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Moments of Carelessness and Massive loss (Jeremy Waldron) Main argument ● Whilst a liability lottery does provide some justifications for imposing tort liability on those whose momentary carelessness happens to result in a massive loss on the grounds of fairness, it merely puts it on par on such grounds with other schemes such as New Zealand’s no-fault scheme. Hence, it remains unattractive as an alternative to such schemes   Summary ● Scenario ○ Fortune, a driver, is distracted for a moment by a advertisement but luckily avoids causing any injury ○ Fate, a drive, is distracted for a moment by the same advertisement but unluckily hits Hurt, a motorcycle driver, who is in a wheelchair life ○ Hurt sues Fate in negligence, claiming $5 million in damages ○ Fate & Fortune both return to store to claim $50 discount on shoes ● Fairness preliminaries - what we think at first sight ○ Hurt should win the lawsuit and receive $5 million to compensate his loss as he is an innocent victim ○ Fate should be the one to pay this as he caused the injury ○ Difficult to explain why Fate has to pay such a large sum for a moment’s lapse ● Consider how parties are left off under current tort law ○ Fate is better off by $50 but then has to pay pay $5 million so net loss of $4,999,950 ○ Hurt is worse off by $5 million but is then compensated so back to where he was before accident ○ Fortune is better off by $50 ● Main questions ○ (a) Given that Fate has gained no more than $50 from his negligence, why is it fair to require him to pay Hurt $5 million? ■ Though Fate acted culpably, the scale & character of that wrongdoing seems out of proportion to a $5 million penalty ○ (b) Given that Fate’s behaviour has been no more culpable than that of Fortune, why is it fair to require Fate, but not Fortune, to pay Hurt compensation for his loss? ■ Since Fate and Fortune seem equally deserving (so far as their driving is concerned), surely it is unjust to treat them differently. ● Inadequacy of the annulment theory ○ Aim of tort law can be summarised as to to annul wrongful gains and losses by a single transfer of wealth from a defendant who has gained from some action to a plaintiff who has suffered ○ Q (a) indicates that there is no transfer which will both annul Hurt’s wrongful loss and annul Fate’s wrongful gain without occasioning further loss to Fate. ○ Q (b) highlights how Fortune has secured same wrongful gain as Fate, but tort law doesn’t annul that. ● Intuitive response to question (a) ○ If Hurt’s not compensated, he will have to bear $5 million loss without benefit ○ If Hurt is compensate, Fate has to bear $5 million lawsuit with only compensation of $50 discount ○ Both options seem out of proportion & only marginally less unfair to allocate loss caused by accident to carless defendant rather than let things be - why not abandon framework that only victim or injurer? ● Intuitive response to question (b) ○ Fortune should not be required to compensate Hurt because Fortune didn’t cause Hurt’s injury. ○ It is essential to tort law that actions be described in terms of their causal consequences ○ Connection between causation & responsibility fails to establish a non-arbitrary basis for differential liability between Fate and Fortune - just luck if your negligence causes injury or not ● Tort law created a liability lottery with 2 extreme outcomes: zero loss & the loss of $5 million ○ Lottery is fair as careless defendants are exposed to same percentage of risk that they expose others to via their negligent acts i.e. their negligence creates a lottery and they then are liable to the lottery ● Best ways to achieve compensatory justice - no-fault scheme creates a more moderate range of outcomes ○ No-fault scheme which levies a charge on all drivers (because everyone has moments of carelessness) that is adjusted perhaps for individual risk experience over time. ○ All negligent drivers treated the same and victims should receive exactly the same (full) ○ Choosing between the system is easy, driver either risk losing everything or paying something small to avoid that risk (which thousands of people already do with insurance to avoid liability lottery) 

