Fictions in Tort

© Springer International Publishing Switzerland 2015
Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_12

12. Fictions in Tort

James Lee 

King’s College London, Dickson Poon School of Law Somerset House East Wing, London WC2R 2LS, UK



James Lee


This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure (beginning with Fairchild v Glenhaven Funeral Services and considered most recently in The ‘Trigger’ Litigation). These cases have revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning.

A version of this paper was presented as the Inaugural Public Lecture of the Private Law Discussion Group at Trinity College Dublin, funded by the generosity of the Trinity College’s Visiting Professorships and Fellowships Benefaction Fund. I thank all those who attended the lecture, and I am very grateful to Dr Niamh Connelly, Dr Maksymillian Del Mar, Sarah Fulham-McQuillan, Professor Simon Lee, Dr Margaret Martin, Dr Eoin O’Dell, Dr Desmond Ryan and Professor William Twining for helpful comments. Any errors are my own.

12.1 Introduction

Stark examples of fictions in modern English tort law are to be found in recent cases on causation . In Part 2 of the paper, we shall consider the relevance of counter-factual inquiries to the ingredients in the tort of false imprisonment , in R (Lumba) v Secretary of State for the Home Department 1 and Kambadzi.2 The other line of authorities, to which the majority of the paper is devoted, concerns causation in negligence , and the reasoning in Sienkiewicz v Greif (UK) Ltd 3 and Durham v BAI (Run Off) Ltd (Employer’s Liability ‘Trigger’ Litigation) 4 will be examined in Parts 3 and 4. The area has proven to be one of the ‘most intractable and recurrent problem[s] in the recent history of the common law of torts’ (Stevens 2009, p. 645). We shall see that the arguments in the causation cases map on to the controversies which run through this collection, relating to the essence of what a fiction is.

There are many other aspects of the law of tort which one might choose for an essay on legal fictions. Much work, for example, has been undertaken on the contingent relationship between the now abolished forms of action5 and the operation of fictions, notably in the field of conversion and other torts relating to the interference with property.6 Several other contributions to the collection consider this historical theme, especially those of Professors Lobban7 and Sparkes.8 Instead, therefore, I propose to consider contexts where the ‘fictiveness’ is not derived from the forms of action, but rather directed at an element (or putative element) of a claim, as considered by our highest court.9

There often seems to be a tendency for ‘fiction’ to be used as a term of disparagement in legal argument (Del Mar 2013; Chap. 7, p. 498), indicating that the user of the fiction is guilty of the supposedly ‘diabolic tendency’ to manipulate language (Birks 1986, p. 83). In 2007, Lord Nicholls of Birkenhead took aim at the device10: ‘I would like to think that, as a mature legal system, English law has outgrown the need for legal fictions’ (OBG v Allan 2007, para 229), because such ‘fictions, of their nature, conceal what is going on. They are a pretence’ (OBG v Allan 2007, para 228). And in some contexts, fictions can be properly criticised if they involve distortions of existing concepts, or if they are used solely for teleological justifications in certain decisions (Lee 2014).

But, as Del Mar argues in this volume, ‘legal fictions… when used wisely, are inherently dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability’ (Chap. 11, p. 227). It is hoped that this essay provides some support for that proposition, especially in the context of causation , and for Del Mar’s plea for patience with fictions. In what follows, we shall also consider the extent to which fictions in this area are a characteristic legal device (Fuller 1930–1931, p. 363). For the selected cases are notable not only for judicial creativity, but also for the debate between the judges about whether fictions are indeed being used, and if so, what it means to deploy them.

I shall demonstrate that the regularity of fictions (and of accusations of the use of fictions) suggest that we can understand them to be a crucial aspect of common law reasoning. And it is perhaps fundamental to the assessment of compensation in tort: in asking what the claimant has lost, we are necessarily asking what would have happened if the tort had not been committed.11 The chapter will conclude by arguing that it is crucial to appreciate the utility, and perhaps power, of fictions in facilitating the development of the law, whether judicially or by legislation.

12.2 Counter-factual Imprisonment?

In this section, I wish to examine the approach to a particular counter-factual problem for the tort of false imprisonment , as considered recently the Supreme Court in a pair of decisions from 2011 . The tort of false imprisonment, as a species of trespass to the person, is actionable per se: the claimant need not demonstrate that they have suffered any harm. They need only show an intentional, complete restriction of their freedom of movement, and that this detention was without lawful justification .12 But does it matter in such a case if it is established that the claimant would have been detained even if the defendant had acted lawfully? If it does matter, is the point properly taken into account at the stage of liability or that of damages?13

