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The disparate aims of tort law

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1.3 The disparate aims of tort law Tort law has both backward- and forward-looking elements. It looks backwards at what happened—the ‘wrong’—and addresses the harm done, while also looking to the future and at ways of regulating behaviour and developing responses to the risk of harm. It seeks to protect an individual’s interests both prospectively (i.e. to prevent or deter future harm) and retrospectively (through the provision of compensation for past harms and the distribution of losses). Thus, tort law has a number of disparate functions or purposes—typically identi fied under the broad headings of (corrective) justice, compensation, deterrence, and, less often, vindication, that is inquiry and/or publicity. 29 It is to these functions that we now turn our attention, through an analysis of the little-known, and unreported, case of Woodroffe Hedley v Cuthbertson [1997]. 30 In many ways, the decision in Woodroffe-Hedley is straight forward. The case itself is of limited legal significance and is unlikely to appear on your reading lists. 31 It is, nevertheless, an effective illustration of the diverse purposes and func tions of tort law and how the courts balance its—at times competing—objectives. courts really should take policy into account, it is clear that, at least on occasion, they do— where, unsurprisingly, we also see conflicting views as to its role. Compare the following: Public policy is ‘a very unruly horse, and once you get astride of it you never know where it will carry you’. (Burrough J, Richardson v Mellish (1824) at 252) With a good man [or presumably woman] in the saddle, the unruly horse can be kept in control. It can jump over obstacles. (Lord Denning MR, Enderby Town Football Club Ltd v The Football Association Ltd [1971] at 606)

Woodroffe-Hedley v Cuthbertson (20 June 1997 unreported) (QBD)

Gerry Hedley was an experienced rock climber. He hired David Cuthbertson, the defendant, an experienced alpine climber, to guide him to the summit of the Tour Ronde—a steep ice climb of about 350 metres up one of the peaks of the Mont Blanc Massif, a mountain range in Europe. At the time of the accident, Cuthbertson was leading (i.e. going first). Concerned about the heat of the sun on the snow and the danger of rock fall, he decided to protect Hedley on a single ice → PROPERTY OF OXFORD UNIVERSITY PRESS

29. For a consideration of the purposes of tort law—focusing on the tort of negligence—see Steve Hedley ‘Making Sense of Negligence’ (2016) 36 Legal Studies 491 and more generally James Goudkamp and John Murphy ‘The Failure of Universal Theories of Tort Law’ (2015) 21 Legal Theory 47. 30. In so doing, we are mindful of Weir’s warning that before ‘discussing the purpose of “tort”, it is surely desirable to become familiar with what the ragbag actually contains: otherwise we shall be like adolescents spending all night discussing the meaning of life before, perhaps instead of, experiencing it’ n15 ix. 31. See further Lord Dyson on Woodroffe-Hedley and the criticism his judgment garnered in the press in ‘Compensation Culture: Fact or Fantasy?’ Holdsworth Club Lecture, 15 March 2013 at [33]. Watch Lord Dyson deliver his lecture here: www.youtube.com/watch?v=rbDDHd6vZEI .