Editorial Committee of the Cambridge Law Journal

Tort Law and the Moral Law: Inaugural Lecture

Author(s): André Tunc
Source: The Cambridge Law Journal, Vol. 30, No. 2, 1972(A) (Nov., 1972), pp. 247-259
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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Cambridge Law Journal, 30 {2). November 1972, pp. 24t-259
Prlnted in Grct BrArain.

TORT LAW AND THE MORAL LAW

Inuugural Lecture *

ANDRE TUNC

THE first thought of the person who has had the good fortune to be
called to hold the Arthur Goodhart Chair of Legal Science is
naturally to express his gratitude for the honour bestowed on him, by
attempting to describe the contribution to contemporary law of the
man under whose patronage he will speak.
The task, however, proves overwhelming. Sir Arthur L. Good-
hart has published such a number of books, articles, essays and notes
that it is easier to measure his stature than to describe his works.
His extraordinary contributIon to English doctrine by his annotation
of cases in the Law Quarterly Review would itself defy assessment.
On the other hand, the thought occurs to a person concerned with
morals that he might attempt to pursue one of the paths opened by
Sir Arthur in his 1953 Hamlyn Lectures: English Law and the Moral
Law. It is one of his interests as a lawyer to consider Tort Law and
the Moral Law, or more precisely, without entering into the Hart-
Devlin controversy on the possibility of enforcing morals by law,
to try to explore the requirements of the moral law in the field of
tort.
A fundamental difficulty in this field, of course, is to avoid subjec-
tivity and to start from a notion of morals widely, if not universally,
acceptable. This may raise a serious problem, particularly at a time
of widespread controversy. Sir Arthur faced the difficulty at the
beginning of his lectures. He accepted Mr. Kneale's hypothesis that
moral judgments " are not merely expressions of our own preferences
or those of our group, but applications of a law to which all men
commit themselves when they claim to be reasonable.''l Starting
from this premise to which we subscribe on the basis of an
experience which we shall discuss laterir Arthur proceeded to
consider various concepts of moral law. Moral law as an expression
of the will of God is probably the more reliable concept for a

* This inaugural lecture by the first Arthur Goodhart visiting Professor of Legal
Science was delivered in the Law SchooIs on Friday 27 October 1972.
KneaIe, " Objectivity in Morals," Philosophy (l950), pp. 149, 163; A. L.
Goodhart, Englgs/l Law and the Moral Law (1953), pp. 2s30. Compare however
A. Ross, On Law and ]slice (1958), pp. 268-288.

247

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 248 The Cambridge Law Joarnal tl972A]

believer; but even the believer cannot expect this concep

universal recognition in the foreseeabIe future. Exper
shows that, contrary to the famous statements of Ulpia
Jacques Rousseau, intuition or instinct cannot be re]ied
source of universally accepted rules of moral law. Sir Ar
moral law on reason and deserves to be quoted at some le
. . . if we accept as our basic premise that, as man is
animal, it is natural and right for him to seek to ben
fellow-men, it then becomes the basic premise of this
that a man shall love and not hate hIs neighbour. I
that this basic premise is only a value judgment and
impossibIe to prove by reason that the opposite concI
not equally correct. But having accepted this value ju
it is then possible to develop by reason certain moral r
rational man must realise that there are rules of condu
are necessary for the good life both of the indivtdual a
community.2

Sir Arthur, after quotations from Cicero and Hugo Grotius, con-
cludes: "The type of moral law based on reasons divorced from
other authority, seems to be the one which has had most influence
in English law." 3
Perhaps one may, without seeming presumptuous, try to be
slightly more specific. For, even if Cicero did recognise 4'our
natural inclination to love our felIow-men " and saw in it ' the
foundation of justice," it was nevertheIess the Hebrew-Christian
tradition whach placed the highest value on the reguirement of
mutual love. According to this tradition, the commandment " Yoll
shall love your neighbour as yourself " 4 is equated with " You shall
Iove the Lord your God with all your heart, and with all your soul,
and with all your minds5 and is considered the basic one. Its
lltmost Importance seems more or less universally recognised, even
by men who do not believe in God and by those outside the Hebrew-
Christian tradition.
It is true that horrible individual and collective crimes still are
committed in complete disregard of the mutual love order.
:tt may not be over optimistic to regard them as deviations,
deviations which are sometimes recognised as such and repu-
diated with horror even by those who have committed them.
There is no room for complacency as long as men kill each other
in many parts of the world, as long as two-thirds of mankind are
staning, and as long as mankind devotes each year eight billion

