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.
Table of Contents
a. Introduction
b. Functions of tort
c. Compensation for injury
d. Promoting economic efficiency
e. Deterring misconduct
f. Conclusion
Objectives & Core Themes
This academic work critically examines the primary objectives of tort law, specifically evaluating whether the legal system should prioritize compensation for injuries or if it is unduly influenced by economic policy and deterrence goals. The research questions whether current tort mechanisms successfully balance these often conflicting functions within a modern legal framework.
- The historical functions and evolving aims of tort law.
- The effectiveness and limitations of compensation as a central objective.
- The application of economic analysis and efficiency in legal decision-making.
- The role of tort law in deterring misconduct compared to criminal law.
- The tension between justice, policy considerations, and economic constraints.
Excerpt from the Book
c. Compensation for injury and redressing wrongs
Compensation is often called the ‘main function' of tort law protecting the individual’s interest in physical security. 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.’
But strictly speaking this system would mean entitlement to be compensated ‘no matter how rich the claimant or how poor the defendant’ is. 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. 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’ The famous Hedley Byrne decision 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.
Summary of Chapters
a. Introduction: Outlines the scope of the essay, which aims to classify and verify the objectives of actions for damages within the current landscape of case law.
b. Functions of tort: Discusses the historical evolution of tort law, identifying primary aims such as punishment, deterrence, and compensation, while questioning their justification.
c. Compensation for injury: Analyzes the practical limitations of compensation, highlighting inconsistencies in judicial discretion and the role of insurance in modern tort systems.
d. Promoting economic efficiency: Explores the integration of economic analysis into tort law, particularly the 'Hand rule' and its impact on determining duties of care and market behavior.
e. Deterring misconduct: Investigates the role of punitive damages and deterrence, emphasizing the boundary between civil tort law and criminal law sanctions.
f. Conclusion: Summarizes the conflict between tort law's disparate goals and argues that compensation should remain the primary and most coherent objective of tort law.
Keywords
Tort Law, Compensation, Economic Efficiency, Deterrence, Negligence, Punitive Damages, Liability, Hedley Byrne, Learned Hand, Loss Spreading, Risk Distribution, Civil Law, Criminal Law, Legal Policy, Justice.
Frequently Asked Questions
What is the core subject of this paper?
The paper examines the fundamental purposes of tort law, questioning whether it should focus primarily on compensating victims or if it is being overwhelmed by conflicting economic and deterrence-based policy considerations.
Which thematic areas does the author address?
The author covers historical functions of tort, the mechanics of compensation, the influence of economic theory on legal standards, the role of punitive damages, and the distinction between tort and criminal law.
What is the central research question?
The work explores whether tort law attempts to do too much by pursuing inconsistent goals and advocates for identifying one paramount goal to ensure coherence.
What scientific methods are utilized?
The paper employs a legal analysis method, reviewing case law precedents and scholarly economic theories to evaluate the practical outcomes of current tort regulations.
What does the main body focus on?
The main body breaks down the functions of tort, providing specific examples from case law to highlight the inconsistencies in how courts handle compensation and economic loss.
Which keywords define this work?
The work is defined by concepts such as compensation, economic efficiency, tort liability, risk distribution, and the separation of civil and criminal legal objectives.
How does the author view the 'floodgates argument' in tort law?
The author notes that the fear of indeterminate liability often leads courts to restrict economic loss recovery, which ultimately results in victims not being fully compensated for their losses.
What is the author's stance on punitive damages?
The author expresses skepticism regarding the role of punitive damages in civil law, arguing that tort law is not meant for punishment and that such deterrence belongs within the realm of criminal law.
How is the relationship between tort law and the free market characterized?
The author argues that tort liability is essential for a functioning free market as it encourages risk-imposers to adopt cost-justified precautions to reduce activities that might harm others.
What is the final conclusion regarding the purpose of tort law?
The author concludes that tort law should be kept separate from punishment and deterrence, identifying compensation as the most appropriate and primary goal for the system.
- 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
