Chapter 21 Answers to End-of-chapter questions

1. Should the focus of the tort system be based on fault, or on other considerations such as need, equality, or deterrence?

This question is asking students to interrogate what the tort system is in fact based on and what its aims are – and whether the two are wholly compatible. A secondary question is about whether these aims are met (or achievable) – or are even the right aims to strive for in the first place. As we do have – for the majority (there are clearly exceptions where strict liability has been built into the system) – fault-based liability, the question becomes whether 'fault' (in its legal sense) is the correct idea to base compensation upon. This inevitably leads to the question ' how else could we do it?' and an exploration of other types of systems either in operation or proposed by commentators (some of these ideas are considered in the chapter at section 21.6.1 and its sub-sections). Some of the principles outlined in the answer to question 2 will be relevant, at the very least as background reading. You may also find it helpful to re-read section 1.3 of chapter 1.

2. Is it right that society as a whole largely shoulders the burden of higher compensation payouts, through principles of insurance, higher prices for goods and services, and tax?

This is a question about what form of justice we see the tort system as giving – or which is the most appropriate 'model' of justice we believe the tort system should be based on. The choices include:

1. individual (or corrective) justice – where one would argue that it is right that individuals should be able to claim – and receive compensation for – any harms that befall them. In this respect this is linked to (or is a variant of) retributive justice and the idea that, in a civil context, those who harm must be made to pay. This might include fault-based considerations but also principles of strict liability in areas where we believe that compensation is always (or with few exceptions) appropriate. One aspect of the tort system that will appeal to individualists includes the principle of vicarious liability (see chapter 20 Horsey & Rackley / chapter 18 Kidner), which will often ensure that compensation will be paid to those who (we deem to) deserve it by someone who can afford to pay.
2. collective (or social) justice – a justice theory based on collectivism (often seen as the exact opposite to individualism) where human interdependence and the importance of a collective (e.g. society) is prioritised, rather than the importance of separate individuals. Collectivists focus on community and society, and seek to give priority to group goals over individual goals. Proponents of collective justice in the tort system would argue that the idea of compensation is primarily good and the fact that insurance covers the majority of damages payouts and/or the costs of compensating (e.g. by a public body) can be passed on through increased taxation or a raise in the cost of products (particularly true for product liability) – meaning that the costs of compensation are shouldered among many (e.g. all in a particular insurance pool, all taxpayers, all consumers) for the benefit of society members who are harmed.
3. distributive justice – while there are some differing distributive principles that exist, as a philosophical idea this derives from collectivism and is based on normative principles designed to guide the allocation of the benefits and burdens of economic activity (John Rawls was a leading proponent). Roughly – and not exclusively – the principles at play here include utilitarianism/egalitarianism and reflect an idea of social justice whereby those who are most disadvantaged will be able to benefit most from the way the system (tort here) operates. Basically, wealth (or other – such as compensation in its broadest sense) is re-distributed according to need (as opposed to the ability to pay, the ability to find fault etc).
4. restorative justice – possibly more familiar from criminal law, the theory of restorative justice in tort centres around the idea that the victim and the defendant in some way work together to assuage the harm that has occurred. While this does not preclude compensation payouts per se, the theory might include, for example, the idea that dangerous drivers not only pay compensation but must take a course teaching them new and safer driving skills, or must work for a group involved with the rehabilitation of victims of car accidents caused by negligence.