v op. cit., p. 35
3 Op. cit., p. 37.
4 Lev. 19, 17.
5 Deut. 6. 5; Matt. 22. 3490; Mark 12. 28-31; Luke 10. 25-28; John 13. 34-35

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C.L.J. Tort Law and the Moral Law 249

dollars in aid to the underdeveloped countries (a sum which is

largely eaten up by the interest on debts) and more than 200 billion
dollars to armaments. Even so, the idea of mutual love, or the
common good, bearing in mind not only the present but also the
future of mankind, may be regarded as the basis of moral law, and
the Hebrew-Christian tradition may be the least imperfect of its
human expressions.
This conclusion does not imply that the Hebrew-Christian
tradition is satisfactory, even in its ideal form: being a human
phenomenon, it is imperfect and in constant need of research and
development (and, of course, everyone who claims to uphold its
teachings needs continually to make an effort to be less unfaithful
to them). Nor can it be said that the demands made by moral law
of the law of tort are clear. Stills the idea of mutual love, of common
good, may be the best basis we could start from when exploring the
requirements of morals in relation to the law of tort. This explora-
tion will lead us to appreciate the moral value of the fault principle
in some fields of tort law, but also its inadequacy in others.

(I) The moral value of the fault principle

One cannot study the h1story of the law of tort, starting from
the Mediterranean communities (Israel, Greece, Rome), without being
impressed by the slow, uncertain but on the whole majestic emerg-
ence of the principle that a man is liable for the damage caused by
his fault.
The principle is far from being inherently rooted in the mind of
man. For centuries it has been obscured by magic and religious
factors, by ideas of collective guilt and hereditary guiltb and by guilt
' for consequences" rather than '4 for conduct.' Canon law was
probably the major contributor to the development of the role of
intent in law. In the field of torts, progress in this area opened the
door to two other developments. FJrst, when damage is caused
unwittingly, although the author must not be punished as if he had
acted voluntarily, there is no reason why he should not have to pay
compensation for the damage. The consideration of intent, therefore,
Ied us to distinguish criminal justice from civil justice more clearly
than had previously been the case. Furthermore, while criminal
justice seems to need a list of offences (nulla poena sine lege), civil
law admits of a more general principle of compensation: a tort-
feasor must pay compensation for all damages caused by faultw even
by mere negligence.
It was probably in France in the XVIIth Century that fault came
to be accepted for the first time as the criterion of civil liability.
The great Domat writes, in his Lois civiles dans leur ordre naturel:

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 250 The Caetbridge Law Journal [1972A]

All loss and damage which may result from the deed of any
person, whether due to imprudence, carelessness, ignorance of
what should have been known, or other similar faults, however
slight, must be repaired by the man whose imprudence or other
fault has given rise to them. For he has committed a tort, even
though he had no intention to harm anyone. So, a person who
happens to hurt someone while carelessly playing ball in a place
where Xthere is a risk of injury to passers-by shall be Iiable for
the harm he has caused.

