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1. What is tort law and how does it differ from contract or criminal law?
A tort is a civil wrong. Whereas contract law is about voluntary obligations, the wrongs which make up tort law involve breaches of imposed obligations. The key ways tort law differs from criminal law is that actions in criminal law are brought by the state to punish the defendant, whereas in tort law actions are brought by an individual and provide a remedy for the loss or harm (see further section 1.2).
2. What is the purpose of compensating for injury?
It is often said that the purpose of compensation in tort law is to put the claimant 'back into the position they would have been in had the tort not occurred'. However, this simply prompts a further question as to why tort law requires this. This question goes to the heart of the theoretical basis of tort law. Some people say that this is required as a principle of (corrective) justice, or to vindicate the claimant's rights. Others, however, point to the role of deterrence or the importance of loss-spreading. These viewpoints are discussed in detail in section 1.2. You should also have a look at the discussion of the way in which compensation is assessed in Chapter 21.
3. What is meant by the term 'compensation culture' and what does the use of the term imply?
Have a look again at the ‘a compensation culture?’ box in section 1.3.1. The existence or otherwise of a 'compensation culture', that is a culture which encourages us to blame others (rather than ourselves) for our misfortune and to seek to claim significant awards of damages, has been subject to much debate. Though the word ‘culture’ suggests that the ‘default’ position is to ensure that injured parties are compensated, this is not the case. Whether or not there is in fact, a culture of compensation, perhaps, what is more dangerous – and certainly far more real – is the perception of such a state of affairs. Successive Governments have tried to address this – see, for example, the introduction of the Compensation Act 2006, the Social Action, Heroism and Responsibility Act 2015 and Lord Young’s Common Sense, Common Safety report (discussed in Chapters 8 and 21).
4. Are the disparate aims of tort law conflicting or complementary? Give reasons for your answer.
This is the type of question you could get in an exam. In order to answer this question well you would have to consider the various purposes of tort law and explore the relationship between them, drawing out where they are in conflict and where they complement each other. This involves you raising many of the points addressed in the questions above. A strong answer will also refer to case examples. Nettleship v Weston would be a good example to use here, so too would Woodroffe-Hedley v Cuthbertson, but there are many others. One important point to consider is that though few, if any, of these possible aims are wholly antagonistic, they will often pull in different directions. For example, requirements of culpability and causation seem more consistent with justice-based viewpoints than they do with arguments based on deterrence and loss-spreading.