Street-Level Tort Law: The Bureaucratic Justice of Liability Decision-Making

Modern Law Review

Volumn 75, Issue 3, 2012, Pages 347-367

  Halliday, Simon ^a,b,c,d   Ilan, Jonathan ^a,b,c,d   Scott, Colin ^a,b,c,d  

^a UNIVERSITY OF YORK   (United Kingdom)

^b UNIVERSITY OF NEW SOUTH WALES   (Australia)

^c UNIVERSITY OF KENT   (United Kingdom)

^d UNIVERSITY COLLEGE DUBLIN   (Ireland)

Author keywords

Bureaucratic justice; Insurance; Negligence; Public authorities; Tort

Indexed keywords

EID: 84860534585     PISSN: 00267961     EISSN: 14682230     Source Type: Journal    
DOI: 10.1111/j.1468-2230.2012.00904.x     Document Type: Article

References (63)

1. For a recent exception, see T. T. Arvind and J. Steele (eds), Tort Law and the Legislature (Oxford: Hart Publishing, 2012 forthcoming).
2. Most of this work is doctrinal in method. However, some of the empirical work on the effects of state liability is similarly court-focused, framed in terms of better informing the empirical elements of judicial reasoning. See J. Hartshorne et al, ' Caparo under Fire: A Study into the Effects upon the Fire Service of Liability in Negligence' (2000) 63 Modern Law Review 502; B. Markesinis and J. Fedtke, 'Damages for the Negligence of Statutory Bodies: The Empirical and Comparative Dimension to an Unending Debate' (2007) Public Law 299.
3. Eg J. L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven: Yale UP, 1983); J. F. Handler, The Conditions of Discretion: Autonomy, Community, Discretion (New York: Russell Sage, 1986); M. Adler, 'Social Security and Social Welfare' in P. Cane and H. Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford: OUP, 2010).
4. Eg H. L. Ross, Settled Out of Court (Hawthorne: Aldine, 1980); T. Goriely et al, More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour (London: The Law Society and the Civil Justice Council, 2002); R. Lewis, 'Insurers and personal injury litigation: acknowledging the elephant in the living room' (2005) JPIL 1; T. Baker, 'Insurance in Sociolegal Research' (2010) 6 Ann Rev L & Soc Sci 433.
5. Eg R. Miller and A. Sarat, 'Grievances, Claims and Disputes: Assessing the Adversary Culture' (1981) 15 Law & Society Review 252; H. Genn, Paths to Justice: What People Do and Think about Going to Law (Oxford: Hart Publishing, 1999); H. Genn and A. Paterson, Paths to Justice in Scotland: What People in Scotland Do and Think about Going to Law (Oxford: Hart Publishing, 2001).
6. See also M. Suchman and L. Edelman, 'Legal Rational Myths: The New Institutionalism and the Law and Society Tradition' (1996) 21 Law and Social Inquiry 903.
7. Accounts Commission for Scotland, A Costly Trip? Management of Road Safety Defects (Accounts Commission for Scotland, 1996).
8. This seems also to be the case in Germany, for example. See B. Markesinis and J. Fedtke, n 2 above.
9. Eg Stovin v Wise [1996] AC 923; Gorringe v Calderdale MBC [2004] UKHL 15.
10. Lewis, n 4 above.
11. Two of our three Scottish case study authorities were able to provide data on this. In 2008-9, 82.5 per cent of claims against 'Sodor Council' related to vehicle damage. The equivalent figure for 'Knockbrex Council' between 1998/99 and 2004/05 was 70 per cent. This picture supports more general findings: see Accounts Commission for Scotland, n 7 above; K. Atkinson, Highway Maintenance Book (London: Thomas Telford Publications, 1996).
12. 'Knockbrex Council' was the only case study authority which had complete data on settlement sums. Its average settlement sum in relation to vehicle damage claims between 1998/99 and 2004/05 was £357.81. According to Markesinis and Fedtke, n 2 above, road claims in Germany are similarly of low value.
13. D. McBarnet Conviction (London: MacMillan, 1981).
14. Mashaw, n 3 above.
