Tort law should not and could not be used to achieve distributive goals - Essay Example

Tort law should not and could not be used to achieve distributive goals Tort law can be described as law that compensates individuals for harm done by the unreasonable action of the other. These types of cases are also called personal injury cases. Such laws should and could not be used to achieve distributive goals. The process of tort litigation mirrors the challenges confronting people during criminal prosecution. Tort action is defined by financial compensation for wrongs that have resulted to injury to the plaintiff, such wrong include intended harm, negligent harm and strict liability. Tort law cannot achieve distributive goals and this attempt would be illegitimate, undesirable, ineffective and non feasible. For instance tort law cannot meet the progressive redistribution of wealth from rich to poor but it is the other way round. Tort law cannot advance the status of groups that are disadvantaged in society since in so many ways it runs short of fairness and that the bottom line is compensation. Social rationality and resource allocation is against the less social valued in society practicing tort law. Tort law cannot achieve distributive goals because it is full of indifference. It is questionable that omissions in tort law are often treated as incurring less liability than acts. Treatment of omission is different from that of acts therefore tort law is law of indifference as in Slovin v Wise (1996) 3 WLR 389. Responsibility for omission is less than that for acts even if damage was identical. It is argued that limiting responsibilities for an individual especially in relation to obligation is the duty of state. In Liability for omission, a distinction is drawn between misfeasance where a party is negligent and nonfeasance where a party does nothing at all. The general rule is that there is no liability for an omission (Slovin v Wise (1996) 3 WLR 389). In justice and rights, morality places an obligation on every individual to save life whenever it is possible. A person watching a small child drown in swallow water is morally obliged to save that child. The law of omission in tort gives a leeway. Tort law is a law of monetary compensation and in cases of omission there is no financial claim that results from nonfeasance. In tort, the value of social justice cannot be realized. For instance, Party intervened during an incident that leads to injury is view as less responsible if some third party comes in and causes subsequent harm. Attention is therefore shifted from the negligent act of the defendant toward the immediate wrong inflicted by the third party. It is unjust to say that the original negligent act exemplifies the fact that where injury to property is caused though fault of another party the other party is liable to compensate for the injury caused. It goes without saying that the perpetrator of careless act should be held responsible for injuries caused through there unreasonable behaviour. in Baker v Willoughy (1970) HL the court in the case held that the duty of the motorist and pedestrian with regard to keeping a proper look-out were different; appointment of liability, 25% to pedestrian and 75% to driver. Three years later before a decision on the case was made the claimant was shot during armed robbery in the previously injured led. D still had to make full payment despite the supervening injury because the injury did not rise by accident or lantern condition. The facts of this case demonstrate clearly that tort law cannot achieve distributive goals. For justice to prevail everyone should bear responsibility for their own act. Criminal justice call for a sentence toward the offender in equal measures to the wrong done. If the offender will be a threat to the public, justice and rights of individuals provide for imprisonment. The outcome of tort law can be so unpredictable and economically it may seem difficult to measure permanent damages especially those related to health in monetary terms. In addition, foreseeable consequences are not in themselves foreseeable as seen in the Thin Skull Rule of Smith v Leech B Brian & co ltd 1962 2 QB 405) In the above case it was ruled that an individual is held responsible for the consequences of his negligence, regardless of the extra damage caused to others and is not entitled to compensation. (1962) 2 QB 405 (header) in this case, the claimant worked for the defendant, and as part of his duty he was required to lift articles, via a crane, into a tank of molten metal. While doing so on august 15 1950, an object spattered out from the tank and struck him on his arse, causing a cheek to get cancer, resulting in burn law report: 2QB 405 (header). To achieve distributive goals, In his A Theory of Justice, John Rawls used a social contract in order to show that justice is a form of fairness: an impartial distribution of wealth (John Rawls 1999 p 3). Because the claimant was hurt in the course of his duty, it is only fair if he was wholly compensated in order to meet distributive goals. Tort law cannot advance the status of groups that are disadvantaged in society instead it’s against them. Further, litigation against tortfeasor focuses on responsibilities of actors who fail to provide reasonable care to protect against foreseeable harm. Individual or institution could be the third party to include business, placement agencies, foster parents, landlords’ religious institutions, and learning institution and hospital and health centers’. It can be an individual. Unless the party is immune, any institution or individual could be named as third party. State actors are given government immunity and this will defiantly bar an individual from seeking compensation from the state. The burden of proof in tort cases is tied to showing that the third party indeed committed the wrongful act and but for the third party’s wrongful act the plaintiff wouldn’t have been victimized. In the case of Barnett v Chelsea Hospital management committee (1969) QBD in this case the doctor refused to examine and treat a patient who had gone to hospital because of stomach pain. He died