12.2.1 Lumba

R (Lumba) v Secretary of State for the Home Department concerned claims by foreign nationals who were due to be deported upon completion of their prison sentences for various crimes. The men were detained on the authority of the Home Secretary under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 prior to their deportation. Mr Lumba, a Congolese national, was convicted of various offences including wounding with intent, and was sentenced to a term of four years’ imprisonment. The day before his scheduled release, he was notified that the Secretary of State had authorised his detention pending deportation. Mr Mighty, a Jamaican national, was imprisoned in respect of offences including possession with intent to supply a Class A drug. The Secretary of State had a published policy on the detention of prisoners pending deportation, which referred to a ‘presumption’ in favour of release. However, it transpired that a very different policy had been applied in the relevant period, which was a ‘near blanket ban on release’ (Lumba 2011, para 5, Lord Dyson JSC, quoting a document from the then Home Secretary). The claimants were detained pursuant to this secret, unlawful policy, and brought claims in false imprisonment . However, it was accepted that, had the Home Secretary applied the published policy, the men would still have been detained: ‘each claimant had a very bad criminal record and would undoubtedly have been kept in custody under the Secretary of State’s published policies.’ (Lumba 2011, para 195, Lord Walker).

There were two principal points of relevance14 for the Court to address. First, given that the inevitability of the men’s detention had the published policy been applied to them was accepted, did that mean that their detentions were lawful? This is the ‘causation test’ question. Second, if they were able to recover in principle, what was the extent (or nature) of the damages to which they were entitled? This is the ‘damages’ question.15 The Supreme Court divided 6:3 on each point, but with different majorities. The ‘Causation Test’ Point

The majority of the Supreme Court held that the claimants did not have to show that they would not have been detained, on the basis that ‘all that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant’ (Lumba 2011, para 65, Lord Dyson) and it is then for the defendant to justify it. The importance of the right to liberty, with the attendant need to scrutinise the executive power to detain, requiring that it be exercised lawfully, compelled the conclusion that there be liability in such cases. Lord Dyson gave the leading majority judgment and dismissed the existence of

any defence of causation so as to render lawful what is in fact an unlawful authority to detain, by reference to how the executive could and would have acted if it had acted lawfully, as opposed to how it did in fact act. (Lumba 2011, para 62)

The view of the majority on the causation test is therefore focused on the ‘counter’ in ‘counter-factual’ : the Secretary of State’s protestations about what they could or would have done are not relevant, because it did not actually happen. This is not an ‘over-determination’ case, where there are two sufficient causes of the claimant’s detention, counting both the unlawful decision of the Secretary of State and their possible lawful decision, because only one of those decisions was really made. The emphasis is on the ‘could’ and the conditional in the above quotation:16 ‘[detention] cannot be justified on some putative basis, unrelated to the actual reasons for it’ (Lumba 2011, para 242, Lord Kerr). To allow the Secretary of State’s argument would be to ignore what actually happened and instead to admit a fiction: it would involve putting the ‘cart before the horse’ (Lumba 2011, para 197, Lady Hale).

On the other hand, the minority were concerned that the majority approach seems somewhat fictive: that it ignores the accepted inevitability—though, as a counter-factual , it cannot be said to be the ‘reality’—of what would have happened had the Secretary of State acted lawfully. The necessary result of the application of the published policy would have been the detention of the claimants . The counter-factual has, for the minority, more power than the majority admit.

Lord Brown in particular vehemently dissented. In his Lordship’s view, the majority’s approach had a ‘beguiling simplicity and apparent purity’, but would ‘seriously devalue the whole concept of false imprisonment’ (Lumba 2011, para 343). In his Lordship’s view, to say that the claimant can sue in false imprisonment even though he would have been detained anyway, but then to ‘deny compensation’ (Lumba 2011, para 344) because they would have been detained anyway, is illogical. It is tantamount to saying that the detainee was simultaneously ‘both rightly and wrongly imprisoned’ (Lumba 2011, para 344). Instead, it would be better to refuse liability in the first place: ‘the detainees… were rightly detained and it would have been wrong to release them’ (Lumba 2011, para 361). The Damages Point

On the damages point, a different majority of Justices held that it was relevant to take into account the fact that the men would inevitably have been detained in awarding only nominal damages: ‘they suffered no loss or damage as a result of the unlawful exercise of the power to detain’ (Lumba 2011, para 95, Lord Dyson). Although the men were able to claim, the counter-factual problem was relevant to the damages which they received. The majority rejected the contentions either that a separate head of vindicatory damages existed in English law, or that such a head should be created (Lumba 2011, para 237, Lord Collins). As Lord Kerr put it, the ‘the actual impact on the individual who has been falsely imprisoned … should feature prominently’ when assessing damages (Lumba 2011, para 253).