15. R. Kagan, 'The Organisation of Administrative Justice Systems' in M. Adler (ed), Administrative Justice in Context (Oxford: Hart Publishing, 2010).
16. M. Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage, 1980).
17. See, for example, V. L. Nielson, 'Are Street-Level Bureaucrats Compelled or Enticed to Cope?' (2006) 84 Public Administration 861; S. Halliday et al, 'Street-Level Bureaucracy, Interprofessional Relations and Coping Mechanisms: A Study of Criminal Justice Social Workers in the Sentencing Process' (2008) 31 Law & Policy 405; M. Hertogh, 'Through the Eyes of Bureaucrats: How Front-Line Officials Understand Administrative Justice' in M. Adler (ed), Administrative Justice in Context (Oxford: Hart Publishing, 2010).
18. H. L. Ross, n 4 above, 21.
19. R. Lewis, n 4 above, 6.
20. T. Baker, 'Liability Insurance as Tort Regulation: Six Ways that Liability Insurance Shapes Tort Law in Action' (2005) Connecticut Insurance Law Journal 12(1) 1.
21. Mashaw, n 3 above, 47.
22. Although Mashaw's book is entitled Bureaucratic Justice, he actually used the phrase 'administrative justice' to describe this process of determining public law rights and entitlements at street-level. Given that our discussion includes liability decision-making in relation both the private and public sector, we use the term 'bureaucratic justice' to avoid any inference that our focus is limited to the public domain.
23. J. L. Mashaw, n 3 above, 24.
24. The work of Mashaw and Kagan are explored further in S. Halliday and C. Scott, 'A Cultural Analysis of Administrative Justice' in M. Adler (ed), Administrative Justice in Context (Oxford: Hart Publishing, 2010) where they are both situated in an wider analytical framework which draws on grid-group cultural theory.
25. M. Weber, The Methodology of the Social Sciences (New York: Simon and Schuster, the Free Press, 1949).
26. J. Mashaw, Due Process in the Administrative State (New Haven, Yale UP, 1985)
27. rd ed, 2009).
28. See Baker, n 4 above.
29. H. Street, 'Tort Liability of the State: The Federal Tort Claims Act and the Crown Proceedings Act' (1949) Michigan Law Review (47) 341. For a recent review of current administrative compensation schemes see C. Harlow, 'Rationalising Administrative Compensation' (2010) Public Law 321.
30. 'A Compensation Culture? A Comparative Investigation of the Risk Management of Legal Liability Risks in Public Services in Scotland and Ireland'. We are grateful to the funding agencies - the Economic and Social Research Council (Award Reference RES-062-23-0492) and the Irish Research Council for Humanities and Social Sciences for their support of the research. Further analysis from the project can be found at S. Halliday, J. Ilan and C. Scott, 'The Public Management of Liability Risks' (2011) 31(3) Oxford Journal of Legal Studies 527.
31. In 2008, PIAB was re-branded 'InjuriesBoard.ie'. For a recent assessment of the work of PIAB, see J. Ilan, 'Four Years of the Personal Injuries Assessment Board: Assessing its Impact' (2009) 9 Judicial Studies Institute Journal 54.
32. In relation to the UK, see, for example, S. Lloyd-Bostock, and L. Mulcahy, 'The social psychology of making and responding to hospital complaints: An account model of complaint processes' (1994) 16 Law and Policy 185; H. Genn, Paths to Justice: What People Do and Think about Going to Law (Oxford: Hart Publishing, 1999); D. Cowan and S. Halliday, The Appeal of Internal Review: Law, Administrative Justice and the (Non-)Emergence of Disputes (Oxford: Hart Publishing, 2003).
33. W. Felstiner, R. Abel and A. Sarat, 'The emergence and transformation of disputes: naming, blaming, claiming ...' (1980-1) 15 Law and Society Review 631.
