Date: Thu, 3 Nov 2005 15:28:20

From: Robert Stevens

Subject: UK Compensation Bill Published

Jason wrote:

Take the following example: I discover a cure for HIV/AIDS that involves releasing a rare form of radiation into the atmosphere. The radiation is very rare and is largely benign but unfortunately is deadly, 99 times out of 100, for 1 in a million people. Is it negligent to release the radiation? If social utility is the test, or a part of the test, then clearly it is not.

What if during a wartime shortage of vehicles, the defendants use a left hand vehicle which had no signal when turning into an offside lane. If the use of the vehicle during the emergency results in an accident are, do we ignore the utility of the action and judge the driver as if it was still peacetime?

(The answer is, of course, no: Daborn v Bath Tramways [1946] 2 All ER 343.)

The important point, and this is Professor Wright's point I think, is how and why we think social utility is relevant. If we were economists (which thank the Lord we are not) we'd think that fault was all about weighing up costs and benefits. That is untenable as a matter of law. Trying to argue that we completely ignore social utility is also not a runner.

RS

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