#16615 - Essay Template - Tort Law

Why Tort Law Is Important 2

Torts For The Purpose Of Compensation 3

Torts For The Purpose Of Distributive Justice 4

Tort Law As A Deterrent 6

Purpose Of Tort Law – How It Doesn’t Meet These Purposes 8

Alternative Mechanisms For Tortious Proceedings 10

Women And Tort Law 12

Who Is The Reasonable Person? 14

LAWS1061 Torts – Essay Question

• Topic sentence:

  • Tort law concerns the obligations of persons living within a crowded society to holistically create safety and functionality in everyday life.

  • Tort law provides an incentive for safe behavior whilst providing compensation to innocent victims of harm.

  • Tort law is important to protect those who have been harmed by another’s negligence although cannot sue under public law for criminal wrongdoing.

• Article:

  • Abel – A Critique of Torts: Compensation should not be an optional added extra to an unforeseen disability but rather a compulsory positive good for the innocently misfortunate.

• Case law:

  • Lord Atkin in Donoghue v Stevenson: attempted to develop the neighbour principle to establish that we all live in a society together therefore we should attempt to act in an orderly manner that will benefit our neighbours and in turn benefit oneself. – Respect for neighbours

    • “Reasonable care to avoid acts and omissions which would reasonably foresee would likely injury your neighbour”

• Topic sentence:

  • One of the primary purposes of tort law is for compensation for harm that arose from the negligence of another person.

• Article:

  • Abel – A Critique of Torts: Reliance on altruism [humanity/unselfishness] from those capable of inflicting harm for social distance, cultural difference or to expand class division is naive. Consequently, cases emerge where neighbours who attain complete understanding of potential damages to innocent persons create life-threatening situations; yet, the financial gain outweighs the ethical considerations and the law is a useless deterrent of this.

  • Abel – A Critique of Torts: Compensation should not be an optional added extra to an unforeseen disability but rather a compulsory positive good for the innocently misfortunate.

  • Waldron - Moments of Carelessness and Massive Loss: it is hard to establish how there can be a fair price for a moment of carelessness that is not unreasonable in the frolic of everyday life. However, desert in tort law poses issues about the justice in the relationship between tort liability and what individuals deserve. Nothing is clearer than the injustice of an innocent man having to be paid out by the wrongdoer.

• Case law:

  • Lord Atkin in Donoghue v Stevenson: attempted to develop the neighbour principle to establish that we all live in a society together therefore we should attempt to act in an orderly manner that will benefit our neighbours and in turn benefit oneself.

    • “Reasonable care to avoid acts and omissions which would reasonably foresee would likely injury your neighbour”

  • Mulligan: the existence of a sand bank is an “obvious risk” therefore there was no compensation for a man who is now quadriplegic due to the negligence of the government and judicial understanding of common law.

• Topic sentence:

  • The purpose of distributive justice is the concept thtat everyone shares the losses and gains so no one benefits or loses from the law.

  • This concept is seen to work in countries like New Zealand who follow a “no- fault scheme” which allows for everyone to be assessed on damages and awarded an amount from a communal pool of money to assist in compensating their harm.

• Article:

  • Abel – A Critique of Torts: Reliance on altruism [humanity/unselfishness] from those capable of inflicting harm for social distance, cultural difference or to expand class division is naive. Consequently, cases emerge where neighbours who attain complete understanding of potential damages to innocent persons create life-threatening situations; yet, the financial gain outweighs the ethical considerations and the law is a useless deterrent of this – the rich remain rich

  • Abel – A Critique of Torts: There is a lack of justice for marginalized persons. Abel expresses this as, “the legal celebration of formal equality obscures the persistence of real equality”. Thus consider, the law is masked by a social expectation to achieve justice although is the cause of marginalization. – But not for the marginalized

  • Patrick Atiyah: the tort system is in need of reform because it is “about as fair as a lottery”.

