Chapter 1 Guidance on answering the questions in the book

Law and system

Question 1

The tort system has been likened to a ‘compulsory long-distance obstacle race’.

Comment on the strengths and weaknesses of the tort system, in reference to the above statement.

Outline

  • Derivation of the quote
  • Interpretation of the quote
  • How accurate or inaccurate is this assessment of the tort system and how can it be translated into its real and current strengths and weaknesses?

The quote is from a publication by Donald Harris in the Oxford Survey in 1984. This highlights the delays, expenses and uncertainties inherent in the operation of tort system, which in actuality brings about very different outcomes from those studied in ‘black letter’ law.

Answering this question requires a good grasp of how the tort system works in practice, in particular how it is driven by both the insurance system and the exigencies of the justice system. These are negatives for the claimant but strengths for the ‘repeat player’ defendant. The benefit of the system, for the claimants, may be substantial ‘prize money’, should they succeed and reach the end of the race.

Answers should be grounded in factual information such as that about the unavailability of legal aid and the high rate of ‘settlement’ in contrast to judicial resolution.

Question 2

What are the alternatives to the current tort system and how likely are they to replace that system?

Outline

  • The concepts of alternative and replacement differ
  • Alternatives often supplement the tort system: social security, charity, insurance, criminal injuries compensation, ‘bespoke’ and occupational schemes
  • Possible replacements: no-fault compensation
  • Realistic likelihood of change

Answering this essay question requires a good grasp of the weaknesses (as well as strengths) of the existing tort system. Why should it require either alternatives or replacements?

The majority of alternative schemes outlined in Chapter 1 co-exist with and supplement the tort system, in different circumstances. Answers should describe: social security, charity, insurance, criminal injuries compensation, ‘bespoke’ and occupational schemes. How they are similar to or differ from the tort system? How are any overlaps dealt with by the law; for instance the deductions of social security benefits gained from tort compensation. None of these are likely to be capable of replacing the tort system totally.

It is the no-fault system of liability which presents the main opportunity of replacing the existing tort system. Answers should explain and analyse such systems – the original comprehensive one in New Zealand and more recent specifically targeted examples around the world: pertaining to road traffic incidents, clinical negligence or pharmaceuticals.

The likelihood of replacement of the tort system will depend on an analysis of developments, or lack of them, since the publication of the Pearson Report in 1978. There are social, economic and political forces which will drive, or inhibit, significant change in this area.