Conversely, ss If damage occurs as an unforeseen consequence of an

innocent act, as long as no fault can be imputed to the person com-
mitting that act, he shall not be liable for that consequence." Those
are the ideas that found expression in the famous Art. 1382 of the
1804 French Civil Code: " Any act whatever of a man that causes
damage to anothers obliges the man whose act caused the damage to
repair it." This principle certainly conforms with the requirements
of moral law that we should bear the consequences of our faults.6 A
Frenchman may be excused if he confesses to feeling that Germany
and the countries under its legal influence, which do not have a
comparable general principle and furthermore base liability not on
fault alone, but on fault plus uniawfulness, are prisoners of a tradition
which they have been unable to bring to ffuition.
The same feeling may be justified as regards English law. Sir
Arthur Goodhart remarks that the law " has even been reluctant to
hold that all intentional injuries involve tortious liability." 7 It is true
that most traditional torts tend to fade away in the face of the tort
of negligence, which seems to be firmly anchored on moral grounds.
As Lord Atkin said in his famous speech in Donoghue v. Stevensost:
" The liability for negligence, whether you style it such or treat it
as in other systems as a species of culpa, is no doubt based upon a
general public sentiment of moral wrongdoing for whxch the offender
must pay." 8 By contrast with the principle of French law, however,
and as expounded by Lord Atkin himself, it is still true to say that
the principle is not accepted whereby the breach of a duty to take
care obliges the tortfeasor to compensate for any damage resulting
from his negligence.9

Even though French tort aw in its basic princip]es and to a lesser

extent English tort law, seem to have espoused moral law in this way,
the matter needs further consideration.

6 On the morality of the fault principle, compare Glanville Williams, "The Aims
of the Law of Tort " (l951) 4 C.L.P. 137-176, at pp. 144 151; L. L. Fuller,
TJIe MoraZity of Law (1964), p. 167.
7 Op. cil., (sapra, n. 1) 99. 8 l1932] A.C. S6Z, 580.
9 See e.g., Winfield and Jolowicz, The Lalv of Tort (9th ed., 1971), pp. 48 60;
Salmond, The Law of Torts (lSth ed. 1969), by D. F. Heuston, pp. 254-281;
H. Street, The Law ot Torts (5th ed. 1972), pp. I01-llS; J. G. Fleming, T/e
Law of Torr.s (4th ed. 1971), pp. 133-168.

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 Tort Law and the Moral Law
251

C.L.J.

A judgment passed from the moral point of view would imply

praise or blame towards an act or behaviour, and towards a person.
However, progress in the fields of morals and psychology has con-
firmed the view that man is powerless to pronounce any such
judgment.l° Such a judgment would need to take into consideration
all the factors constitutsng " the personal equation" of an individual.
Obviously a man cannot assess the part that heredity, education,
environment, and mere circumstances have pIayed in the formation
of a character or even in the commission of an act. The function of a
human court of justice cannot be to judge a man, but only to
maintain a certain order within society an order as consistent as
possible with the dictates of justice and morals. The function per-
formed by the judge is fundamentally a social one.ll
This is the reason, why the judge's judgment is a very supefficial
one. He holds liable anyone who has departed from a standard of
conduct (that expected of the reasonable man at common law, the
honas pater-familias under French law) without enquiring into his
state of mind, or into his personaI abilities, his grievances or his
background. Though a particular case may attract endless contro-
versy, the same standards apply in principle to any person, whether
it IS someone of fu]l strength and maturity, or a child, a senile
old man, or someone who is mentally sick or psychologically
unstable. The learner driver is expected to drive as competently as an
experienced one.l2 "The hasty, awkward, or dumb man may be
held negligent for failing to meet a standard of conduct which he
does not have the capacity to meet." 13 Here, legal fault is unques-
tionably divorced from moral culpability. The Restatement of the
Law, Second, Torts, section 282 gives an explanation of the
phenomenon in defining negligence as " conduct which falls below
the standard established by law for the protection of others against
anreasonable risk of harm." 4 It is not surprising that in its evolu-
tion, the law of negllgence responds to policy considerations, which
are sometimes expressed in the decision itself.l5

