floodgates

a term referring to the metaphor of the floodgates of litigation, the notion that there is potentially an ocean of potential litigants with potential claims who would, if the floodgates were opened, engulf the courts and inundate the courts of justice. It is often referred to by citing a dictum of Cardozo in Ultrameres Corporation v. Touche (1931) 225 NY 170 as a fear of creating 'liability in an indeterminate amount for an indeterminate time to an indeterminate class'. It is a legitimate worry, but Lord Fraser's suggestion in McLaughlin v. O'Brian [1983] 1 AC 410 that one should only worry about the floodgates if the instant case clearly indicates a realistic possibility of a flood of cases and otherwise deal with it, has not been rejected. On the other hand, the decisions in Murphy v. Brentwood [1990] 3 WLR 414 and Alcock v. Chief Constable [1992] 1 AC 310 show that the fear is still one to be considered. See economic loss, nervous shock.