An Analysis of the Distributive Role of Tort Law
Introduction
Tort law involves acts and omissions that impose liability. A basic definition of tort is that it is a wrongful act.[1] Stevens describes this wrong as a breach of duty, which entails a violation of rights.[2] This violation of rights is what the law of tort is all about. The most crucial goal that tort law seeks to achieve is compensation for the loss.[3] Several theorists have attempted to analyze the nature of tort law and theorize its purpose. One such theory involves explaining it from a distributive justice perspective. This theory proposes that the role of tort law is to create equality by apportioning burdens and benefits among individuals in society. When critically analyzed, this theory does not fully reflect the law of tort. A more substantive description is that courts apply both distributive and corrective justice as they decide cases involving tort claims. However, distributive justice takes a subordinate position. Although distribution is not the primary role of tort law, its effect is evident in practice. This paper provides a critical analysis of the concept of distributive justice as it relates to tortious claims. It seeks to determine the extent to which the law aids in the allocation of rewards and costs in society. It then evaluates corrective justice and how it applies to the area of tort. Finally, it develops an argument for a curative instead of a distributive approach.
The Nature of Tort Law
Tort law provides an opportunity for parties to be held responsible for their wrongful acts and omissions. It involves three key elements. Firstly, there is an interest or a right that the law provides. Secondly, there is a form of conduct that the law prohibits, and thirdly, the law provides a solution that safeguards the interest and sanctions the prohibited acts.[4] It presents a system of rules that society follows to prevent the injury of individuals in the community. It also ensures that when individuals are injured, the party that injured them provides compensation for their suffering. Tort law has two main functions: compensation and deterrence. It also has a distribution function, which involves spreading liability to a group of people rather than being borne by one person.[5] However, the main goal of the law of tort is compensation. It facilitates the remedy of loss or injury by the tortfeasor.
Distributive Justice
- Definition
Distributive justice involves spreading burdens and benefits equally within society. Aristotle defined it as geometric equality, which assumes that society allocates some resources to more than one person.[6] Each person merits a specific quantity of the resources. Merit determines what each party receives. It is a variable that is determined based on the case at hand. The parties receive a portion of the resources according to a ratio of merit. The approach achieves equality in the sense that each party gets what they merit. For example, if a party is more virtuous than another, then something needs to be done to bring the less moral party to the level of the more moral one.[7] Distributive justice, therefore, entails a reorganization or redistribution of benefits, burdens, rewards, costs, or resources to ensure that each party gets what they merit, and its result is equality.[8] Another definition of distributive justice is that it focuses on distributing benefits and burdens within a specific group purely based on the fact that they are members of the group.[9] This definition presents the political aspect of membership to a specific group as a critical principle in distributive justice.
- The Concept of Distributive Justice in Tort Law
Distributive justice in the law of tort specifically involves benefits and burdens. Tort law contains a structure that facilitates the distribution of risks and responsibilities. It does not set out a specific standard that determines the distribution. It, however, bases decisions on moral principles that are applied on a case by case basis.[10] An example is mandatory insurance policies, which provide an avenue for the distribution of risks between a large number of individuals.[11] When an accident occurs, the insurance company spreads liability since the driver does not solely bear the burden of paying damages. The company retrieves costs from a collective fund that contains contributions from several drivers. Posner presents an illustration that focuses on the use of resources.[12] He gives the example of a railway engine that sparks and destroys crops planted by farmers along the rail’s easement. This scenario aims to provide a solution that maximizes value for both the railroad owner and the farmers. The question would be whether both parties, only one party or none of the parties, should act to maximize value. He presents strict liability as a viable option, where a court would hold the railroad owner liable whether he acted negligently or not. The liability approach will reduce the complexity of litigation by providing some form of certainty. It will also ensure that the railroad owner undertakes research to prevent situations where he has to compensate the farmers for losses. The result will be that parties will experience a form of deterrence. The court also addresses both parties’ economic interests to determine which party has merit and to what extent they do. When the parties attain a kind of equilibrium, they maximize their value. Therefore, tort law has distributive value.