'° Compare Glanville Williams, op. cil. (supra, n. 6) at pp. 141-142 As to the
Hebrew-Christian tradition, see Matt. 7.1-S; Luke 6.17, 42; Rom. 2.1-2; 1
Cor. 4.S.
For a number of contrasts between moral and legal responsibilities, see Fein-
herg, Doing and Deserving. Essays in the Theory of Responsibility (1970), pp.
3>33 (compare pp. 187 19S). Compare also R. Pound, Law and Morals (2nd
ed., 1 926).
12 Lord Denning M.R. in Nettleship v Westowl 1197l] 3 W.L.R. 370, 376. Com-
pare A.L.G., note (1971) 87 L.Q.R. 444.
13 F. James. " An Evalllation of the Fault Conccpt " 33 Tenn.L.Rev. 394405, 39S
(l965). See also O. W. Holmes, The Common Law (1881), p. 108.
4 Italics supplied.
's Compare C. R. Symmons, " The l:)uty of Care in Negligence: Recently Expressed
Policy Elements" (1971) 34 M.L.R. 394L409, 528-S41

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252 The Cambridge Law Journal [ l972A]

The fact remains that the fault principle, unrefined as it may be

from a moral point of view, neverthe]ess aves society, in many
fields of activity as much morality as can be introduced by tort law.
Not only does it provide compensation for the victim of antisocial
behaviour but it deters some fonns of anti-social conduct. Here
again, however, we should not delude ourselves Even on the
theoretical level, the fault principle is defective in many respects
from the point of view of justice: the damages bear no relatioll to
the degree of fault nor to the means of the defendant, nor do the
needs of the plaintiff receive sufficient attention, etc.lG The situation
is even worse if one considers the fault principle in its daily applica-
tion. By reason of its technicalities, and the costs and delays it
involves, the law of tort is a very imperfect instrument of compensa-
tionl7 even assuming Gompensation is possible: how would it be
possible to compensate for the loss of a child? 18 Furthermore.
human passions, whether greed, love or ambition, are the cause of
thousands of wrongs every day, and the vast majority of them will
never know any legal remedy. As a matter of fact, not only most
violent crimes, but also the great social evils (air and water pollution,
the exploitation of man through tobacco, alcohol and pornography,
housing shortage and unfair dealings) usually escape criminal as well
as civil liability Administrative reguIations certainly do much more
than tort law to protect citizens against anti-social conduct (compare
the respective values of safety and traffic regulations and the law of
tort). Still, all those failures of society in regulating human activities
may be considered more or less unavoidable deficiencies. A balance
has to be established between individual freedom and the common
good a balanco whicht whatever it is, will leave much to be desired
from the point of view of both these ideals. The fault principle
remains a necessary agent of social regulation within a certain field,
which will have to be precisely delineated.

nD Should the fsul! principle govern cricket?

Notwithstanding their devotion to the fault principIe, the drafts-
men of the French Civil Code, faithful to tradition, provided in Art.
1384-1386 for a number of strict liabi]ities: vicarious liabiIities on
the part of a father for the torts of his children during their minority
and on the part of the employer for the torts of his servants during
the time of their employment, and strict liability for damage caused

16 Compare P. S. Atiyah, Accidents, Cvntperlsation anzS the Law (1970) pp. 449-
477.
17 Compare P. S. Atiyah (supr) n. 16) pp. 49OSQ.
18 Compare A. I. Ogus, " Damages for Lost Amenities: For a Foot, a Feeltng or
a F lnction " (1972) 3S M.L.R. 1-17.

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 253
C.L.J. Tort Law aJzd the Moral Law

by animals and by falling buildings.ls In the course of the discussion,

it was recognised that these liabilities extended in their scope
beyond the fault principle. They were nevertheless considered as
grounded upon this principle and usually expressed presumptions
of fault.
The value of that approach will be discussed in a moment On
the other hand, the serious inadequacies of the fault principle under
some circumstances need to be made clear at the outset. Two
parallel cases, an English one and a French one, will illustrate this.20
The English one, Bolton v. Stone 21 has been the subject of one of
the innumerable masterly annotations of Sir Arthur Goodhart in the
L«v Quarterly Review.29 To cut short an unfortunately long story,
Miss Stone, while standing in a public road near a cricket fields
had been struck on the head by a cricket ball and injured. The
trial judge had held that the defendants, members of the cricket club,
were not guiIty of nuisance or of negligence as the ground was quite
large enough for all prastical purposes of safety: in thirty-eight years'
experience, no one had ever been injured before. A divided Court
of Appeal allowed the plaintiff's appeal, mainly for the reason that
it might have been possible to take additional measures to minimise
the risk, particularly after an alteration to the ground made in 1910.
A unanimous House of Lords, however, allowed the defendant's
appeal, for a number of diSerent reasons which left-the law in a
somewhat mysterIous state and the plaintiff impoverished by more
than £3,000.
The French case was decided in favour of the plaintiff, but may
not appear much more satisfactory.23 Two boys, respectively nine
and eleven years old, were playing football together on a common
when one of them missed the ball and in doing so threw llp some
mud with his shoe which hit his friend in one eye. What was
decided by the court of first instance does not appear in the record.
The Court of Appeal, however, decided in favour of the plaintiff