New Zealand: The Accident Compensation Scheme (McLeod and Hodges) Main argument ● General description of NZ’s comprehensive national no-fault personal injury insurance scheme which came into operation in 1974  Summary ● Core function is to provide cover for rehabilitation and compensation to the injured ● All claims under no-fault scheme cannot be taken to court - replacing tort liability ○ Some claims for exemplary damages can go to court but very rare ● Five main accounts to fund scheme ○ Work, Motor Vehicle, Earners, Non-earners, Treatment injury ○ Funded by levies paid by employers, employees and government funding ● All accounts full funded, motor vehicle account last to be fully funded to a high proportion of serious injury claims ○ Levies expected to decrease & stabilise but long-term concerns over ageing population leading to increased volume & cost of claims ● Number of claims are cyclical and often tied to economic conditions to residents perceptions of scheme’s funding & relative capacity to pay out claims ● Eligibility is met by 2-stage test; having an injury & injury caused by a specific event, series of events or gradual process, disease or infection ○ Needs to be a personal injury which includes physical, mental (due to physical injury or certain criminal acts), damages to dentures or prostheses or death due to physical injury ● Aims to provide real but not full compensation ○ Main entitlements are: rehabilitation (treatment, social & vocational), first week & weekly compensation after first week, lump sum compensation for permanent impairment (covers non-economic loss), funeral grants, survivors’ grants, weekly compensation for spouse/partners, other dependents ● After claim is accepted, ACC must determine with 13 weeks, whether claim will need social/vocational rehabilitation and then make a appropriate plan ○ If vocational rehabilitation in the original job is deemed practicable, employer must assist ● Decisions can be appealed but only 2.5% are subject to formal review and 84.2% decided in ACC’s favour ○ Courts decisions indicate interpretation that scheme should be inclusionary as a matter of social policy ● ACC also undertakes a number of injury prevention initiatives ● Some criticisms ○ Due to the large volume, claims are relatively unscrutinised which can cause concern regarding excessive or fraudulent claims ○ No deterrent or regulatory effect ○ Issues surrounding whether a person’s condition caused by injury or disease, the injury will always receive more than diseases ○ Levels of payments are modest and less than full compensation ○ Stronger attention to large injury date could be used to improve safety more  Key quotes/evidence ● Claim-handling costs only account for 11.9% of total claims paid (as opposed to only 50% of NSW premiums are paid to injured victims) ● On average 1.1 days take to reach a decision and average time to commence payment was 8.3 days (compared to a median of 47 months in NSW)           

No-fault Comepnsations in New Zealand: Harmonizing Injury Compensation, Provider Accountabaility, and Patient Safety (Marie Bismark & Ron Peterson) Main argument ● Compared to a medical malpractice system, NZ’s systems provides more timely compensation to a greater number of injured patients & more-effect process for provider accountability but there is more potential to improve patient safety  Summary ● Following 2005 reforms which expanded illegibility to all “treatment injuries” it became a true no-fault scheme ○ Avoidances of litigation is regarded as a social gain ● Issues with the tort-based system ○ Most injured patients do not qualify for compensation as their injuries were not negligently caused ○ Some negligently injured patients, the poor & elderly especially, are unlikely to sue & receive compensation ● NZ implemented government-funded compensation through ACC ○ Individuals gave up right to sue for damages arising out of personal injury covered by the legislation ● 2005 reforms broadened claims from “medical errors” or “medical mishaps” which were confusing & arbitrary to new concept of treatment injury which covered all injuries suffered while receiving treatment from health professional (causal link is still required) ● System has remained affordable due to four main factors ○ Strong social security system ○ Compensation awards are generally lower & more consistent than under medical malpractice system ○ Many entitled patients don’t seek compensation & many are unaware that they could even claim ○ Limited legal & administrative costs - only 10% of costs v 50-60% in other countries ● Arguments against system centre on fact a no-fault system equates to a no-accountability system ○ Addressed by establishment of Health & Disability commissioner which resolves complaints using patient advocacy, mediation or investigation when appropriate ● Some main concerns remain with the system ○ ACC compensation is inadequate, particularly in comparison to tort jurisdictions ○ Compensating treatment injuries but excluding all other injuries creates tensions ○ Although system is structure to improved patient safety, relatively few gains have been realised  Key quotes/evidence ● Although NZ system has not delivered perfect solution to problem of medical injury, it offers injured patients reasonable assistance quickly and without rancor                      

Reform of the Law of Negligence: Wrong questions - wrong answers (Harold Luntz) Main argument ● Rise in insurance premiums is due to complex factors, a lack of principle plays a minor role ● Issues with tort law are that it’s slow, cumbersome, expensive & discriminatory which can all be addressed to an extent by removing the fault element i.e. a no-fault system  Summary ● Causes of the rise in premiums ○ Principal cause was collapse of a large insurer that tried to establish market share by significant lowering premiums, following their collapse, premiums returned to normal levels ○ Increase in litigation has limited evidence but if there is may be due to increased lawyer advertising, more educated patients, greater recognition of rights ● A hypothetical case ○ Child falls over horse at the festival and suffered brain damage which carries major costs ○ Under fault system, detailed and costly investigation required to determine whether organisers at fault ○ One benefit of is organisers will be more careful in future but history shows education through campaigns more effective e.g. encouraging the wearing of safety helmets ○ Corrective justice argument is weak as often it is only those who are insured that are sued - costs of investigations might actually be pushing up premium ● A real case ○ Very difficult to determine who is at fault in motor vehicle accidents when children wander onto the road and are run over ○ Reasonable person test raises standards above those commonly adopted by society - otherwise wouldn’t act as a deterrent ○ Court decisions unlikely to have major impacts on individuals’ actions, especially when insurance companies have to bear costs ○ NSW motorists have to pay much higher premiums than Victorians who have implemented a partial no-fault scheme & receive compensation much faster ● Conclusion ○ New legislation is not making the law more principled, just introducing more special rules and not reducing any costs ○ The best solution is a no-fault scheme and represents community responsibility for inevitable accidents of modern society  Key quotes/evidence ● NSW study revealed victims wait a median of 47 months to obtain damages following a motor vehicle accident ● No fault scheme has been working successfully and sustainably in NZ for over 28 years (now 44 years) ● Only 50% of NSW premiums go to injured victims as compensation, a lot is wasted on long court cases determining who is it at fault                  