In terms of actually answering the question posed, a student would be expected to discuss whether, in fact, society as a whole does shoulder the burden of higher compensations payouts. Clearly there will be a need to reflect on the theories of justice outlined above (and possibly others) and evaluate which most closely resembles the tort/compensation system in the UK – and it may be that for different kinds of harm, the system operates in different ways. If it is decided, for example, that the idea of collective justice is most prevalent, then some argument needs to be made to answer the question in either the positive or negative – giving carefully evaluated reasons. Better answers will be able to pull in examples from case law and/or, more impressively, quotes from judgments or from policy makers/documents. Academic literature in these areas is abundant – most appropriately in the context of this question would be to start with those books/articles questioning the role of tort and compensation, such as P.S. Atiyah's 'The Damages Lottery' (1997) and the recent debate on the same initiated by Lord Sumption, responded to by Jonathan Morgan and continued by Stephen Sedley (former Lord Justice of Appeal) (see section 1.3.2).
Finally, an argument must be made. The question asks 'is it right that…?' So, if the analysis leads an answer to the point where it is decided that collective justice is the dominant form of justice in the tort system then it must still be asked whether this is the 'right' way of doing things (and right according to who and why?). Even if collective justice is not found to be the dominant model, it must be asked whether it would be right to make it so – i.e. should there be a shift from whatever model of justice we do have, towards collective justice, and why?

3. Do we (as a society) blame and claim too much?

This is clearly a question asking whether the UK has become a 'compensation culture' (in the pejorative sense – see panel in chapter 1, section 1.3.2 and also section 21.7) or not. A number of variations of this question arise, yet students should take care not to go down the route of either arguing dogmatically that the UK has (or has not) become a compensation culture. There is more to this question than that. While the compensation culture aspect is important, answers dealing with this will need to include up-to-date statistics (e.g. on the number and types of claim that are taken each year and – importantly – how many of these succeed and whether the statistics show an increase in any of these figures – many such statistics are available on the judiciary’s website – in any case note who produces the statistics that are found/used, and what their overall agenda might be), cases and comment (including academic) on the topic – to a large extent this issue is just 'background' to the real question – and no-one wants to read a ‘tabloid-style rant’.
As we see it, the real question here is about the 'too much'. What does it mean to say that (as a society) we 'claim too much' (if we do)? How much is too much (which leads to the question of how much is appropriate and why)? Should there be limits on the types of claims that can be taken, or obstacles (more than already exist) placed in the way of those who would like to be able to claim but should not be able to do so? Or are the obstacles in place already adequate in terms of preventing frivolous or undeserving claims?
A further question that could be explored is – if we do think there are too many claims (or too many inappropriate claims?), what can be done about this? And, is anything being done about it? Strong answers here might compare the responses of the previous Labour Government with that of the Coalition government – in particular the Young Report – and any statements made by the Conservative government since coming into power after the 2015 elections (and any statements made subsequent to the 2017 General Election by the Government, courts or others). The recent paper by Stephen Sedley, former Lord Justice of the Court of Appeal, listed in the t=further reading for chapter 1, would be a good starting point to read and begin formulating your thoughts.

4. Is the tension between achieving justice for claimants and doing justice by defendants simply irreconcilable?

Theories of justice (as outlined in question 2) need to be addressed and evaluated before an answer to this question is attempted. To a great extent the question posed here is largely rhetorical and will depend upon which conception of 'justice' the person answering favours, and why. Can justice to both claimants and defendants ever be achieved?

5. Should any time limitations be put on tort claims?

This question requires an exploration of the limitation periods that do exist for tort claims (probably negligence and the intentional/personal torts are the main focus here) and what problems these limitations might cause in practice (see section 21.5). Further, it requires an assessment and evaluation of whether problems caused by the limitation periods that do exist create any kind of injustice – do certain ‘types’ of claim lead to more injustice than others when claim-time periods are limited? If they do there is an argument to be made that at least some limitations should be revised or lifted. Useful cases to analyse here include (but are not limited to) Stubbings v Webb [1993] and A v Hoare, X v Wandsworth LBC, H v Suffolk, CCC v Middlesbrough Council, Young v Catholic Care (Diocese of Leeds) [2008], AB v Nugent Care Society , GR v Wirral Metropolitan Borough Council [2009], Raggett v Society of Jesus Trust of 1929 [2010], Durham County Council v Dunn [2012]) and Ministry of Defence v AB and others [2012], as well as the increasing volume of academic writing on the subject over recent years.

6. Should the tort system be more concerned with distributive than corrective justice?

See question 2: this is another way of asking for a similar answer.