9 See F. H. Lawson, Negligence in the Civil Law (1950); A. von Mehren, The
Civil Law Sysrem (1957), pp. 339414; Amos and Walton, Infroducrion fo French
Law (3rd ed., 1967), by F. H. Lawson, A. E. Anton and L. Nearille Brown, pp.
200 238; A. Tunc, "lEe Twentieth Centuw Development and Function of the
Law of Torts in France" (I965) J.C.L.Q. 1089-1103.
20 A comparable reflection could be made, e.g., on Boyntott v. Ryan (3rd Cir
1958) 257 Fed. 70, or on Dtnne v. N. W. Cas Board 119641 2 Q.B. 806, and ils
discussion by J. A. Jolowicz " Liability for Accidents " [19681 C.L.J. S0 63, at
p. 59, or again on Cass. 2e civ, 10 Apnls 1964. Da110z, 196S, p. 169} and their
discussion hy A. Tunc, op. caJ. (supra, n. l9), at pp. I099-llOl.
21 [|95l] A.C. 850
22." IS it Cricket? " (l951) 67 L.Q.R. 460.
23 Cass. 2e civ., 1 Dec. 1965; Juris-Classeur Perioulique (1966) It.14567. See also
Rodiere, Rev.trim.dr.civ. 1966, pp. 297-298; lSunc, " L'enfant et la balle. Reflex-
ions sur la responsabilitd civile et l'assurance " Juris-Clsssez(r Periodiqae (1966)
T.1 893.

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254 The Cambridge Law Journal [1972A]

and the Cour de Cassation approved the decisio

the bail was considered a fault.
The decision is highly questionable since fault is currently defined
as behaviour which would not have been that of " a good father of
family." The decision of the Cour de Cassation amounts to saying
that " a good father of a family " never misses the bail when he
plays football or, apparently, tennis; in all likelihood, he never fai
on the snow when he skies and he wins every game that he plays. H
is indeed a lucky man: but who by these standards can claim to be
good father of a family?
The reliance of the Civil Code draftsmen on the fault principl
led to a still stranger result. When a child has committed a tort,
Art. 1384 lays down that his father answers for him, unless the father
can prove that he could not prevent the act which gave rise to tha
liability. The father's liability, therefore, is not an absolute one.
It is based on a mere presumption, and the French Cour de Cassatio
declared long ago that there were two aspects to this presumption
the father is presumed, not only to have been inefficient in the
supervision of his child at the time of the tort, but to have been l
in the upbringing he gave him. In order to rebut the presumption, he
must, therefore, prove both that he had given the child a goo
upbringing and that he was watching him with due attentiveness
Thus, to the jurist, in missing a bail, a boy not only commits a faul
but reveals that his father has brought him up badly. In the presen
case the father was not even allowed to rebut the presumption of
deficient upbringing: the Court of Appeal, whose decision wa
approved by the Cour de Cassation, considers it negligent to let boy
play football on a common without watching them. One might as
where children may play together and how even a father watching
his son could have prevented him missing the bail.
Although they differ in their outcome, the decisions of the House
of Lords and the one of the Cour de Cassation are probably, with
respect, equally frustrating from a practical or from a moral point of
view. The man in the street certainly could not approve of them
But the jurist is at pains to suggest a better solution, since a judgment
for the plaintiff in the English case would have implied that we
must all live our daily lives in a state of utmost anxiety, trying to
foresee every foreseeable event, while a judgment for the defendan
in the French case would have left the plaintiff uncompensated, which
is also unsatisfactory.
In truth, the task of the judges, in both cases, could not be
satisfactorily discharged. For the judges had to apply a law which
was not geared to the accident phenomenon. What is needed, a

