Date: Fri, 4 Nov 2005 23:38:39

From: Jason Neyers

Subject: UK Compensation Bill Published

Dear Colleagues:

I post this on behalf of Israel Gilead (since I have been informed that many did not get this message):

Greetings from Jerusalem.

Regarding the social utility debate let us recall:

a) That the ultimate test as to whether a given conduct is negligent is whether this conduct was a desirable one in the circumstances. The actor is not negligent when she did a right thing and she is negligent when she should have acted differently.

b) Under the objective reasonable person standard the decision whether a given conduct was desirable or not is a social decision - taken by society through the courts.

Given the above, it is obvious to me that the overall net social value of a given conduct should be taken into account when determining whether it is negligent or not. The Second Restatement clearly states (291-293) that an act is negligent where the social value of the imperiled interests outweighs the social value of its utility. The Third Restatement clarifies that "In most circumstances, negligence law takes into accounts and credits whatever burdens of risk prevention are actually experienced by the actor and others" (Comment j to Article 3). Neil Foster tells us that the same approach is taken by the NSW Civil Liability Act 2002 (s 5B(2)).

Richard Wright, however, states in this regard that "From a justice standpoint, the social utility of the conduct should be irrelevant if this is interpreted in a utilitarian sense. However, the social value of the conduct should be relevant when this is interpreted in the equal freedom sense that underlies the concept of justice." Well, I prefer the pluralist and integrative approach which tries to achieve both an increase in human well-being (utility) and a just and fair distribution of this utility.

In any case, an activity that cures AIDS (Jason) and emergency driving (Robert) are obviously non-negligent. They are desirable activities given their net social value. Society wants such activities to continue and negligence law should not interfere to discourage such activities. This is exactly the point made by Section 1 of the Bill and given some of the views expressed in our discussion such "a declaration" or "clarification" is really needed. Finally, If it is indeed unfair or unjust that the victim will incur the costs of activity that benefits society at large, the solution should lie not in negligence law but rather in the law of strict liability which is designed for such purposes.

Israel Gilead
Hebrew University of Jerusalem

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

<<<< Previous Message  ~  Index   ~  Next Message >>>>>