The minority of Lady Hale, Lords Hope and Walker accepted that the claimants could not be compensated for loss which they had not suffered. But the dissenting Justices desired something more than nominal damages, ‘not [to] purport to compensate him for harm or to punish the defendant for wrongdoing but simply to mark the law’s recognition that a wrong has been done’ (Lumba 2011, para 213, Lady Hale). They would have awarded a ‘conventional’ sum of £1000, on the basis of such vindication. Lumba Overall

In her contribution to this volume, Petroski observes the relationship between judicial disagreement over fictions and the multiplicity of judgments in decisions of the United States Supreme Court (Chap. 7, pp. 496–498). The United Kingdom Supreme Court decision in Lumba also speaks to this phenomenon. Across the two main points of the appeal in Lumba, the nine Justices of the Supreme Court fall into three groups of three when it comes to the relevance of the counter-factual . In the majority on both points—Lords Dyson, Collins and Kerr—hold that the counter-factual should not be relevant to liability but should mean that the claimant is entitled only to nominal damages. The three of the ‘causation test’ majority who dissented on the damages point—Lord Hope, Lord Walker and Baroness Hale—would seem to agree that the claimant cannot claim any loss because of the counter-factual, but would argue that in such circumstances a special award is necessary in order to ‘vindicate’ the claimant’s rights which would otherwise be insufficiently protected. The minority on the causation test would have held the counter-factual to be a bar to a claim at all, and in fact have concerns about the award of nominal damages in the case, as it portrays liability in an important tort as established merely on the basis of a technicality (Lumba 2011, para 343, Lord Brown). For Lords Phillips, Brown and Rodger, the two stages of analysis are inextricably linked.

12.2.2 Kambadzi

Two months after the decision in Lumba, the Supreme Court considered a variation on these themes in R (Kambadzi) v Secretary of State for the Home Department. The case had been heard by a five-Justice panel before Lumba, but judgment was delayed in Kambadzi so that the parties could make submissions on the basis on the reasoning in Lumba. The appellant, Mr Kambadzi, had been convicted of common and sexual assault. He was sentenced to a year’s imprisonment, and before he became eligible for release a deportation order was made against him. Thereafter, his detention had not been subject to sufficiently regular review as required by rule 9(1) of the Detention Centre Rules 2001 and the Secretary of State’s published policy.17 Without good reason, the necessary reviews were either not carried out at all or not carried out correctly. The appellant sued in false imprisonment , arguing that his detention had been unlawful because of the failure to comply with this procedure.

The Court was divided, along the same lines as in Lumba. The majority, Lord Hope DPSC, Baroness Hale and Lord Kerr, had been in the majority on the causation test point in Lumba. We may note that, although Lord Hope and Baroness Hale were in the minority on the damages point in Lumba, it was accepted that, in the light of that decision, there was no prospect of establishing an entitlement to vindicatory damages in Kambadzi. Lords Brown and Rodger again dissented.

For the majority, the review was a prerequisite of the continued authority to detain. ‘Unless the authority to detain was renewed under the powers conferred by the statute [the appellant] was entitled to his liberty’ (Kambadzi 2011, para 54, Lord Hope). Without it, the detention was unlawful. On the other hand, ‘the continued detention could at all times have been justified by the Secretary of State had he been faced with an application for judicial review’ (Kambadzi 2011, para 34, Lord Hope). The position is succinctly summarised by extracting from two paragraphs of Lord Kerr’s judgment: ‘causation is not a necessary ingredient for liability’ but ‘is relevant to the question of the recoverability of damages’ (Kambadzi 2011, paras 88–89). The possible conclusion that only nominal damages should be awarded ‘does not affect the issue of principle’ (Kambadzi 2011, para 56). Furthermore, Lord Hope declined to ‘foreclose… the possibility that the appellant [may be] entitled to more than a purely nominal award’ (Kambadzi 2011, para 55).

Again, for the minority, Lord Brown was almost incredulous in his dissent. His judgment contains a reassertion of his reasons in Lumba and his belief that the outcome ‘devalue[s] the whole concept of false imprisonment’ (Kambadzi 2011, para 108). (His Lordship noted that the first 23 paragraphs of his judgment were an expression of his view before the decision in Lumba). But Lord Brown was in any event of the view that the majority approach in Lumba did not dictate that the claimant must succeed in Kambadzi. Mr Kambadzi had been lawfully detained in the first place; the only defect here was a procedural one in relation to the continuing review. As in Lumba, the dissent turns on a different view of the status of the counter-factual that, had the reviews been correctly carried out, the claimant would still have been detained. The majority, as we have seen, held that the lawfulness of the claimant’s detention needed to be re-established at each review. The dissentients by contrast view the procedural requirement as giving the detainee the opportunity to establish that they should be released. For that reason, Lord Brown viewed it as ‘still more undesirable’ to find liability in Kambadzi than it had been in Lumba (Kambadzi 2011, para 115). Indeed, the implications of the respective approaches in Lumba for a case such as Kambadzi were expressly considered as hypothetical examples given by some of the Justices in the former case.18 And, in the case of the minority, there was the suggestion that the case would be less compelling: Lord Phillips viewed the ability to recover in a case of a failure to review the detention to be an ‘extraordinary result’ (Lumba 2011, para 336).

