing the HRA and common law as unmixed oil and water a distinction between substantially similar claims results in disorderly, inefficient and problematic outcomes in human rights disputes. III. COHERENCE IN THE LAW OF TORT In advising clients, a lawyer must, aided by the law, gauge the outcome of a case, and is little more than an expert guesser. 18 Coherence in the law is therefore valuable as it provides a measure of certainty in such predictions. The symbiosis of legislation and common law creates coherence in tort. It is conceded that complete certainty in tort is unrealistic to expect. In the words of Lord Bridge in McLoughlin v O Brian: 19 11 J Goudkamp, J Murphy, Tort Statutes and Tort Theories (2015) 131 LQR 133, 138. 12 [2004] 2 AC 457. 13 Ibid, [14] (Nicholls LJ). 14 [2015] EWCA Civ 311. 15 Ibid, [43]. 16 [2013] UKSC 41. 17 Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50. 18 FR Coudert, Certainty and Justice (1905) 14 YLJ 361, 361.
[W]e should resist the temptation to freeze the law in a rigid posture in the interests of certainty, where the very subject matter is uncertain and continuously developing. 20 However, there is a degree of certainty that can be ascertained through coherence, without prejudice to Lord Bridge s concerns. III.1 Consistency through integration While courts aim to be consistent with their decisions when developing common law, statutes must provide an overarching set of rules that govern the law surrounding controversial issues. By interpreting these statutes in line with common law, courts create consistency in the law. The cases following the 1989 Hillsborough disaster demonstrate the need for statute in the pursuit of coherency in the law. In Alcock v Chief Constable of South Yorkshire, 21 relatives of those killed in the disaster could not recover for psychiatric injury as they were secondary victims. In a later case, White, Frost & Others v Chief Constable of South Yorkshire, 22 the House of Lords decided police officers could not recover for psychiatric injury caused by the disaster either. Lord Griffiths stressed the importance of coherence: any claim must be subject to the limits set out in Alcock s case to avoid an unacceptable distinction between employees and relatives. 23 Lord Steyn then admitted that the law on compensation for pure psychiatric harm was a patchwork quilt of distinctions and that there were no refined analytical tools which [would] enable the courts to draw lines in a way which is coherent. He concluded that, to remedy this, Parliament [must] undertake radical law reform, 24 showing the need for legislation to prompt consistency in areas where the law is not clear-cut. At the same time, courts are tasked with interpreting statutes in line with the common law. A statute cannot be isolated from the common law that interprets [it]. 25 The common law s role in the interpretation of statutes is evidenced by 4Eng Limited v Harper, 26 in which Judge 19 [1982] UKHL 3. 20 Ibid, 443. 21 [1991] UKHL 5. 22 [1999] 2.A.C. 455. 23 Ibid, 483. 24 Ibid, 500. 25 Burrows, 240. 26 [2008] 3 WLR 892.
Sales referred to the common law on restitution when interpreting s.423 of the Insolvency Act 1986. By doing so, he maintained consistency between common law and statute. III.2 Comparative inconsistency in the Chinese tort system The Chinese tort system shows why viewing legislation and case law as unmixed oil and water is a mistake; only through integration of the two can coherence be achieved in the law. Chinese tort law is contained exclusively in legislation, and the judiciary s only task is to interpret the legislation on a case-by-case basis. The two pieces of legislation regulating tort law in China are the Constitution of the People s Republic of China (1954) ( Constitution ) and the General Principles of Civil Law of the People s Republic of China (1986) ( General Principles ). The Constitution lays down the purely rights-based foundation of the Chinese tort system, declaring the State s responsibility to protect the civil rights of farmers (Art. 8), non-agricultural laborers (Art. 9), and capitalists (Art. 10), and to provide compensation where damages have been suffered following a governmental employee s violation of a citizen s civil rights (Art. 97). The General Principles, which was enacted to protect lawful civil rights, 27 contains the substantive tort law. The fundamental flaw in the Chinese tort system is that although the legislation is insufficiently concrete, it is the only binding authority upon the judiciary in tort law. For lack of the common law stare decisis principle as applied in the UK, Chinese courts do not interpret the legislation uniformly. 28 Thus, similar cases are often decided differently, rendering the law incoherent. IV. DANGER IN EXCESSIVE PARLIAMENTARY INTERVENTION Just as oil and water do not mix, neither does excessive sugar dissolve in scant water; while there is merit in integrating statute with common law, past practice of Parliament reveals a danger of excessive Parliamentary intervention into common law causing legal inconsistency. III.1 Barker v Corus 29 In Barker, the plaintiff sued on the basis that the defendant, his previous employer, contributed to the risk of his developing mesothelioma by negligently exposing him to asbestos during his employment. The court applied a previous precedent established in Fairchild v Glenhaven Funeral 27 Y Lin, The Tort System in China (1989) 52 DLJ 143, 149. 28 Ibid, 165-167. 29 [2006] UKHL 20.