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 255
Tort Law and the Moral Law
C.L.J.

recently shown by Mr. Jolowicz,24 is either a law of accident com-

pensation, or at least a philosophy of accident compensation, which
would inspire specific laws.
From a technical point of view, it is a contradiction to define
fault as a failure to behave as a good citizen, or to assert that
negligence must be judged by the standard of the reasonable man,
and yet to hold someone liable for errors which are statistically
unavoidable, even by the most considerate and conscientious citizen.
Thus trafiic accidents are currently judged on t}le basis of error,
even though research shows that the good driver commits on average
one error every two miles,25 or more than nine errors in five minutes
of city driving.20
As regards the moral law, to the extent to which we dare try to
enforce it, it demands that we bear t}le responsibility for our
decisions. But it certaialy does not demand the liability of someone
who has unfortunately been involfired in an accident by reason of
one of those errors that we all make more or less continually. Such
an accident is the result of misfortune-an unfortunate set of circum-
stance-not of a fault.
Nor, on the other hand, does moral law allow the victim of an
accident to be abandoned- to his misfortune.27 Human brotherhood
will not permit it. And since the fate of the victim cannot be entrusted
to Good Samaritans, society itself must play the role of the Good
Samaritan and take care of the injured: this is the task of
public health authorities and social security.28 Social security, how-
ever, cannot, at least for the time being and probably for many
decades to come, provide full compensation (or as full as possible a
compensation) to accident victims.29 Only insurances can provide full
compensation and still avoid placing the burden of liability on any
one person: in the form either of liability insurance or personal
insurance, it can cushion and spread the loss. Moral law therefore
requires either the establishment of a general fund for injuries and

24 Op, Cit. (supra, n. 20). Compare T. G. Tson, The Forensic Lottery (1967), R. E.
Keeton, Venturing to do Jusfgce (1969); P. S. Atiyah, op. cit. (srprafi n 16).
25 L. G. Noan, Road Trugc Accidenes. Epidemiology, ControZ and Prevenrion
(W.H.O. Public Health Papers 12, 1962), p. 51.
26 U.S.A. Department of Transportation, Driver Behwior and Accxdent Involve.-
rZlenr: *mplicatiolts for Tort Lisbility (1970), pp. 17S180.
2t Compare Glanvxlle Williams op. eX {oc. clt. (sttpra, n. 6); J. A. Jolowicz, op cit.
(suprs, n. 20) at pp. S6-57; H. Fingarette, " Some Moral Aspects of CRood
Samantanship ", and A. M. Honore, " Law, Morals and Rescue ", in the
Good Samaritan and the Las (J M. Ratcliffe ed. 1966), pp. 213-233, and
pp. 229242. s s
2a For a lega1 study of the parable of the Good Samaritan see J. D. M. I:)errett
L>aw in the New Testament (Is70), pp. 208-227.
29 Compare J. A. Jolowicz on. cit (sapra, n. 20), at p. 60.

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256 The Cambridge Law Journal [1972A]

