Does Negligence Law Operate As It Should Notes

Class 22- Does negligence law operate as it should?

Moments of Carelessness and Massive Loss. Waldron

• Fate and Fortune were driving and both were distracted. Unluckily for Fate, he hit Mr Hurt. Hurt wanted 5 million in compensation. It is fair that he gets this compensation but Fate will be ruined for a moment of carelessness.

• Fortune also took his eyes of the road, violating the same duty of care but gets away scot free. Even a small fine would have been nowhere near 5 million.

• Fate would be required to carry third party insurance. Insurance can transform an unacceptable system of liability into an acceptable one or it helps people cope better with demands placed on them.

• Fate got $50 from his negligence because he saw shoes on sale but has to pay 5 million. Fate and Fortune are equally deserving but we treat them differently.

• There is dissonance between outcomes and deserts. There is unfairness because morality differs in proportion to individual outcomes.

• Tort liability is under serious challenge and it does not deal adequately with any of the dimensions of the problems it purports to address.

• Torts tries to cancel out the wrongful gain with the wrongful loss. Yet Fate’s gain is in no way a measure of Hurt’s loss and Fortune has had as much of a wrongful gain but no effort to annul it. Maybe the real aim of torts is to annul wrongfully imposed losses.

• Why shift the loss from Hurt to Fate? Why is Fate signalled out for liability? 5 million is the exact figure of Hurt’s injury and if it is not paid he will have to bear the cost. Hurt an innocent man shouldn’t have to bear that. Neither outcome is just from a distributive justice point of view.

• Losses must always fall on someone. Not to impose liability on the injurer is to impose it on the victim.

• It is up to Hurt to initiate the proceedings of recovering damages. He begins with the legal responsibility.

• The law singles out Fate to bear a massive loss on the basis of the fortuitous outcome of a moment’s carelessness.

• Tort law must be described in terms of its casual consequences or causation. Fortune drove carelessly but Fate injured carelessly. His ruination turns on that distinction. Fate will always be responsible for the disability.

• It is like when the left lane are all speeding and right lane are going slowly in a storm. The left lane all swerve and some hit the careful drivers. Those who did hit did something completely different to those who did not. It is ridiculous to blame half of the dangerous drivers because the accidents were completely random. The lucky drivers will be happy that they avoided people but all of the drivers were reckless in the left lane.

• The law punishes people more greatly for successful criminal attempts. Attempted murder has a much lower prison time. It is a penal lottery. If Abel dies then Cain is put to death because the chance that the gun shot would kill him is 60% and he lost the lottery. If he lives he goes free. The random outcome of the crime determines the outcome of the risk imposed as punishment.

• The risk of hitting someone took place for Fate and not Fortune. The event took place so he has to pay a massive sum equivalent to the victim’s losses. He wrongfully imposed a 30% chance of great loss to another person. Fate gets lucky only if his victim gets lucky.

• Fate and Fortune both suffer from the same imposition of risk and both deserve to suffer. It turns out badly for Fate. Neither can complain about being exposed to this risk. The outcome is zero loss or five million. They exposed the risk on others so they should suffer the same risk.

• We don’t want to cancel the defendant’s wrong but compensate the victim. There could be a no fault scheme levying a charge on negligent drivers or all drivers in general.

• Causation is a lottery system. A no fault scheme treats all drivers the same and levies them. Those with a higher percentage of risk being imposed on victims will have a higher levy. Otherwise drivers face the chance of complete ruin.

Trevorrow v State Of South Australia [2007]

Bruce Trevorrow was a member of the stolen generations- taken without permission from a hospital. He got a major depression disorder and could not be a participant in the Aboriginal community.

Damages: Loss of Aboriginal identity and culture, Exemplary damages of $75,000.00,

Damages for “his injuries and losses” $450,000.00 with no apportionment

between economic and non-economic and apportionment between past and future of 90%:10%. Interests: Plaintiff contended that interest should be calculation at 4% for a period of

almost 50 years from the time of separation to the date of judgment on that part

of the damages which constituted past unremunerated losses ($401,892.20) – ie

$800,569. The State submitted that interest should be allowed on the amount of $401,892

from the date of issue of proceedings to the date of judgment reduced by one

half to account for the long passage of time since the injury – ie $75,597.30.

The court reviewed the relevant authorities about interest and took into account

- The fact that the State had no exposure to statutory interest until 1972

and was not aware of the plaintiff’s impending claim until mid 1990

- “The retrospective effect of the legislation in the present proceedings

could be described as dramatic and as involving an element of

unfairness”. On the other hand the plaintiff has been delayed in receiving his

damages for a lengthy period. The court awarded a lump sum in lieu of interest in the amount of $250,000.

Gray J: The general function of an award of interest is to compensate successful plaintiffs for being kept out of money of which they would otherwise have had the use and benefit. When summarising the effect of the authorities, the Full Court of the Supreme Court of Victoria in Clarke v Foodland Stores Pty Ltd,[3] observed:

It may be accepted that the purpose of the statutory power to allow interest is to compensate the plaintiff for being kept out of his money,...

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