9780198925231-Ch1

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CHAPTER 1 Introduction

There is, however, as Lord Sumption noted in his speech to the Personal Injuries Bar Association, another difficulty with tort law as a mechanism for compensation. As we have seen, the idea of corrective justice which underlies tort law’s general requirements of causa tion and fault calls only for losses to be made good where they are the responsibility of someone else. While it might seem ‘fair’ that Hedley’s young son is in some way compen sated for the loss of his father, what about the many other children who lose a parent but have no one to blame for their death and, therefore, no one to sue in tort? Are they any less deserv ing of compensation? Similarly, would Hedley’s son have been any less in need of compensa tion if the court had found the guide not to be negligent—if they had found one ice screw, in the circumstances of the case, to be sufficient? The point here is not to question the requirements of corrective justice, but to ask whether the law of tort should put all its eggs in this one basket. Corrective justice provides one good reason for providing a claimant with compensation, but it does not follow that there are no other, equally good, reasons for compensating accident victims. Why should the law generally, and through the law of tort in particular, prioritise corrective justice? Should it not also provide compensation for those who suffer losses but who cannot find a defendant on which to pin them? Moreover, even where losses are caused by another’s culpable conduct—and hence where corrective justice would seem to apply—as we have seen, the loss will often be borne either by an insurer or will not be made good at all (because the defendant does not have the resources to pay). 48 In the end, cor rective justice actually seems to cover very little ground, protecting only a small minority of those whom we might feel should be compensated for their injuries.

Pause for reflection

Consider the following situations.

1. Erin, an affluent 80-year-old, crashes their car while drunk and loses a leg. 2. Argi, an 18-year-old single parent, loses a leg when, while working as a traffic warden, he is struck by an unidentified hit-and-run driver. 3. Mathilde, as a result of a congenital defect, is born with only one leg. She is now 5. 4. Léonie loses a leg as a result of contracting a serious disease. 5. Brontë, a ‘career burglar’, loses a leg after being shot by a householder during a break-in. Which of these people should receive compensation? Who or where should the compensation come from?

There is no ‘right’ answer to this exercise. Its purpose is simply to get you thinking about the variety of harms you will encounter in your study of tort law. Think about why you believe a person who loses a leg as the result of someone else’s fault is more or less deserving of compensation than someone who, say, loses a leg after contracting a serious disease—what assumptions about the comparative severity of these harms and, importantly, the purpose of tort law, underpin your decision? Keep these questions (and your responses to them) in mind as you continue reading this and the following chapters so that you can reassess your position as you learn more about tort law. PROPERTY OF OXFORD UNIVERSITY PRESS

48. Losses are also often borne by employers (or more accurately the employer’s insurance company) through the mechanism of vicarious liability, discussed in Chapter 20 .