Services, 30 that a claimant need not prove factual causation where there is an evidential gap. The facts of both cases were similar, but in Barker, unlike in Fairchild, the plaintiff himself might have contributed to the harm. In Fairchild, liability was assumed to be in solidum, whereas in Barker, the court determined damages based on the probability of the defendant causing the harm. It is conceded that Barker s outcome with regards to apportionment of damages seemed inconsistent with that of Fairchild. The fault of this decision was stated by Lord Rodger in his dissenting opinion: two substantially similar cases may be treated differently in terms of the quantum awarded, based on untenable factual technicalities. 31 However, it would be prudent, at this point, to bear Lord Bridge s cautionary words (mentioned above) in mind; one cannot expect complete consistency in tort. Given this, the unfortunate outcome in Barker was unavoidable. Parliament, however, attempted to remedy the unfairness by reversing Barker with s.3 of the Compensation Act ( CA ), which provides for full recovery in cases related to asbestosrelated mesothelioma. In doing so, Parliament missed the forest for the trees, creating an avoidable inconsistency in the law: while other factors may cause mesothelioma, the CA only applies to asbestos-related mesothelioma cases; Barker still applies to similar cases where mesothelioma was not caused by asbestos. Parliament did not consider the wider causation issues that were contemplated in Fairchild and Barker. Rather, it focused exclusively on the outcome of each case. In its attempt to rectify what it presumed to be unfairness caused by the judiciary, Parliament neglected to consider common law principles and the importance of coherence in the law. This was a haphazard omission; Parliament should have heeded Lord Hunt of Wirral s words as he spoke in the House of Lords debate against the Compensation Bill: [It] might have been better for the Government to have spent the summer preparing a comprehensive Bill to overhaul the system in a holistic, coherent fashion rather than [legislate] in haste. 32 III.2 Rothwell v Chemical Insulating Co Ltd. 33 The Scottish government later relied on the CA while legislating in response to Rothwell. 30 [2002] UKHL 22. 31 Barker (n25), [85]. 32 Hansard HC (19 Jul 2006), col 1319. 33 [2007] UKHL 39.
In Rothwell, the claimants were exposed to asbestos during employment. They developed pleural plaques, a benign indicator of the presence of asbestos fibres in the lungs and, consequently, potential development of fatal asbestos-related diseases in the future. Their claims against their employers failed; the development of symptomless pleural plaques was held not to constitute compensable damage. The Scottish Parliament, with regard to the Compensation Act, 34 sought to change the conclusion reached by the House of Lords in Rothwell, as justice gives something for anxiety that has been caused. 35 The result was the Damages (Asbestosrelated Conditions) (Scotland) Act 2009, which legislated for asbestos-related pleural plaques to be an actionable and compensable harm. 36 It is conceded that the Act s enactment was within the Scottish Parliament s competence, as decided by the Supreme Court in AXA General Insurance Ltd. 37 However, the Act led to incoherence similar to that created by the CA asbestos-related pleural plaques were unreasonably placed into an enclave to which different rules applied than the norm in personal injury cases. Further, the use of the CA as justification for the Scottish Act s enactment showed that the CA s enactment potentially opened the floodgates to further inappropriate legislative intervention into common law, prompting academic opinion that legislative incursions prove to be self-perpetuating. 38 It is notable, however, that the Westminster Parliament, when presented with a bill similar to that of the Scottish Act, chose not to progress with it, finding legislative reversal of Rothwell inappropriate. 39 This suggests that the CA may not have opened the floodgates per se, and that legislative integrity could still prevent Parliament from excessively interfering with the common law. Nevertheless, Parliament must keep legislative intervention into the common law to a minimum. III.3 Striking the optimal balance 34 Scottish Parliament Justice Committee, Official Report (2 Sep 2008), col 1083. 35 Ibid, col 1076. 36 Damages (Asbestos-related Conditions) (Scotland) Act 2009, s.1. 37 Re Application for Judicial Review of the Damages (Asbestos-Related Conditions) (Scotland) Act [2010] [ AXA ] CSOH 2, [206]. 38 J Lee, Inconsiderate Alterations in Our Laws : Legislative Reversal of Supreme Court Decisions in J Lee (ed), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Oxford: Hart Publishing 2011), 137. 39 Ibid, 144.
