9780198925231-Ch1

12

CHAPTER 1 Introduction

tort law as a means for compensating losses. If tort law is simply about ‘doing’ corrective justice, then it can do nothing to remedy accidents and to make good losses which are no one’s fault or where the party who is at fault cannot themselves pay compensation. Look again at Woodroffe-Hedley . The claimant was not the climber’s estate but his young son, who was not even born at the time of the accident. It is not impossible to say that, by not using a second ice screw or a running belay, Cuthbertson was wronging Hedley’s unborn son (as well as wronging Hedley himself), but nor is this self-evident. Even here, whether the claim can really be said to have given effect to corrective justice is far from clear. Moreover, the extent to which tort law is really concerned with corrective justice can be challenged when we look at the motives of those who bring tort claims. In newspaper inter views at the time of the case, Hedley’s widow was quoted as saying she felt deeply sorry for Cuthbertson. 37 It was clear that she was looking to allocate blame only insofar as was neces sary to gain compensation for her son. Moreover, any compensation that Cuthbertson would be required to pay would be covered by his liability insurance. As such, it would not be Cuthbertson who was paying, but his insurance company. Thus, while on the surface tort law works to make the blameworthy pay, its corrective justice purposes are in truth undercut by the reality of insurance. Indeed, claiming in tort is often, in practice, conditional on the defendant having insur ance. After all, there is little point suing someone who will not in the end be able to pay: . . . it is seldom worth suing an uninsured negligent defendant. 38 Because of the operation of insurance, the plaintiff’s loss is distributed, not to the careless defendant but, through insurance premiums, to all those who were not careless but who had insured against the possibility of being so. By the back door, the presence of insurance goes some way to the destruction of the central fault principle itself. 39 Lord Sumption made a similar point in a speech to the Personal Injuries Bar Association in 2017. A system which makes compensation dependent on fault makes little sense if the damages are being paid not by the persons at fault, but by society as a whole. One is entitled to ask: why should the private law distribution of rights and liabilities between individuals or their employ ers determine the incidence of what is in reality a social cost? . . . [I]f the cost of compensating people for personal injury falls on society at large, there is no rational reason to distinguish between personal injury which has been caused by someone’s fault, and personal injury which has occurred without fault. 40 Lord Sumption’s provocative speech is worth reading in full as he explores many of the issues raised in this chapter and throughout the book. We’ll be returning to it a number of times during this chapter. 37. Gary Younge ‘Go tell it on the mountain’ The Guardian 21 June 1997. 38. Though the case of the so-called ‘lottery rapist’ ( A v Hoare [2008] ) may be an exception (David Batty ‘Victim wins right to sue Lotto rapist’ The Guardian 30 January 2008; Jeremy Armstrong, Lucy Thornton and Sophie Halle-Richards ‘Rapist wins control of £7million lotto jackpot—after 15 year fight’ Manchester Evening News 15 April 2023). 39. Conaghan and Mansell n26 12. 40. Lord Sumption ‘Abolishing Personal Injuries Law—A Project’ Personal Injuries Bar Association Annual Lecture, London, 16 November 2017. See also Jonathan Morgan’s response: ‘Abolishing Personal Injuries Law? A Response to Lord Sumption’ [2018] Professional Negligence 122. PROPERTY OF OXFORD UNIVERSITY PRESS