diseases30 coupled with a continued effort to inc

of compensation it can pay or at least the enforcem
non-fault insurance for patently dangerous activ
instance) and, in addition, promotion of individu
expansion of social security.
So it appears that, where accidents are conce
requires compensation from collective sources to b
liability based on fault. Sir Arthur Goodhart has s
force against "Our Horse and Buggy Law" and
modern system of traffic victim compensation.31 Th
in its application to common errors, is especially
operates to the detriment of the victim. It is a most
to refuse him compensation or to reduce the award
error such as we all commit. The lack of perso
responsibiiity for such errors is evidenced by the
pedestrian victims of traffic accidents into age g
more than six times as many victims under the a
60 as in the 30-39 bracket.32
The traditional law of tort had accustomed the jurist to a rigid
and somewhat mechanical view of the law. Within the framework
of the French Civil Code, the person who has done something h
should not have done, is in general liable for the damage wh
results from his act; if he has done what he was allowed to do, he
has nothing to fear. But when it comes to accidents, the jurist lo
all his normal points of reference. To tell a driver that he should n
commit errors is meaningless. Morality does not require us to b
the burden of the consequences of our unavoidable errors: it doe
demand that we organise a system of compensation which w
indemnify in principle all victims, even the victims of their ow
errors.

This is not to say that the fault principle should be co

discarded in the field of accidents. Unfortunately for the
matter is most complex. If one considers, for instance
accidents, studies have shown that less than 10 per cen
injuries in one-car accidents and less than 5 per cent. of th
in multi-car accidents are associated with serious traffic offences.33
Yet serious traffic offences are committed, sometimes through error,

30 Compare T. G. Tson, op. cit. (supra, n. 24); Glanville Williams, op. cit. (supra,
n. 6) at pp. 172-175; J. A. Jolowicz, op. cit. (supra, n. 20) at pp. 62-63; P. D.
McKenzie " Report of the Select Committee on Compensation for Personal
Injury in New Zealand*' (1971) 34 M.L.R. 542-549.
si " Our Horse and Buggy Law " 49 J.Am.Soc. 26-30 (June 1965).
32 p. S. Atiyah, op. cit. (supra, n. 16) p. 151.
33 American Insurance Association, Report of Special Committee to Study and
Evaluaie the Keeton-O'Connell Basic Protection Plan and Automobile Accident
Reparations (1968), p. 16.

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 C.L.J. Tort Law and the Moral Law 257

but sometimes knowingly. Thus, justice in so far as we can adminis-

ter it, and also the deterrence objective, seem to demand, if
techeically possible, a reintroduction of liability for fault, or at least
of a certain degree of liability for fault, within a system which would
in principle protect all victims. Furthermore, a driver's record
may show involvement in an abnormally great number of accidents.
Whether this fact derives from a cextain maladjustment to driving
on his part, or frequent use of the car, perhaps in localities where the
driving risks are high, a socially equitable system of justice, and again
deterrence, would require this dnver to pay insurance premiums above
the normal rate.
On the other hand, the new law should be much simpler than
the old one, because it is more easily adapted to fit the facts. In a
recent French case where a boy had been injured by a lawnmower,
the Cour de Cassation reviewed with approval the Court of Appeal's
findings as regards t}le liabilities of: (a) the lawnmower's owner;
(b) the lawnmower's operator; (c) the uncle and aunt whom the
boy was visiting; and (d) the neighbour who had invited the boy to
spend the afternoon in his grounds. The court of appeal decision,
however, was set aside and the case sent to another court of appeal
for consideration of possible negligence on the part of the boy,
who had slipped on the grass.34 It is a tragic misconception to
believe that justice is done, that the interests of morality are satisfied,
and that the number of lawnmower accidents is reduced, by the
consideration of such a case by four successive courts, i.e., more than
twenty judges and as nearly as many practising lawyers. Morality
requires a clear legal rule as to the allocation of the risks, a rule
which would relieve the victims of the uncertainties, expense, delays
and frustrations which are the modern consequence of a blind and
servile obedience to the fault principle. It requires a constant effort
to increase the amount of compensation which the social security
system is able to provide, and a widening of the scope of strict
liability where liability insurance is available.
The ideas I have just put forward only constitute the broadest
and most vague outlines of an accident compensation law. Even
such a basic problem as the possibility of a general compensation
fund has been left untouched. My only purpose was to mark out
the area in which reliance on the fault principle is quite out of
place. This area is of the utmost importance to industrial nations:
in the United States, accidents cause 1 15,000 deaths every year,
more than 10 million iniuries involving long-term disablement, and a
loss over 25 billion dollars. The need to divorce accident law from