The result of most claims in tort has a distributive aspect. Although tort may not have distributive justice as its aim, its impact is distributive.[13] Tort law usually decides the parties that will bear the cost of an injury. For example, in an accident claim, tort law determines which party’s insurance agents will be responsible for accident costs. Similarly, in terms of vicarious liability, tort law identifies instances where an employer will be considered responsible for the wrongdoing of employees. It, therefore, distributes cost and reward to the parties that merit it. A party that is responsible for breaching a rule or taking an action that the law has sanctioned will bear the burden or expense of the loss that the act caused. On the other hand, the party that suffered an injury receives a benefit from compensation for the harm. The two actions create an equilibrium since both parties have received what they merit.
Courts may apply tort law as a tool for social justice. This concept goes to the core of distributive justice. A court may consider it prudent to rule in a certain way to ensure that social justice prevails. For example, in the Frost case, the court recognized that it had previously denied compensation to victims of a disaster who had suffered mentally.[14] Four policemen had then sought the same remedy before the court. The court stated that a prudent man would consider it unacceptable for the policemen to receive compensation, whereas the court previously sent bereaved relatives were away emptyhanded. Similarly, in the MacFarlane case, a couple sued for reimbursement for expenses incurred after having an unwanted child.[15] The court declined to compensate them after a medical practitioner gave them negligent medical advice on sterilization. Lord Steyn explains this as a decision founded on distributive justice.[16] It would be imprudent for a court to compensate the couple for an unwanted child when several couples in society are unable to have children.
- Distributive Inequality
Despite the apparent depiction of tort law as distributive, most cases do not attain it. Tort focuses on upholding rights and moral principles. However, approaching it from a purely distributive angle presents a myriad of issues. Firstly, tort law has limited coverage.[17] It only addresses a party who has suffered a loss and can point to a tortfeasor as the person responsible for the loss. Further, the tortfeasor must have the resources to compensate the injured party for the injury. This fact means that tort law does not entirely distribute benefits and burdens where the injured party cannot identify a tortfeasor. In such a scenario, the injured party does not get what he/she merits, that is, the benefit, and the tortfeasor does not bear the burden of his/her errant action. Therefore, the distribution of rewards and costs does not take place. The result is that tort law does not fully achieve the equilibrium that distributive justice attempts to attain.
Secondly, in accident claims, the benefit-burden concept perpetuates inequality. Distributive justice aims at creating a form of equality. When the law provides a mandatory insurance requirement, each automobile owner is required to obtain a policy and contribute to premiums. If an accident occurs involving one errant driver who causes injury to another party, the entire group of drivers covered by the policy bears his burden. This approach has a distributive effect but does not attain distributive equality. Several drivers who are not at fault and have keenly followed all the rules and moral obligations bear the errant driver’s liability.[18] Therefore, the burden, though distributed, is not justly borne by the right party. Ideally, the only party that should take full responsibility is the errant driver, whereas the injured party should receive the benefit. The other drivers who have carried a part of the weight have done so without meriting it.[19] This concept distorts the equilibrium that distributive justice stands for. The case of a manufacturer distributing liability to consumers presents the same position. Courts cannot distribute burdens at the expense of fairness and the rights of other parties, which tort law seeks to uphold.[20] Tort law fails at achieving distributive equality in this manner.
The expenses that arise as parties act based on tort law also perpetuate inequality. Legal fees spent in pursuing a claim under tort law is significantly high. Further, insurance premiums are high. These contribute to the high cost attributed to the tort system. However, other incidental charges make a claim under tort law expensive. When a party intends to sue, they must pay for an investigation that will establish fault.[21] The investigation involves conducting interviews, consulting medical and technical experts, and employing advisers. The high costs of suit create a situation where injured parties do not fully realize the benefits due to them. Sometimes money is spent by the injured party, but the court fails to award damages. These expenses lead to a more significant state of inequality. Similarly, a tortfeasor may spend a lot of money to put up a defense but end up losing the case. They will have to pay damages in addition to the costs, which results in inequality. Therefore, from both points of view, one cannot consider tort law to be a distributive system. It may not attain the equality envisioned by distributive justice.