Tort Law and the Feminist Critique of Reason (J Conaghan)  Feminist legal theory examines how law perpetuates patriarchy or male domination.  Main argument ● Tort law reinforces patriarchy by using the ‘reasonable man’ test (which claims to be objective but is very gendered) so widely in negligence cases.  Summary ● The reasonable man is male; does not take into account subjective considerations of individual human frailty. Does not place enough importance on emotional issues and mental health, or on relationships.  ● Does not claim that feminine ideas are necessarily better, but aims to expose the fact that the supposed ‘objective’ standards are actually pretty gendered.  Key quotes/evidence ● “Why is there no duty to save a child drowning in two feet of water when it is freely acknowledged that such a failure to act fully offends the bounds of human decency?” ● Disparities of power often exist in tortious disputes - perhaps “...tort doctrine should specifically recognise such inequalities of power; for example, by placing both the initial economic loss and burden of proof on the corporate defendant.”                                     

Abel’s Critique of Torts  Main Argument ● Tort law does not fulfill its main functions well. It perpetuates inequality. (takes a bit of a marxist view)  Summary ● 1. A very brief history ○ Societal and technological changes have increased the impact one person can have on others (eg cars can easily cause much greater damage than carts) ○ Mass migration and urbanization have produced a nation of strangers…strangers have less incentive to exercise care toward each other and greater difficulty in resolving conflict when injury occurs. ○ Moral tone of tort law has changed as well...courts have awarded damages to victims who previously would have been barred from recovery, and gave imposed liability without fault… ○ The growing importance of damages for intangible injury reflects the value system of a postindustrial society that promises everyone a perfect life, unimpaired by accidents, and elevates leisure and consumption over work and production. ● 2. Moral judgement function ○ Many injustices are not corrected and the moral intuitions of judges and juries lack a principled basis ○ Tort law is too severe or too lenient ■ Eg too severe when momentary inadvertence results in catastrophic injury (e.g. driver takes eyes off road for one second) ■ Too lenient when egregiously unsafe conduct happens to cause little or no injury ○ Tort theory and practice violate the moral intuitions of laypeople because studies reveal that both victims and the general public believe that compensation ought to be divorced from fault. ○ The dominant ethical frameworks are jumbled. E.g. combining utilitarian and non-utilitarian ethics ■ Require informed consent before medical procedures out of respect for the patient’s autonomy (this perspective doesnt worry about the consequences) and yet impose liability only when that information would have persuaded a reasonable person to reject the procedure and award damages in proportion to the physical injury caused rather than the autonomy violated (which takes the utilitarian perspective and only worries about consequences) ○ Tort law therefore takes on the language of economics, but this pseudo-scientific way of reasoning is just a cover for policy and value judgements. ● 3. Compensatory function ○ Tort law cannot compensate needy victims adequately because liability is a funciton of fault rather than need. (a victim injured by someone not at fault will be uncompensated / if the defendant lacks resources the judgement is an empty remedy) ○ Relatively few victims even succeed (see evidence) ○ Compensation re-inforces existing inequalities ■ Sovereign immunity often eliminates tortious liability for governments ■ Tort damages deliberately reproduce the existing distribution of wealth and income ■ The cost of instigating proceedings is itself a barrier ● Private loss and liability insurers, courts and lawyers consume a larger proportion of the money paid by defendants. ○ Who gets to be compensated? ■ The ramifications of tortious begaviour proliferate indefinitely...the decision to terminate liability and deny compensation is hopelessly arbitrary ○ Finally, the fundamental justification is incoherent; money cannot restore victims to their status quo before the accident. Key Quotes/Evidence ● One study found that only twelve percent of English accident victims disabled for at least two weeks managed to recover. (p797) ...