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The disparate aims of tort law

causing them, as a matter of justice we have no particular reason to require the defendant to make reparation. In the first case, the defendant can say ‘it was nothing to do with me!’; in the second their defence is ‘I couldn’t help it!’ As such, corrective justice seems to provide a fairly good account of the typical tort claim. For the most part, defendants are liable in the law of tort only where they caused the claimant’s loss and (though there are more exceptions here) where they were at fault in so doing. This, then, is what looks to be happening in Woodroffe-Hedley . However, even on the comparatively simple facts of this case, the application of corrective justice may not be quite so clear. Corrective justice rests on a notion of individual responsibility: if I am responsible for harming you, then justice requires me to put things right. However, in Woodroffe-Hedley , it was not only Cuthbertson who was in some way responsible for what happened. Hedley also played a role. After all, as Dyson J acknowledged, ‘mountain climbing is extremely danger ous. That is one of the reasons why so many risk their lives every year on mountains’. Hedley, as an experienced climber, knew this and willingly took the risk. So even if we treat the role of a tort claim as being to determine who, if anyone, was (mor ally) responsible for the claimant’s injuries, there may be no clear or single answer. To put the point another way, a case like Woodroffe-Hedley seems to present the court with a choice between the justice of righting a wrong (assuming this can be established) and avoiding the (possible) injustice of making someone else pay for another’s self-chosen risk. 35 The court, in this case, through the mechanisms of negligence, allocated the loss to Cuthbertson. However, had the court found the situation to be an emergency, it may well have been the case that the court would have found his actions to be reasonable and the loss would have stayed where it fell, that is with the claimant. 1.3.2 Compensation In Woodroffe-Hedley , as in the majority of tort cases, corrective justice is achieved by requir ing the defendant to compensate (pay damages to) the claimant for the losses they have caused them. This may make it appear that corrective justice and compensation are effec tively synonymous—to say that tort law is concerned with corrective justice is to say that it is about compensating harms. But this is not quite right. While corrective justice often requires the payment of compensation, as we have seen, it does so only where the defendant is morally and legally responsible for the claimant’s losses. This (typically) requires both causation and fault. As such, corrective justice requires the payment of compensation only where the defendant culpably caused the claimant’s losses. Moreover, corrective justice is actually done only where it is the defendant who pays that compensation—otherwise it will not be the defendant who is making good the loss they have wrongfully caused—and that this money goes to the claimant —since otherwise it will not be the claimant who is then ‘made good’. 36 This seems to impose significant limits on the role of 35. As we shall see, the law has various mechanisms for splitting losses in cases where the claimant shares culpability (contributory negligence) or even preventing recovery completely (voluntarily assuming the risk/ consent) (discussed in Chapter 10 ). 36. Indeed, Patrick Atiyah has argued that tort law no longer operates as a system of personal responsibility or corrective justice as the actual tortfeasor never pays (‘Personal Injuries in the 21st Century: Thinking the Unthinkable’ in Peter Birks (ed) Wrongs and Remedies in the 21st Century (OUP 1996)).

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