Aims of Tort Essay Plan
What is Tort?
The word 'tort' comes indirectly from the Latin term ‘tortus’, which means crooked or twisted—in
other words, wrong.
It therefore makes sense that a ‘tort’ is a civil wrong that occurs where someone unfairly causes
another person to suffer loss or harm.
A person committing a tort is legally liable to the party injured, who is provided with a remedy in law,
such as monetary damages or an injunction to compel or prevent certain conduct. An injured party
who decides to pursue the matter in court is known as the claimant, and the person alleged to be
responsible for the damage is the defendant or tortfeasor.
Intro points? Possibility for wider discussion?
Tort can be considered to have both ‘backwards’ and ‘forwards’ looking elements:
Tort is often considered or referred to as a type of ‘corrective justice’. The courts prioritise protecting
the interests of individuals through corrective justice however this is primarily functional. Lord Steyn
recognises in McFarlane v Tayside Health board case that tort has a wider social impact on society
and sets a precedent for behaviour.
- Case of Woodroffe-Hedley v Cuthbertson: The extent to which tort law is really concerned
with corrective justice can be challenged when we look at the motives of those who bring
tort claims. In newspaper interviews at the time of the case, Hedley’s widow was quoted as
saying she felt deeply sorry for Cuthbertson. It was clear that she was looking to allocate
blame only insofar as was necessary to gain compensation for her son. Moreover, any
compensation that Cuthbertson would be required to pay would be covered by his liability
insurance. As such, it would not be Cuthbertson who was paying, but his insurance company.
Thus, while on the surface tort law works to make the blameworthy pay, its corrective justice
purposes are in truth undercut by the reality of insurance.
There is also an element of distributive justice that is used as a tool for social construction through
recognition of torts wider impact to make sure that “that neither equal persons have unequal things,
nor unequal persons things equal” (R. Wright, ‘Right, justice and Tort Law’ 1995).
Ideas for main body & relevant quotes:
Note that decisions in private tort have the potential to change public policy but there has been
much discussion around how strongly public policy should be considered in cases such as Fairchild v
Glenham Funeral Services. In this case Lord Bingham debated the role of policy and providing a ‘fair’
outcome to those who “suffered grave harm, at the expense of their employers who owed them a
duty to protect them against that very harm and failed to do so”, and how strict the test of causation
should be. This not only protected the claimants’ interests functionally through compensation but
provided guidance for how judges should consider harm.
Tort has also been criticised for the creation of ‘compensation culture’. In Tomlinson v Congelton BC
the claimant ill-judged his jump off a dock caused paraplegia and sued for breach of duties under the
Occupiers’ Liability Acts 1957 and 1984. Lord Hobhouse commented how ‘the pursuit of an
What is Tort?
The word 'tort' comes indirectly from the Latin term ‘tortus’, which means crooked or twisted—in
other words, wrong.
It therefore makes sense that a ‘tort’ is a civil wrong that occurs where someone unfairly causes
another person to suffer loss or harm.
A person committing a tort is legally liable to the party injured, who is provided with a remedy in law,
such as monetary damages or an injunction to compel or prevent certain conduct. An injured party
who decides to pursue the matter in court is known as the claimant, and the person alleged to be
responsible for the damage is the defendant or tortfeasor.
Intro points? Possibility for wider discussion?
Tort can be considered to have both ‘backwards’ and ‘forwards’ looking elements:
Tort is often considered or referred to as a type of ‘corrective justice’. The courts prioritise protecting
the interests of individuals through corrective justice however this is primarily functional. Lord Steyn
recognises in McFarlane v Tayside Health board case that tort has a wider social impact on society
and sets a precedent for behaviour.
- Case of Woodroffe-Hedley v Cuthbertson: The extent to which tort law is really concerned
with corrective justice can be challenged when we look at the motives of those who bring
tort claims. In newspaper interviews at the time of the case, Hedley’s widow was quoted as
saying she felt deeply sorry for Cuthbertson. It was clear that she was looking to allocate
blame only insofar as was necessary to gain compensation for her son. Moreover, any
compensation that Cuthbertson would be required to pay would be covered by his liability
insurance. As such, it would not be Cuthbertson who was paying, but his insurance company.
Thus, while on the surface tort law works to make the blameworthy pay, its corrective justice
purposes are in truth undercut by the reality of insurance.
There is also an element of distributive justice that is used as a tool for social construction through
recognition of torts wider impact to make sure that “that neither equal persons have unequal things,
nor unequal persons things equal” (R. Wright, ‘Right, justice and Tort Law’ 1995).
Ideas for main body & relevant quotes:
Note that decisions in private tort have the potential to change public policy but there has been
much discussion around how strongly public policy should be considered in cases such as Fairchild v
Glenham Funeral Services. In this case Lord Bingham debated the role of policy and providing a ‘fair’
outcome to those who “suffered grave harm, at the expense of their employers who owed them a
duty to protect them against that very harm and failed to do so”, and how strict the test of causation
should be. This not only protected the claimants’ interests functionally through compensation but
provided guidance for how judges should consider harm.
Tort has also been criticised for the creation of ‘compensation culture’. In Tomlinson v Congelton BC
the claimant ill-judged his jump off a dock caused paraplegia and sued for breach of duties under the
Occupiers’ Liability Acts 1957 and 1984. Lord Hobhouse commented how ‘the pursuit of an