34 Cass. 2e civ., 3 Nov. 1971; Dal10z, 1972 Som. 31.

C.L.J.-3

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 258 The Cantbridge Law Journal [1972A3

tort law had been understood in the second part of the XIXth
Century, owing to the sharp nse in the number of accidents which
resulted from the lndustrial revolution. This need has been partly
satisfied as regards industrial accidents, but it came to the fore again
a few decades ago because of the increasing predominance of traffiic
accidents. To quote Sir Arthur Goodhart: "There is much to be
said for the recent view, which has received strong support in
Australia and in the United States, that the law of tort ought to be
based more on responsibility than on negligence Nor is this a novel
principle in Great Britain as much of the law concerning factories
is based on it. When it was first introduced there were strong
protests based on the argument that such liability was unjust to the
factory owner, but it is now universally recognised that from the
social standpoint it is fully justified. If this is true of the factory
owner why is it not equally true of the owner of a motor vehicle,
for the vehicular accidents far outnumber the factory ones?" 85
Though it seems clear that the need for a self-contained accIdent
law or a philosophy of accident laws is beyond dispute, the task of
delimiting the domains which should be governed by the fault
principle and by accident law respectively, presents great difficulties.
After all, the tort of negligence appeared and developed in response
to the phenornenon of accidents. The man in the street may have a
more accurate approach to the facts when he speaks of a traffic
accident, i.e., an essentially fortuitous misfortunefi than the jurist who
asks by whose fault the accident occurred. Yet, even as regards
traffic accidents, as already pointed out, not only errors are present
alongside the fortuitous element, but more or less careful driving
and even sometimes reckless driving and the criminal creation of
risks. Furthermore, the phenomenon of accidents goes much beyond
traffic and lawnmower accidents, if we equate human errors with
events of chance as both being statistically unavoidable, or at least
if we consider that in the present day it is only unfortunate and
fortuitous combinations of circumstances that cause human errors
to result in harm. For instance should the activities of physicians
and surgeons be governed by the fault principle or fall within the
scope of accident law? 36 According to research conducted in the
United States, errors seem to be an inevitable by-product of human
activity, in the medical field as anywhere else. If this is so, one
might base compensation for medical and surgical mIshaps on a
philosophy of accident law. One could, for instance, devise a system
of compulsory insurance for the benefit of patients, covering all

35 A.L.G., (t971) 87 L.Q.R. 4SI.

36 Compare C. A. Wright, "Th
44 61, espes:ially pp. 4W7.

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C.L.J. Tort L=w and the Morul lfiw 259

palpably abnormal results of medical or surgical intenention. When

the insurance scheme needed to be used the physician or surgeon
might have to send a report both to the insurer and to a college
of colleagues. The latter, taking into account not only the report on
the caseJ but also the practitioner's record, might, if justified, apply
administrative sanctions, or authorise the insurer to exercise a right
of redress against the practitioner or even suggest a crimInal
prosecution. An increase in ivIsurance premiums might even become
automatic in cases where the practitioner made excesstYe demands
on the insurer
Although it is difficult to establish with precision the border-line
between the respective fields of a tort law mainly founded on fauIt
and of an accident lamr, two princlples at least seem to emege with
sufficient clarity from the preceding discussIon. On the one hands
when someone has taken a deliberate decision, the moral law
demands that he bear the responsibility for what he has done: I
mus$ answer for what I wnte, as a businessman must answer for the
means of compeXtion he chooses. On the other hands when an
accident has occurred, the moral law demands as a matter of priority
that the victim be indemnified It is true that accidents are rarely
free from the intenention o£ human factoe, and that if errure
humanum est, our attitudes} and our efforts to learn and to care for
others, will inevitably influence the number of euors we commit
in our daily lives. To the extent to which it is possible in 11uman
society-a point which has been earlier calIed into question3ur
behaviour should bring us reward or punishment. It is difficult to
accord to each of these demands of the moral lasv its proper place
and to see which combination is the most appropriate in the various
fields of human activity. This may be the main challenge addressed
to the tort jurist by the contemporary world.

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