- Corrective Justice
Corrective justice involves a wrongful act that affects two parties. The court has to resolve such an action to restore the injured party to his/her initial position. Aristotle presumes that two parties have interacted in a manner that produced a wrong, which then creates inequality between the two parties.[22] The inequality arises from the fact that one party has subtracted some good from the other and added it to themselves. To restore equality, the party must deduct what they have taken and give it back to the other party. Aristotle presents it as an arithmetic concept.[23] However, it applies to losses that do not have an arithmetic quality. The critical point is that it seeks to reinstate the injured party’s initial position. In doing so, it restores equality.[24] According to Weinrib, the position that the court has to restore is equality. He brings out the idea that people interact as free agents.[25] As they interact, they must respect other individuals’ freedom as well. Further, he explains that the loss caused by a wrongdoer is not factual but normative. Right is defined as the lack of a loss rather than the presence of injury. This definition means that the court can remedy even the prospect of damage to a party. For example, a company that dumbs chemical waste can be held liable for the probability that residents of that particular place might suffer.
Corrective justice focuses on individual responsibility rather than collective responsibility. It seeks to identify the person responsible for a wrongful act and ensure that the person takes responsibility.[26] Since the wrong has already been done and is borne solely by the injured party, corrective justice will aim at finding a person intricately connected to the wrong. The court will then shift the burden borne by the injured party to that person. Tort law ensures that it transfers the total value of the burden borne by the injured party to the tortfeasor in the form of damages.[27] This approach restores the state of equilibrium that existed before the tortfeasor committed the tort. The role of tort law exemplified in compensation is evident in this form of justice. Two conditions must be present; that another person acted wrongfully and that the tortfeasor caused the loss. These are the wrongful act or omission and causation. Corrective justice focuses on fairness. It differs from the idea of distributive justice, which may emphasize on spreading the liability, which affects fair judgment in the process.
Tort law exemplifies corrective justice by focusing on transactions between individuals. It does not look at individuals separately; neither does it focus on society as a whole. It examines the relations that take place between individuals. Primarily, it seeks to establish an interpersonal connection between individuals and address wrongdoing within that interaction.[28] It then resolves the injustice suffered by a party. Corrective justice imposes a personal responsibility to act justly on individuals. The result is that an individual will solely bear the burden or liability of their infractions.[29] It also presents a form of reciprocity, where individuals are repaid or treated according to their actions. Tort law comprises of guidelines and moral precepts that impose individual responsibility on people who cause harm.[30] Its primary purpose is to protect the rights of individuals against infringement. By contrast, distributive justice focuses on the broader social welfare and aims at ensuring that burdens are distributed equally among members of society.[31] A court that restricts itself to the broader social welfare will limit the achievement of its corrective role of the law of tort.
The corrective justice character of tort law may lead to an impact that does not reflect distributive fairness. Even though tort law is distributive, its distributive potentials work within its correlative structure.[32] The rights of the injured party and the obligations of the tortfeasor are mutual.[33] The obligations create a perception of relational responsibility. Although the principles of tort law indicate that it has a distributive mechanism, corrective justice determines how those principles will be applied.[34] In effect, the underlying principle that applies in tort law is that of correction. It seeks to correct the harm that the tortfeasor causes to an injured party. Distributive justice takes a subordinate position. Therefore, there may be instances where the court does not distribute burdens. Instead, it achieves justice by assigning the responsibility to the party that causes harm. It brings a connotation of fairness, brought about by corrective justice, as more significant than distribution.
Conclusion
Tort law is primarily concerned with enforcing rules against individuals who perform infractions. It aims to ensure that individuals receive compensation for the losses they suffer when other parties infringe on their rights. This approach goes to the core of corrective justice. Distributive justice places emphasis on society as a whole rather than personal responsibility. It presents a scenario where the focus shifts from the harm suffered by an individual to the greater good of society through the distribution of the burden among several members of the community. It purports to create equilibrium or equality in society. However, when applied to the law of tort, it creates inequality because the parties who bear the burden were not involved in the wrong. The fact remains that the distributive nature and impact of tort law are evident in some cases. However, one should not consider distributive justice to be a primary purpose of tort law. The most critical role of tort is to ensure that individuals do not infringe on others’ rights. It upholds the law that relates to relations and interactions between people. The approach that genuinely achieves the desired goal is corrective justice. In essence, corrective takes a paramount position, whereas distributive justice takes is subordinated as courts implement the law of tort. As Cane suggests, the law should bar courts from adopting a distributive approach, and other regulatory bodies should take up the role.[35] It will ensure that the law of tort achieves its purpose by preventing the violation of rights and punishing any such breach.
