Lecture 2 - Functions aims of Tort Law PDF

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“Liability consists in a legal relationship between two parties, … In holding the defendant liable to the [claimant], the court is making not two separate judgments (one that awards something to the [claimant] and the other that coincidentally takes the same away from the defendant) but a single judgment that embraces both parties in their inter-relationship.” - Corrective Justice Corrective Justice ingredients: (the idea that liability rectifies the injustice caused by one person to another) Principle of correlativity: 1. Both must be legal persons 2. C and D as sufferer and doer of the same injustice Claimant 1. Has a recognised protected right/ interest 2. Her right was violated Defendant 1. A duty owed to C and breached 2. Correlative obligation 3. Therefore, fault and reasonably foreseeable -Somebody who has harmed another without justification to compensate the other Corrective justice - one to one Distributive justice - one to many → For example: “Floodgate arguments”, conflicting interests, public policy and sanctity of life, illegal conduct on part of the claimant, exisiting law, availability of alternate remedies ____________________________________________________________________________ Functions of tort law 1. Compensation - Restitutio integrum Goal = place the claimant back in the position they would have been if tort had not occurred Contrast = contract looks to compensate the claimants expectation interest 2. Deterrence - deter any future conduct 3. Vindication - vindicate the claimants rights. (vindicate = clear someone of blame) Compensation - }“Make-whole damages." }Links with distributive justice The notion is that the successful tort [claimant] is entitled to receive a payment reflecting the value of the losses that she experienced because of the tort.

Goldberg, ‘10 Half-Truths’

Compensation - The JSB Guidelines =

Deterrence = the imposition of tort liability should deter similar conduct from occurring in the future And the role of insurance - The general rule in English Law is in determining rights of A and B, the fact that one is insured should be disregarded. Insurers pay out 94% of tort compensation awards. 86% of all claims are bought for personal injury are for work/road insurance where there must be compulsory liability insurance. Insurance is important as without it there would be little hope of brining the claimant back to preaccident position in a serious accident case....