Tort, through its stretched history has pursued different aims: compensation, appeasement, punishment/justice, deterrence, and efficient loss spreading of the cost of accidents. All of them are significant, but at various stages one may have been more prominent than other. Granville Williams3 identified that “these aims can overlap, but may also conflict”. I will consider all of them step by step, trying to make a comparison of aims in different legal systems.
Compensation is regarded as most important function of tort law. The full compensation can be defined as full reimbursement of loss to the claimant, irrespective of defendants’ fault degree. Statutory provisions require liability insurance in order to insure that there is a plenty of
funds available to satisfy a judgment. Most people just want to be compensated for infringements and don’t see objectives with requiring the wrongdoer to pay. “Wrongdoing” means measure of the culpability of the defendant’s behavior and does not deal with its trend to impose damage on others.
Tort lawyers often regard tort as “the compensation system that serve best to the particular victim on the basis of the pre-accident situation and prognosis of his future. However, it remains expensive, unstable and dilatory”. The Royal Commission on Civil Liability and Compensation for Personal Injury (1978) in England estimated that it cost 85 pence to award 1 pound of the net benefits to the victim. The tort system is unsteady because the compensation may depend on finding a wrongdoer and credible witnesses, not to mention a good lawyer. Delay also can produce injustice especially when it tends to benefit, for instance insurance companies, who can delay payments, hoping that such delay will compel plaintiff to accept low settlement.
In the Civil law of Uzbekistan there is an institution of obligations for damages (chapter 57 of Civil Code of the republic Uzbekistan). Same as in the UK compensation function is not always effective in terms of practice. Even if court has passed a resolution about the damages’ compensation it does not mean that this resolution will be fulfilled. It is possible that defendant may have no property or money so as to pay to the claimant. Deprivation of his/her dwelling for a dept is not in the common practice of our courts. However there is an article which allows changing the degree of compensation by request of the defendant, if he is poor or invaliding (article 1012 of the Civil Code of Uzbekistan). On the other hand will the plaintiff feel satisfied in this case?
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3 Glanville Williams “The Aims of the Law of Tort” (1951)
Appeasement comparing to other torts’ functions is not time consuming and expensive (in terms of court expenses). Sometimes it is preferable for the plaintiff to receive compensation from defendant and have no anxiety or worry about judicial procedure, as it sometimes can be protracted process. However not all claimants are satisfied by such option, most of them want to “bring the defendant to book”4 and here psychological side plays its role. The accountability, the public acknowledgment that the defendant is accountable for the wrong suffered by the claimant should not be discharged as it is a relevant concern of the tort law. Accountability in some cases can be against professionals and public authorities, where there is an element of trust placed in the defendant.
In our society appeasement is not so wide-spread, except of road accident cases, where people come to the consensus at the place of the accident. Nevertheless article 179 of Civil Code of Uzbekistan provides opportunity to conclude case with peaceful agreement without court-examination, but initially it is necessary appeal to court. Sometimes, attempts of claimant decide case peacefully turns for him/her on criminal case with blaming in extortion. For instance as it happened in one case. Woman has found out a finger in a package with curds and called to the manufacturer to say that if he will compensate her moral damage she will not claim. The manufacturer have called the police and blamed woman for extortion. Court held her liable and she was convicted for two years.
Justice according to M. Jones has two aspects: retribution against wrongdoer and compensation for the victim. I don’t agree with terms, used by M. Jones. In my opinion “retribution” is not relevant term in this case. Even in criminal cases State does not take mission of revenge, punishing the criminal, but tries to re-educate person, limiting some of his/her freedom.
Another point “Does justice require compensation because plaintiff has suffered a wrong or because he has suffered a loss?” is also controversial. As from my point of view compensation satisfies both moral and material loss. Claimant, when receiving reimbursement feels comfortable psychologically and in material sense either.
One more element of justice which should be covered is a manner in which injure was caused. “The wrongfulness or lawfulness of the defendant’s conduct does not change the nature of the claimant’s claim, in justice, to compensation, although it might change his claim that the defendant is the person who should pay compensation.” 4
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4 M. Jones, 2003. Textbook on torts. New York: Oxford University Press. p. 15
I think that manner in which injure was caused is not important for claimant. For instance, for a plaintiff broken leg caused by the defendant’s negligence does not make difference from a broken leg caused by accident. Fact is that leg is broken, claimant has received harm and here another question arises:
Is it important for the plaintiff who will pay the compensation? The insurance company or the wrongdoer, from whom he/she has suffered damage? In my opinion, in most of the cases claimant is not concerned in question who compensate actual harm. The main objective is to receive the compensation for material loss or moral suffer. Even if insurance company will reimburse the damage, defendant meets a principle of regress, which is used in both civil and common law.
Again, in practice function of justice is not always efficient. For example defendant has no enough money or property to satisfy the claim or other cases. Also, there can be situations when previously such claims were refused (Alock v Chief Constable [1992] 1 AC 310).
Deterrence is necessary in order to prevent from wrong conduct. Some torts provide an effective deterrence, while some do not. For instance in case of defamation it can prevent other publishers from publishing defamatory articles.
If people are held liable in negligence to take reasonable care, then they will try to act more carefully and this can help to avoid different kind of accidents.
