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The disparate aims of tort law

In such circumstances, the principles of corrective justice give way to the practicality of distributing losses. And, more fundamentally, the loss- shifting credentials and justifications of tort law (moving losses onto those who have culpably caused others to suffer them) are undermined. Losses, rather than being moved from one individual to another, are instead spread over a larger number of people. Tort law, while retaining its rhetoric of individual responsibility, effectively forces people to contract into the collective responsibility strategies of the welfare state. 41

Counterpoint

Tort law, like all law, is political. By this we do not mean political in the party politics sense (although this may sometimes be relevant), but rather as ‘being characterised by policy’. 42 Put simply, tort law embodies a philosophical perspective which prioritises individual over social or collective responsibility. Consider, for example, the decision in Roe v Ministry of Health [1954], 43 the fact that there exists no general legal duty to rescue, 44 or Tomlinson v Congleton Borough Council [2003] . 45 The difficulty is that the politics of this understanding of tort law are rarely made explicit—they are, instead, presented as the way things are, as ‘common sense’. This understanding of tort law is not unproblematic: Joanne Conaghan and Wade Mansell argue that: if the basic subject matter of tort is concerned with how the law responds, or fails to respond, to the misfortunes which afflict individuals in our society, it can be strongly argued that the tort system represents a political solution which is undesirable both because of the arbitrariness of its results and because of the underlying callousness of its ideology. 46 This critique is, of course, itself political. It reflects a view that emphasises the importance of social or collective responsibility for an individual’s misfortune and which questions the effectiveness of the tort law system—and in particular the centrality of the fault principle—as a mechanism for compensation and/or loss distribution. 47 Who do you find most persuasive? Our purpose here, however, is not to argue for one understanding of tort law over another. Rather, it is simply to make clear from the outset that more goes on beneath the surface of tort law than might at first be apparent and, in so doing, to encourage you to approach your study of it with a critical eye. 41. Conaghan and Mansell n26 12. Most notably in relation to workplace and road traffic accidents where statutory requirements that employers and motorists have liability insurance have been described by Jonathan Morgan as a ‘ partial move towards a state-sanctioned compensation scheme’ (‘Tort, Insurance and Incoherence’ (2004) 67 Modern Law Review 384, 400). 42. Wade Mansell, Belinda Meteyard and Alan Thomson A Critical Introduction to Law (Cavendish 2004) 2. 43. Discussed in section 8.4.1 . 44. Discussed in section 4.2 . 45. Discussed in section 11.4.1 . 46. Joanne Conaghan and Wade Mansell ‘Tort Law’ in Ian Grigg-Spall and Paddy Ireland (eds) The Critical Lawyer’s Handbook (Pluto Press 1992) 83–90, 84. 47. Conaghan and Mansell n26 3–4.

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