Regarding the aftermath of Barker and Rothwell, Lee suggests that there is not so much dialogue as legislative monologue and judicial soliloquy. 40 For the law to be coherent, statute and common law must engage properly. First, engagement between statute and common law must be balanced. To extend Lee s analogy, a play is only well-staged when its actors know and perform their roles. Therefore, Parliament must legislate generally, courts must determine individual disputes, and neither must overstep its boundaries. Where Parliament is too particular with its legislation, Barker and Rothwell are evidence of an unwanted result: distinct and uncompromisable statutory rules that are governed by no clear principle. 41 Second, as argued above, Parliament must keep reversal of common law to a minimum. Understandably, there are instances where reversal is necessary; decisions set precedents, and precedents do not guarantee a lack of mistake. If a decision is manifestly unjust, there is validation for Parliamentary intervention. However, in such instances, reversal must be done in accordance with European jurisprudence, 42 in a non-arbitrary manner. 43 V. CONCLUSION As demonstrated, tort law is heavily influenced by statute. Burrows writes: Statutes are both dependent on the common law and are a source of common law development. 44 Provided both sides engage in a balanced manner, this symbiotic relationship achieves coherence in the law. Viewing statutes and common law as unmixed oil and water, therefore, would be a profound mistake. 40 Ibid, 123. 41 K Keith, Philosophies of Law Reform (1991) 7 Otago Law Review 363, 364. 42 Convention for the Protection of Human Rights and Fundamental Freedoms, Art 1, Protocol 1. 43 AXA, [21]. 44 Burrows, 233.
BIBLIOGRAPHY A Burrows, The Relationship Between Common Law and Statute in the Law of Obligations (2012) 128 LQR 232 FR Coudert, Certainty and Justice (1905) 14 YLJ 361 Hansard HC (19 Jul 2006), col 1319 J Lee, Inconsiderate Alterations in Our Laws : Legislative Reversal of Supreme Court Decisions in J Lee (ed), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Oxford: Hart Publishing 2011) J Steele, Damages in tort and under the Human Rights Act: remedial or functional separation? (2008) 67 CLJ 606 JCP Goldberg, Twentieth-Century Tort Theory (2002) 91 Geo LJ 513 J Goudkamp, J Murphy, Tort Statutes and Tort Theories (2015) 131 LQR 133 K Keith, Philosophies of Law Reform (1991) 7 Otago Law Review 363 MA Geistfeld, Tort Law in the Age of Statutes (2014) New York University Public Law and Legal Theory Working Papers (4-2014) 957 Mance LJ, Should the law be certain? (Oxford Shrieval lecture, October 2011) Scottish Parliament Justice Committee, Official Report (2 Sep 2008), col 1083 TABLE OF CASES 4Eng Limited v Harper [2008] 3 WLR 892 Alcock v Chief Constable of South Yorkshire [1991] UKHL 5 Barker v Corus [2006] UKHL 20 Campbell v MGN [2004] 2 AC 457 Fairchild v Glenhaven Funeral Services [2002] UKHL 22 McLoughlin v O Brian [1982] UKHL 3 Re Application for Judicial Review of the Damages (Asbestos-Related Conditions) (Scotland) Act [2010] CSOH 2 Rothwell v Chemical Insulating Co Ltd. [2007] UKHL 39 Sim v Stretch [1936] 2 All ER 1237 Smith v Ministry of Defence [2013] UKSC 41
Staples v West Dorset District Council (1995) 93 LGR 536 Spiller v Joseph [2011] 1 All ER 947 Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50 Vidal-Hall v Google Inc [2015] EWCA Civ 311 White, Frost & Others v Chief Constable of South Yorkshire [1999] 2.A.C. 455 Y Lin, The Tort System in China (1989) 52 DLJ 143 UK LEGISLATION Damages (Asbestos-related Conditions) (Scotland) Act 2009 Defamation Act 2013 Occupiers Liability Act 1957 EUROPEAN TREATIES Convention for the Protection of Human Rights and Fundamental Freedoms