September 15, 2021

There was a time when even our more pessimistic experts thought the pandemic would be over by Christmas, thanks to the UK’s high vaccine uptake. But, with winter looming, the Government is threatening to, among other things, make masks mandatory again.

This “plan B”, outlined yesterday by Sajid Javid, is grist to the mill of the moralists who rage that everyone must be jabbed. Demands for near-compulsory vaccination have become ever more strident. You might get seriously ill, the argument goes. The hospitals might fill up. You might infect NHS staff. You might deprive someone of a bed. And in any event, the unvaccinated might breed mutations. It’s not about you.

This is all perfectly true. Those bad things might happen. And we do frequently expect each other to limit risk to strangers, even at some cost to ourselves. Indeed, a general principle to that effect was established almost a century ago. The “general duty of care”, set out by Lord Atkin in 1932, states: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” But the concept of reasonableness — which appears twice in that formula — leaves judges with a heavy burden of interpretation.

Take the 1951 case of Bolton v Stone. Miss Bessie Stone, on the street outside her home, was hit in the head by a cricket ball. It had been tonked over the boundary for six by “an exceptional straight drive”, as the Law Lords put it. The resulting wound became infected, causing serious pain and disability. And so the courts had to decide: had the cricket club taken “reasonable care” to avoid the accident?

“The existence of some risk,” Lord Porter observed, in the final appeal, “is an ordinary incident in life”. The suggestion that it would have been a “wise precaution” to move the wicket to the middle of the ground, further from the houses, found no favour with him: “I do not think that it would have occurred to anyone that such an alteration would have made for greater safety.”

Lord Normand noted that, “it is not the law that precautions must be taken against every peril that can be foreseen by the timorous”. Lord Reid pointed out that not every peril can be foreseen: “Even the most careful person cannot avoid creating some risks and accepting others”. And Lord Oaksey, who five years earlier had led the tribunal at Nuremberg, found that many foreseeable risks “cannot be guarded against except by extreme isolation” — something we’ve all had enough of in the past 18 months.

All four of those men had seen active service in the Great War. The fifth judge, Lord Radcliffe, while agreeing that the injured lady’s claim must fail, did so “with regret”: the hypothetical reasonable man, “if his play turn to another’s hurt”, ought, he felt, to offer something more than the mere reflection that “a social being is not immune from social risks”. As chance had it, on the very same day that Miss Stone was hit — 9th August 1947 — Radcliffe had submitted his final plans for the design of an altogether more problematic boundary: that between India and Pakistan. We can only speculate whether the hundreds of thousands of deaths that followed gave him a more sombre perspective on foreseeable, though unintended, consequences.

Cricket balls no longer pose a threat outside Miss Stone’s old house — the ground now consists of a Care Home and a Modesty Clothing business — but legal claims of this kind have become more common, and the courts’ attitude to fault-free risk less accepting. As Jonathan Sumption noted in his provocatively titled 2017 lecture “Abolishing Personal Injuries Law – A Project”, the number of personal injury claims grew to about 250,000 a year by the early 1970s. And by 2014 the figure stood at 1.2 million.

Part of the reason for the increase is a feedback loop with the insurance industry. When a defendant is insured — which the vast majority are, mainly because insurance is compulsory for drivers and employers — it doesn’t quite feel like justice to leave a seriously injured claimant empty-handed in a borderline case. And when the courts expand the potential for liability, appetite for insurance grows.

But the crucial insight for understanding the mechanics of Safetyism, and how we have come to threaten students with a no-jab-no-education policy, was a brief, candid aside from Lord Oaksey in the cricket ball case: “It may very well be,” he speculated, “that after this accident the ordinarily prudent committee man of a similar cricket ground would take some further precaution, but that is not to say that he would have taken a similar precaution before the accident.” Daniel Kahneman was barely out of short trousers, and Cass Sunstein not yet born, but the observation neatly prefigures the cognitive bias they later described: the availability heuristic.

This is our tendency to judge the frequency and importance of an outcome by the ease with which we can call examples to mind. We over-estimate our share of housework, for instance, because we have no trouble remembering when we took the bins out ourselves — but barely notice when someone else does. For the sake of our argument, if the “reasonable man” has recently been told that something he’s planning to do led, on some previous occasion, to a bad outcome, he will be less likely to do the risky thing, because that bad outcome is fresh in his mind. Which, according to Lord Oaksey’s analysis, actually alters how we determine what amounts to negligence.

If this seems like mere common sense, well, in a way it is. But common sense isn’t always right. The ease with which we recall examples of a result is not an ever-reliable guide to its frequency and importance. If, for instance, a determined and creative cabal of your enemies were to follow you around all day FYI-ing you about all the terrible consequences of your acts and omissions — not taking a vaccine, for example — the availability heuristic would likely lead you astray.

Yet this is exactly what millions subject themselves to on Twitter every day — policymakers in particular. Negligence is defined in law as taking a risk that the reasonable man would not. The reasonable man today is someone who has heard all the hostile moralists’ warnings. And so, the reasonableness window has shifted, and the ratchet of risk-aversion takes another click.

And this is why there’s no smoking gun in the law reports — no moment when the courts’ approach to health and safety went mad: a slow and steady reappraisal of what the reasonable man would do will naturally seem, well, reasonable. But something surely changed between Bolton v Stone and, say, the case of Tomlinson v Congleton, half a century later, where the Court of Appeal found in favour of a man who injured himself diving into a public lake surrounded by “Dangerous Water — No Swimming” signs. Warning notices were not enough, they said: the popular beach beside the water should effectively be destroyed. The House of Lords put that one right in the end, but the fact that Lord Justice Sedley felt able to say that if his ruling required the removal of all similar facilities across the country then “so be it”, tells us something about the direction of travel.

And more recently, in the Age of Lockdown, social media has given the operation of the availability heuristic nuclear capabilities. The “reasonable man” is bombarded with a very particular set of examples of adverse consequences, and so it is these that stand to determine the shape of negligence. Never mind the social benefits of allowing people to judge for themselves what is best for them and their children, or to apply the much-vaunted precautionary principle according to their own tastes: if you don’t get the vaccine, and the booster shots when they arrive, you’re practically a murderer.

There is a clear and enduring downside to recasting the normal business of everyday life as a special privilege reserved for those who will take their medicine as directed by the government of the day. The upside — increasing the proportion of the vaccinated population from 90% to, say, 98% — is nebulous. Let us keep our heads, while all about us others — France, Australia, New Zealand — are losing theirs, and bear in mind the undeniable fact that we are seeking to strike a balance. In the coming weeks, the Government would do well to consider, very carefully, what is really meant by “reasonable”.