later of the arsenic poisoning. It was held that he could have died anyway even if proper treatment was administered. The hospital negligence was not the cause of his death. Similar case was Hotson v East Berkshire Health Authority (1987) HL. It is sad that even after the patient’s injury was wrongly diagnosed and inappropriate treatment given causing the claimant to suffer a permanent disability, it was ruled that the claimant had not shown beyond reasonable doubt that medical negligence had worsen his condition. Justice is a divine law that is commanding, it is authoritative and upholds morality. if crimes in relation to negligence of duties went unpunished we could never achieve distributive goals; To achieve distributive goals, the law in place must have a national interest. Tort law is controlled by the victim as a plaintiff. The plaintiff controls the important decisions in tort law such as whether to file a case, proceed with the case or settle it or even seek further action victims may be comfortable filing civil rather than criminal actions especially when the victim don’t like the perpetrator to imprisoned; but wants to negotiate monetary compensation. In criminal law, the state through its prosecutor is in interest. The victim becomes a witness. The standard of criminal law is preponderance of the evidence while tort law depends on proof beyond reasonable doubt. in criminal law, right to legal cancel and right to refuse to testify form part of procedural which do not exist in tort law. The state should be the main actor in order to achieve distributive goals This is the principle of vicarious viability. It state that since if your employee harmed the claimant in the course of his employment, you bear the responsibility for it because you had the control to hire and fire him and reduce the risk of it happening again. Intervention of a third party as a brake on liability would be unjust because the defendant is the negligent cause. In this case the defendant is not liable but the person that he works for. In the event that due to his negligence life was lost, he will still be free. It is also possible that judges may not be competent enough to deal will highly sensitive case. This affects the strength of the claim and may lead to unfair judgment. The concept of justice. John Rawls(1999) claims that "Justice is the first virtue of social institutions, as truth is of systems of thought" (John Rawls 1999 p 3) Distributive justice entails fairness to all in respect to distribution of power, wealth and respect in equal proportion. The law should seek to enhance this type of equality as right and freedom of an individual and is based on social status and need based on right to property. Justice and freedom goes hand in hand with equality. Despite the capitalistic nature of the society, individuals are provided equal opportunities in fairness because the rule is well measured to serve justice. Honderich (1969) In this case distributive goals are achieved since distributive justice demands that everyone should get what they deserve. It is argued that the basis of just desert where we have unequal distribution is on the basis of handwork and therefore some members of the society will have more than others (Honderich, 1969). According to Nozick's (1974) distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history. Justice entails that a person should have some good in regard to right to property their must be a history of rightful acquisition and just transfer in case of free gift but not theft ( Nozick's 1974). A sentence in criminal law is formed as the final act of justice and should be viewed as having symbolic function. Imprison is the most common form of sentence and is aimed at ensuring fair distribution of resources, respect and rights. Laws specify the range of penalties that can be imposed for various offenses. There is effective guideline that outlines and regulates the type of punishment from which those ranges can be imposed depending on the offenses committed and offender characteristics. Torts are primarily based on monetary compensation for injury done. Criminal cases go beyond the primary basis of compensation and would seek to achieve; deterrence, denunciation and retribution covering a punitive effect or even social disapprobation. Honderich (1969) Punishment is tied to wrongdoing because justice needs maximum total average welfare for every individual. For example if a person is considered a continuous threat to security, imprisoning such a person may maximize welfare by preventing possibility of further crime. This is beneficial to the whole society therefore distributive goals are attained Honderich (1969). To attain distributive goal, the whole society must respond to wrong done. The law can emphasize on payback as opposed to total welfare of the society. Justice here entails that everyone should be given what they deserved. John Rawls (1999) said that “emphasis is on the fact that punishment should be proportional to the crime committed, and that it should be of only and all of the guilty (John Rawls 1999 p 3). Justice also aims at the needs of the victims and offenders. Offenders are encouraged to be responsible for their actions. In restoration justice there is a dialogue between the victim and offender and this is health for the healing process of victims. The offender may decide to voluntarily take responsibility. Tort law stand short of all this, it is viewed as a case for inequality as discussed above. It is also an avenue for social and economic exploitation because it main agenda if financial compensation. The concept of justice is rich and wide in scope to meet distributional goals of the society. Work cited John Rawls, 1999 A Theory of Justice (revised edition) Oxford: Oxford University Press. Nozick Robert 1974 Anarchy, State, and Utopia Oxford: Blackwell Honderich Ted, 1969 Punishment: The supposed justifications London: Hutchinson & Co., Slovin v Wise (1996) 3 WLR 389 Baker v Willoughy (1970) HL Smith v Leech B Brian & co ltd 1962 2 QB 405) Barnett v Chelsea Hospital management committee (1969) QBD Hotson v East Berkshire Health Authority (1987) HL Read More