Bibliography
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Cane P, The Anatomy of Tort Law (Hart Publishing 1997)
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Steyn L, ‘Perspectives of Corrective and Distributive Justice in Tort Law’ (2002) 37 Irish Jurist (1966-) 1
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Frost and Others v Chief Constable of South Yorkshire Police and Others [1992] 2 AC 455
Macfarlane and Another v Tayside Health Board (Scotland) [2000] 2 AC 59
[1] Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law: To Which is Added the Draft of a Code of Civil Wrongs Prepared for the Government of India (Stevens 1895) 2.
[2] Robert Stevens, Torts, and Rights (OUP Oxford, 2007) 2.
[3] Ibid 320.
[4] Peter Cane, The Anatomy of Tort Law (Hart Publishing 1997) 1.
[5] Stevens (n 2) 323.
[6] Hanoch Sheinman, ‘Tort Law and Distributive Justice’ in John Oberdiek (ed), Philosophical Foundations of the Law of Torts (Oxford University Press 2014) 361 <http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198701385.001.0001/acprof-9780198701385-chapter-18> accessed 7 May 2020.
[7] Ibid 362.
[8] Ariel Porat, ‘Questioning the Idea of Correlativity in Weinrib’s Theory of Corrective Justice’ (2001) 2 Theoretical Inquiries in Law 163.
[9] Dennis Klimchuk, ‘On the Autonomy of Corrective Justice’ (2003) 23 Oxford Journal of Legal Studies 49, 50.
[10] MA Loth, ‘Corrective and Distributive Justice in Tort Law: On the Restoration of Autonomy and a Minimal Level of Protection of the Victim’ (Social Science Research Network 2018) SSRN Scholarly Paper ID 3141807 10 <https://papers.ssrn.com/abstract=3141807> accessed 7 May 2020.
[11] Ibid 5.
[12] Richard A Posner, ‘Strict Liability: A Comment’ (1973) 2 The Journal of Legal Studies 205, 210.
[13] Emmanuel Voyiakis, ‘Rights, Social Justice and Responsibility in the Law of Tort’ (2012) 35 21, 450.
[14] Frost and Others v Chief Constable of South Yorkshire Police and Others [1992] 2 AC 455.
[15] Macfarlane and Another v Tayside Health Board (Scotland) [2000] 2 AC 59.
[16] Lord Steyn, ‘Perspectives of Corrective and Distributive Justice in Tort Law’ (2002) 37 Irish Jurist (1966-) 1, 5.
[17] Stevens (n 2).
[18] Ibid 320.
[19] John CP Goldberg, ‘Twentieth-Century Tort Theory’ (2002) 91 Georgetown Law Journal 513, 544.
[20] Voyiakis (n 13) 469.
[21] Peter Cane and PS Atiyah, Atiyah’s Accidents, Compensation and the Law (Cambridge University Press 2013) 393.
[22] Sheinman (n 6) 362.
[23] Ibid.
[24] Peter Cane, ‘Distributive Justice and Tort Law’ (2001) 2001 New Zealand Law Review 401, 406.
[25] Ernest J Weinrib, The Idea of Private Law (OUP Oxford 2012) 157.
[26] Jules Coleman, ‘Risks and Wrongs’ [1992] Faculty Scholarship Series 645 <https://digitalcommons.law.yale.edu/fss_papers/4191>.
[27] Goldberg (n 19) 570.
[28] Allan Beever, ‘Corrective Justice and Personal Responsibility in Tort Law’ (Social Science Research Network 2008) SSRN Scholarly Paper ID 2288258 5 <https://papers.ssrn.com/abstract=2288258> accessed 7 May 2020.
[29] Gregory C Keating, ‘Distributive and Corrective Justice in the Tort Law of Accidents’ (Social Science Research Network 2001) SSRN Scholarly Paper ID 269347 200 <https://papers.ssrn.com/abstract=269347> accessed 8 May 2020.
[30] Ernest J Weinrib, ‘Deterrence and Corrective Justice’ 50 UCLA Law Review 621, 634.
[31] Maria Lee, ‘Safety, Regulation and Tort: Fault in Context’ (2011) 74 The Modern Law Review 555, 575.
[32] Cane (n 24) 419.
[33] Alex Stein, ‘The Domain of Torts’ (2017) 117 Columbia Law Review 535, 555.
[34] Cane (n 24) 405.
[35] Ibid 420.