Objectives of Tort - Principles of Justice or Hidden Policy Considerations?


Essay, 2006

11 Pages, Grade: Upper 2nd


Excerpt

Outline

a. Introduction

b. Functions of tort

c. Compensation for injury

d. Promoting economic efficiency

e. Deterring misconduct

f. Conclusion

a. Introduction

This essay will first provide a presentation of the possible objectives of an action for damages in tort. The various aims mentioned in the statement above shall then be classified and in a second step verified with illustration of current developments in case law.

b. Functions of tort

Tort Law has pursued different aims in its historical development: punishment, appeasement, deterrence, compensation, and efficient loss spreading of the accidents’ costs. They may all be important, but it is questionable if they can all be justified as an appropriate aim of tort law and better ‘pursued through other means.’

c. Compensation for injury and redressing wrongs

Compensation is often called the ‘main function' of tort law[1] protecting the individual’s interest in physical security.[2] In addition to this, its also redresses wrongs and reestablishes peace between the parties. the development of insurance has made this compensation aim easier to fulfil and some academics even argue that ‘without insurance the tort system would simply cease to operate.’[3]

But strictly speaking this system would mean entitlement to be compensated ‘no matter how rich the claimant or how poor the defendant’ is.[4] This surely is an honorable aim, but is realistically not feasible.

Probably this is the reason why so many attempts have been made to fight the insuffiency of tort law towards compensation. Employers have to be insured against damages resulting of injury suffered by his employees at work. Similarly third-party insurance has been made compulsory for motor accident cases.[5] Victims of violent crimes and medical treatment are compensated by the state. The shortcomings of tort regarding the aim of compensation cannot be ignored.

Furthermore tort law is not consistent, sometimes even contradictory. This is because judges have discretion on defining loss and how it is compensated. The areas of nervous shock and the recovery of economic loss in negligence exemplify this. In both areas the ‘floodgates argument is prevalent’[6] The famous Hedley Byrne decision[7] which concerned the liability of bankers giving references as to the credit-worthiness of their customers made clear that even damage that has not yet been realised could be compensated. This means providing compensation where loss has not materialized and may not be justified by probability. On the other hand, fear of indeterminate liability has led to a restriction on economic loss liability, and consequently, the victim of a tort is not fully compensated for their actual loss.

[...]


[1] Encyclopædia Britannica from Encyclopædia Britannica Premium Service. < http://www.britannica.com/eb/article-16464 > [Accessed on March 22, 2006].

[2] Fleming, John G.; The Law of Torts, p. 8.

[3] Cooke, John; Law of Tort, p. 7.

[4] Jones, Michael A.; ‘Textbook on torts’, p. 16.

[5] Cooke, p. 8.

[6] Cooke, p. 7 above.

[7] Hedley Byrne v. Heller & Partners [1964] AC 465

Excerpt out of 11 pages

Details

Title
Objectives of Tort - Principles of Justice or Hidden Policy Considerations?
College
University of Warwick
Course
Common Law
Grade
Upper 2nd
Author
Year
2006
Pages
11
Catalog Number
V110144
ISBN (eBook)
9783640083206
ISBN (Book)
9783656202059
File size
588 KB
Language
English
Notes
This essay will first provide a presentation of the possible objectives of an action for damages in tort. The various aims mentioned in the statement above shall then be classified and in a second step verified with illustration of current developments in case law. Welche Ziele werden tatsaechlich und welche sollten durch eine deliktische Haftung verfolgt werden?
Tags
Objectives, Tort, Principles, Justice, Hidden, Policy, Considerations, Common
Quote paper
Philipp Hujo (Author), 2006, Objectives of Tort - Principles of Justice or Hidden Policy Considerations?, Munich, GRIN Verlag, https://www.grin.com/document/110144

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