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The disparate aims of tort law

He has a point. But it only goes so far. As Jonathan Morgan notes: Tort law is, considered solely as a compensation scheme, outstandingly badly designed (in the ory) and staggeringly inefficient to operate (in practice). But compensation is not tort’s only legitimate role. Once this is acknowledged, the case for abolition is uncertain. 72

Pause for reflection

As we shall see in this chapter and throughout the book, tort law serves a number of pur poses beyond compensation, including ensuring corrective justice, providing alternative avenues for vindication and redress, and deterring future harmful activities. And it is to the latter of these purposes to which we now turn. If tort law does such a bad job of compensating those we feel should be compensated, what are the alternatives? One is simply to extend state provision for those who suffer misfortunes. In other words, the state should compensate those who suffer losses and should not limit such compensation to those injured as a result of another’s fault. However, the costs of this might be considered prohibitive. So, while the state does make some provision for the disadvantaged, including the operation of some so-called ‘no-fault’ compensation schemes, 73 there is no prospect of it tak ing over responsibility for protecting us from all our losses. 74 An even more radical solution was proposed by Patrick Atiyah in The Damages Lottery . He argued that in a system where people have a strong financial incentive to blame others for injury and where welfare support is increasingly provided through insurance and personal support systems, the solution to the inadequacy of the tort system to compensate for accidental harm lies in personal —that is first-party— insurance . The idea is that those engaged in risky activities would take out insurance to cover themselves should they be involved in an accident. People could insure themselves against any risks—from being run over to insuring against congenital disabilities that may affect their children. 75 Do you think this is a good idea? Might this just, as Joanne Conaghan and Wade Mansell argue, ‘simply substitute . . . one system of arbitrary and fortuitous distribution for another’? 76 What would happen, for example, to those who could not—or would not—buy insurance?

72. Morgan n40 23. 73. Discussed in section 21.6.1.1 . 74. Though see Sumption n40 . 75. Atiyah n49 191. 76. Joanne Conaghan and Wade Mansell ‘From the Permissive to the Dismissive Society: Patrick Atiyah’s Accidents, Compensation and the Market’ (1998) 25 Journal of Law and Society 284, 291. 1.3.3 Deterrence Tort law also plays a role in deterring future tortious activity. The imposition of liability in relation to a particular activity enables others to regulate their behaviour accordingly. Thus, it is argued, following Woodroffe-Hedley , that mountain guides are more likely to use two ice screws rather than risk liability by relying on one. Moreover, one might think that anything that encourages safe practices is, in itself, a good thing. PROPERTY OF OXFORD UNIVERSITY PRESS