  • Waldron - Moments of Carelessness and Massive Loss: it is hard to establish how there can be a fair price for a moment of carelessness that is not unreasonable in the frolic of everyday life. However, desert in tort law poses issues about the justice in the relationship between tort liability and what individuals deserve. Nothing is clearer than the injustice of an innocent man having to be paid out by the wrongdoer.

• Case law:

  • Lord Atkin in Donoghue v Stevenson: attempted to develop the neighbour principle to establish that we all live in a society together therefore we should attempt to act in an orderly manner that will benefit our neighbours and in turn benefit oneself.

    • “Reasonable care to avoid acts and omissions which would reasonably foresee would likely injury your neighbour”

  • Mulligan: the existence of a sand bank is an “obvious risk” therefore there was no compensation for a man who is now quadriplegic due to the negligence of the government and judicial understanding of common law – the justice is not distributed out too far

• Topic sentence:

  • Tort law is to compensate for those who have experienced innocent misfortune and deter others from creating misfortune for the innocent.

• Article:

  • Abel – A Critique of Torts: Reliance on altruism [humanity/unselfishness] from those capable of inflicting harm for social distance, cultural difference or to expand class division is naive. Consequently, cases emerge where neighbours who attain complete understanding of potential damages to innocent persons create life-threatening situations; yet, the financial gain outweighs the ethical considerations and the law is a useless deterrent of this – people aren’t going to be deterred if the possibility of social gain in attainable and they may not be caught.

  • Guido Calabresi & Richard Posner: the goal of accident law should be to reduce the costs of accidents. However, it doesn’t achieve this due to insurance preventing the deterrent function of tort law from operating by preventing the damages flowing from the wrongdoer.

  • Patrick Atiyah: the tort system is in need of reform because it is “about as fair as a lottery” – this does not deter anyone

  • Waldron - Moments of Carelessness and Massive Loss: it is hard to establish how there can be a fair price for a moment of carelessness that is not unreasonable in the frolic of everyday life. However, desert in tort law poses issues about the justice in the relationship between tort liability and what individuals deserve. Nothing is clearer than the injustice of an innocent man having to be paid out by the wrongdoer. – It does not act as a deterrent, but rather as a lottery.

• Case law:

  • Lord Atkin in Donoghue v Stevenson: attempted to develop the neighbour principle to establish that we all live in a society together therefore we should attempt to act in an orderly manner that will benefit our neighbours and in turn benefit oneself.

    • “Reasonable care to avoid acts and omissions which would reasonably foresee would likely injury your neighbour”

  • Hot coffee: in a media release following the law suit, the plaintiff, Liebeck announced that she did not care about the amount she was compensated – as long as it covered her medical bills – however, she just wanted justice for people in the future so they are not burnt by unreasonably hot coffee as she was.

  • Palsgraf v Long Island: the unforeseeable plaintiff; how can we deter from someone that is not reasonably foreseeable to be harmed – therefore, we need a system that acknowledges that accidents happen but everyone should be returned to how they were before the accident.

  • Caltex v Dredge: salient factors; act as a further mechanism for deterrence because it broadens the opportunity for a duty of care to be owed.

  • Mulligan: the existence of a sand bank is an “obvious risk” therefore there was no compensation for a man who is now quadriplegic due to the negligence of the government and judicial understanding of common law – this isn’t acting as a deterrent but rather a means of escaping responsibility

• Topic sentence:

  • Tort law is important for the purpose of distributing justice to allow compensation to the innocent who have been misfortune.

  • However, tort law often fails to meet this purpose through the difficulties of navigating case law with the common law legislation.

  • Tort law is to compensate for those who have experienced innocent misfortune and deter others from creating misfortune for the innocent.

• Article:

  • Abel – A Critique of Torts: Reliance on altruism [humanity/unselfishness] from those capable of inflicting harm for social distance, cultural difference or to expand class division is naive. Consequently, cases emerge where neighbours who attain complete understanding of potential damages to innocent persons create life-threatening situations; yet, the financial gain outweighs the ethical considerations and the...