12.2.3 Reflections on the Counter-Factuals

These two cases demonstrate confusion over how, if at all, ‘causation’ is relevant to liability in false imprisonment . Our focus tends to be on loss when discussing causation: ‘[tort] liability in general is standardly thought to require successful application of the “but for” test of causation in fact’.19 But on the majority view of false imprisonment, causation is only applicable insofar as it is established that the defendant ‘caused’ the imprisonment in a narrow sense: to quote from Bird v Jones (1845, 115 ER 668), ‘the acts will amount to imprisonment neither more nor less from their being wrongful or capable of justification .’20 The counter-factual problem consequently raises questions about the essence of the tort of false imprisonment and a rights-based analysis of the wrong, as it is not clear that we have a counter-factual baseline at all.21

If the ‘causation test’ is not to operate as a control mechanism, we have to reflect on how we attribute responsibility and impose liability in the tort . It must be recognised that there remains some uncertainty as to the degree or nature of public law error that will ‘justify resort to the common law remedy’ (Kambadzi 2011, para 40; Steel 2011, p. 529). Indeed, one of the public errors in Kambadzi was deemed insufficient to establish compelled the conclusion that there be liability in such cases for one month in December 2007 the review was ‘carried out by an official of the wrong grade’ (Kambadzi 2011, para 60).

The analysis above has shown that the counter-factual or fictional scenario is central to the cases. Underlying the debate in the Lumba and Kambadzi, especially in the minority judgments and the majority view on the damages point, are apparent misgivings about seeming to ignore the ‘fact’ (or ‘counter-fact’) that the claimant would still have been imprisoned. It is a more substantial concern than the mere feeling that the given appellant ‘may not be a very nice person’ (Kambadzi 2011 para 61, Baroness Hale). And most of the Justices clearly believed that the counter-factual ought to be taken into account in some way.22 Even the minority on the damages points accept that the claimants could not show that they had suffered any loss: hence the perceived need to identify the special character of the wrong with a novel award of vindicatory damages.23 The Justices’ divergent analyses on the two points are then ultimately based on an acceptance that, at least in some sense, the alternative scenario is relevant to the resolution of the case.

12.3 Fictional Causation in Negligence? Context

The liability of employers for deaths caused by mesothelioma has preoccupied courts and legislators over recent years. (Trigger Litigation 2012, para 1, Lord Mance).

In this section, we shall turn to examine the more traditional context of causation debates: the tort of negligence . A decade of authorities at the highest level since the decision in Fairchild v Glenhaven Funeral Services 24 has seen the Law Lords and now Supreme Court Justices grapple with principles of causation and legal fictions.25 What is also conspicuous is that the judges have not been in agreement on what the law is, or as to the extent to which they are using fictions at all. Nor is the problem limited to England (Stapleton 2006). Del Mar notes towards the end of his paper that this area is an excellent example of a modern fiction (Chap. 11, pp. 460–462): in this section, I shall explore the case law in further detail,26 particularly in the light of the Supreme Court’s decision in the Employers’ Liability ‘Trigger’ Litigation.27

First, it is necessary briefly to establish some background. It is axiomatic that, in order to establish a successful claim in the tort of negligence , a claimant must demonstrate that the defendant owed them a duty of care, that the duty was breached, and that that breach caused actionable harm. At the causation stage, the ‘but for’ test must be satisfied: ‘but for’ the defendant’s breach of duty, would the claimant have suffered their injury or loss (Barnett v Chelsea and Kensington Hospital Management Committee)?28 We are always directing our inquiry towards the question of what would otherwise have happened. In the relevant cases, we shall see that the judges expressly advert to the possible resort to fictions in attempting to solve the problems.

12.3.1 Fairchild

The case law from Fairchild onwards has concerned claims by victims of mesothelioma, which is an invariably fatal cancer caused principally by exposure to asbestos. The claimants in Fairchild itself had been exposed to asbestos while working for more than one employer and had developed mesothelioma. Scientific knowledge did not enable the determination of the source of the causative asbestos, because the aetiology of mesothelioma is uncertain (and the precise understanding of the uncertainty has itself evolved in parallel with the litigation).29 Thus, where a claimant had been exposed to asbestos in breach of duty by more than one employer (only one of whom may now be solvent and worth suing), and subsequently developed mesothelioma, it was impossible to identify the source of the particular exposure which had caused the cancer. There was an ‘evidentiary gap’ and the claimant could not prove causation according to the ‘but for’ test, because it was possible that the causative asbestos fibres had come from another employer.