34. For a brief overview of the significance of New Public Management for governance arrangements, see A. Gamble and R. Thomas, 'The Changing Context of Governance: Implication for Administration and Justice' in M. Adler (ed), Administrative Justice in Context (Oxford: Hart Publishing, 2010).
35. J. Hood and P. Young, 'The Risk Management Implications of Outsourcing Claims Management Services in Local Government' (2003) 5 Risk Management 7.
36. Hood and Young, ibid.
37. Accounts Commission for Scotland, n 7 above.
38. Local authorities in our study also saw certain drawbacks to outsourcing of claims handling, particularly the lack of control over the final decision. Many local authorities have some distaste for 'economic' settlements where the matter is decided on financial grounds rather than in relation to whether there is legal liability.
39. cf Hood and Young, n 37 above.
40. Ross, n 4 above; Goriely et al, n 4 above. The existence of simplified rule application and routinised decision-making is also a familiar finding within the study of public administration and the socio-legal study of discretion. See, Lipsky, n 16 above and K. Hawkins, 'Using Legal Discretion' in K. Hawkins (ed), The Uses of Discretion (Oxford: OUP, 1992).
41. See also R. Lewis, 'How Important Are Insurers In Compensating Claims for Personal Injury In The UK?' (2006) Geneva Papers on Risk and Insurance 323.
42. (1798) Mor 13189 and 13967.
43. This duty is now contained in the Roads (S) Act 1984, s 1. The position in England and Wales has been made comparable to the Scottish position in this regard. Local authorities in England and Wales, equally, are under a statutory duty to maintain the highways. See G. Dworkin, 'Highways (Miscellaneous Provisions) Act, 1961: The Deathknell of Nonfeasance Immunity for HighwayAuthorities' (1962) 25 Modern Law Review 336. The duty is currently contained in the Highways Act 1980, s 41.
44. (1911) SC 1226, 1248.
45. Roads Liaison Group, Well Maintained Highways - Code of Practice for Highway Maintenance Management (London: The Stationery Office, 2005).
46. See, for example, Hutchison v North Lanarkshire Council [2007] CSOH 23 and Nugent v Glasgow City Council [2009] CSOH 88.
47. See Harrison v Derby City Council [2008] EWCA Civ 583.
48. Compare, for example, the approach of the courts in assessing defects in the following cases: McClafferty v British Telecommunications 1987 SLT 327; McMillan v Lord Advocate 1991 SLT 150; McLaughlin v Strathclyde Regional Council 1992 SLT 959; Hutchison v North Lanarkshire Council n 48 above; Nugent v Glasgow City Council n 48 above.
49. Roads Liaison Group, n 47 above, 96.
50. M. Lipsky, Street Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 1980); S. Halliday, Judicial Review and Compliance with Administrative Law (Oxford: Hart Publishing, 2004).
51. Most road inspectors we encountered in the study had previously worked as road repair officers.
52. We have inferred that the clustering of Irish authorities with excess levels of €6, 300 is a result of straight conversions from the Irish Punt figure that was used prior to adoption of the Euro on 1 January 2003. The exchange rate for 500 Irish Punts on that day was € 634.869.
53. Roads Act 1993, s 13.
54. Road Traffic Act 1961, s 95.
55. Civil Liability Act 1961, s 60.
56. Section 2(3).
57. Flynn v Waterford County Council [2004] IEHC 335.
58. See n 42 above.
59. Local authorities renew insurance policies on a 3 to 5 year basis. The speed of decision-making by claims handlers is an issue which they consider, amongst others. Equally, local authorities can impose targets on claims handlers in terms of speed of decision-making. Insurers are responsive to such targets, knowing that their performance can be of significance in the next round of tenders.
60. Baker, n 4 above.
61. Baker, n 21 above.
62. Ross, n 5 above, 134-135.
63. See also P. S. Atiyah, The Damages Lottery (Oxford: Hart Publishing, 1997).