The Emergence of Cost-Benefit Balancing in English Negligence Law

132 Pages Posted: 19 Jun 2002

See all articles by Stephen G. Gilles

Stephen G. Gilles

Quinnipiac University School of Law

Abstract

The subject of this article is whether, and to what extent, modern English negligence law relies on cost-benefit balancing. Some scholars have claimed that actors are subject to liability under English negligence law when they create a substantial foreseeable risk of harm to others, without regard to the costs of avoiding that risk. A close look at the leading English decisions (most of which date from the period 1945-1970) shows that this account is incorrect. Reasoning from the fundamental principle that negligence is failure to act as a reasonably prudent person would have acted, the English judiciary has repeatedly endorsed the proposition that a reasonable person balances the costs and benefits of avoiding foreseeable risks of harm to others. The practical importance of this proposition varies: in some contexts, such as workplace accidents, English judges -- who both find the facts and apply the law in negligence cases -- routinely and explicitly engage in balancing; in other contexts, such as automobile accidents, some judges balance, while others simply imagine what a reasonable person would have done. In no context, however, is balancing forbidden and liability imposed solely for creating a substantial foreseeable risk. On the other hand, when they do balance, English judges often say that a precaution should be taken unless its costs are disproportionately (not merely marginally) greater than its benefits. English law thus makes cost-benefit balancing a major component of the reasonable person standard, while leaving substantial room for divergent intuitions about fault and responsibility.

JEL Classification: K00, K13

Suggested Citation

Gilles, Stephen G., The Emergence of Cost-Benefit Balancing in English Negligence Law. Chicago-Kent Law Review, Vol. 77, No. 3, 2002, Forthcoming. Available at SSRN: https://ssrn.com/abstract=315459 or http://dx.doi.org/10.2139/ssrn.315459

Stephen G. Gilles (Contact Author)

Quinnipiac University School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States
203-582-3284 (Phone)
203-582-3244 (Fax)

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