However, as I mentioned before deterrence is not effective in some cases. Let us consider negligence of motorist. If the view of serious damage and probably even risk of death of himself does not encourage to drive more carefully, how can threat of an award of damage against him do so? Deterrence is really efficient in cases where risk can be reasonable foreseeable and precautions are helpful. In cases of employee/ employer relationship, employer is responsible for the employee’s safety and it is his/her duty to prevent any risk. It seems to me it really helps to improve quality of service, because employer tries to develop quality of equipment and other staff in order to avoid accidents. Of course there are many cases where this is not fulfilled and causes employees’ injuries, but this is another problem.
It is necessary to distinguish between specific and general deterrence. First one depends more on warning effect of the tort law. However this is limited where insurance cushions the defendant from the economic consequences of an adverse judgment. Also, it almost completely evaporates in instances such as road traffic accidents where harm in most cases result from momentary inattention, which no tort award can ever prevent. Therefore, this aims of tort in some cases a second-based means for preventing accidents.
General deterrence, argued by the US scholar Guido Calabresi in The Cost of Accidents (1970) is different. Calabresi believes that this kind of deterrence involves deciding “what the accident costs of activities are and letting the market determine the degree to which, and the ways in which, activities are giving people freedom to choose whether they would rather engage in the activity and pay the costs of doing so, including accident costs, or, given the accident costs, engage in safer activities that might otherwise have seemed less desirable.”
One more issue which I did not cover in my coursework so far is types of remedies and types of damages. However I think that it is a separate, extensive sphere of tort law and that is why I decide to include just brief explanation of it. As it is known, two main remedies are available to the plaintiff in a tort. They are: damages for harm compensation and where it is relevant an injunction to prevent future harm. Damages considered as a major remedy. Some types of remedies, such as self-defense, could be regarded as a remedy, but in most of the cases courts do not encourage it.
Nominal damage awarded when legal rights of the plaintiff were infringed, but there is no actual loss. It is common is cases of trespass to land, like in the case League Cruel Sports v Scott5 where no material damage was caused, but there was a trespass and it was held that defendants were liable and damages were awarded. This damage is tending mainly to show that rights of the plaintiff are protected.
Contemptuous damage awarded when the court considers that the actions of claimant were without merit and should not have been brought. The problem is that claimant can have a risk of costs which awarded to the successful party. Also judge can order claimant to pay the defendant’s costs. Contemptuous damage usually consists of the award of smallest coin of the realm and in my opinion claimant, considering fact of risk and minimal compensation can merely refuse to claim and this can be assessed like ineffectiveness of tort. However contemptuous damages are common in libel actions like in case Hulton v Jones 6, where newspaper was reasonable for libel.
Exemplary (punitive) damages are awarded in order to “punish” the defendant, who knew that he/she is committing a tort, but nevertheless went ahead because of expected profit from this tort.
Exemplary also awarded plus to the compensatory damages in order to prevent similar conduct of the defendant and others in future. It can be awarded in cases of defamation like in Case of Elton John and Sunday Mirror newspaper John v MGN Ltd7 where exemplary damages were awarded.
Pecuniary damages can be calculated in financial terms. Damages can be awarded in cases of loss of earnings. However the problem is that it is difficult to calculate a future income.
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5 League Against Cruel Sports v Scott [1986] 1QB 240
6Hulton v Jones [1910] AC 20
7 John v MGN Ltd Court of appeal [1997] QB 586
There are three steps in calculation of income and the third one (work out the present capital value of future loss) produce a problem – person can be overcompensated if he for example has lost 10000 pounds per year and awarded 100000 pounds.
Non-pecuniary cannot be calculated in financial terms: suffering, shock etc. This also covers “loss of amenity” – loss of ability to enjoy the life. However one issue can be controversial – to whom the damages should be awarded, if person, for instance unable to appreciate the loss (in case of coma). Case West v Shepherd8 illustrates this problem. “The claimant, aged 41 was injured in a road accident and she suffered “post-traumatic spastic quadriplegia and intellectual deficit”. She may have been aware of her condition to a slight degree, but the House of Lords discussed the question of the basis of awards for loss of amenities. Held: that a person would be entitles to damages even if unaware of the loss. In my point of view that decision was fair, because care for the women in coma requires big expenditure (medical service, drugs etc.) and of course it does not matter whether claimant recognize his/her self condition.
So, as I tried to illustrate in my coursework, tort is not always effective in satisfying its aims, because people are not equal socially, intellectually, physically, mentally. Also because the actual process of compensation takes very long period of time; requires quite huge material expenses and courts are not always operative and flexible. However this is one of the major remedy to be compensated for the harm or injuries.
Total amount of words – 2540
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8West v Shepherd HL [1964] AC 326
Reference:
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Jones, M., 2003. Textbook on torts. New York: Oxford University Press.
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Kidner, R., 2002. Casebook on torts. New York: Oxford University Press
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Cruz, P.,2004. Comparative law in a changing world. London: Cavendish Publishing Limited.
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Murphy, K., 2003. Street on Torts. UK: Lexis Nexis.
- Britannica Online Encyclopedia. Article about law of tort
Retrieved: November, 25 2007 from:
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Article about Purposes of tort law.
Retrieved: November, 28,2007 from:
Jonathan Baron, 2003.Intuitions about penalties and compensation in the context of tort law. Retrieved: December, 1, 2007 from:
Geistfeld, M. 2003. Negligence, compensation, and the coherence of tort law.
Retrieved: December, 5, 2007 from
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