The Justice of Torts. From its foundation, the law of Torts was designed to provide justice to those who had felt an injustice had been done against them.
From its foundation, the law of Torts was designed to provide justice to those who had felt an injustice had been done against them. "It was to fulfill the objective of preventing "blood feuds" that the law developed an action for compensating harm, which eventually became the law of torts." (p. 4, Giliker et al, 2004) Justice that had before been arbitrary and violent became reasoned and peaceable. We can derive from this that the original intent of the law of torts was to provide justice; unlike, for instance, contract law, which was to ensure the smooth running of the market in England. Furthermore, there is a basic tenet of Torts, which was outlined by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25,39: "The sum of money which will put the party who has been injured or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation." (p. 2, Ibid.) This seems to have a particular form of justice in mind; not retributive, but restorative, i.e. that justice comes from restoring to people what they have lost. What is actually contentious, though, is whether the law of Torts actually provides the justice that it historically set out to provide, and whether it adheres to this principle laid out by Blackburn that seems almost self-evident.
The principles of Tort are not solely peaceful as Blackburn implies. Tort law also has a deterrent aspect; the threat or imposition of damages, known as exemplary damages, to alter people's behaviour (p. 540, Steele, 2007.) While Tort law does not generally impose a moral fault, it is used to alter people's behaviour (p. 74, Horore, 1995). Since the law of Torts is also the law of (unintentional) civil wrongs, exemplary damages may be imposed to pressure people into refraining from committing civil wrongs. These damages, imposed for their deterrent nature, are not always proportionate to the wrong committed; in fact, "[punitive] damages are [purported to be] justified on the basis of their deterrent effect." (p. 5, Ibid.) This gives the law of Tort a nature somewhat similar to that of the criminal law. Those concerned with the operation of a free judiciary might consider this quite unjust. Giliker et al give two reasons as to why using Tort law in such a manner can be considered wrong; "First, in a civil trial, the punishment may be meted out in the absence of the evidential and procedural safeguards to which a defendant is entitled in criminal proceedings. Secondly, because tort law and criminal law operate concurrently, the defendant may receive "double punishment" for a single wrong" (Ibid.) The use of Tort law to show to people that some actions are not acceptable (p. 75, Horore, 1995) is not dissimilar to criminal law. Tort, however, is a civil law. While the use of both criminal and civil law to, in the words of Horore; "announce to society that these actions are not to be done and to secure that fewer of them are done," can not really be called either just or unjust it does show that the State has a very clear scope by which it controls the sort of actions a population may undertake. At the same time, if Tort law undertakes corrective justice that the criminal law also attempts (i.e. criminal negligence v tortious negligence) then one must consider the way in which a defendant is tried. English law is very concerned with the concept of the free and fair trial; an action that the criminal law attempts to prevent will have stricter safeguards for the defendant than a tort trial; for instance, a defendant in a civil law case can be guilty "on the balance of probabilities" whereas a criminal case operates on a defendant being guilty "beyond all reasonable doubt." It has, in other words, a possibility to be corrupted to serve against justice.
However, in addition to theoretical principles, there is one specific area of Tort Law that has evolved to a level that can be discussed in terms of the injustice it has created. English Law does not recognise a common law right to privacy (p. 805, Steele, 2007.) However, what does exist is a common law right; or at least, have had the right, for many hundreds of years, to freedom of speech. Indeed, Lord Goff said in the Spycatcher case; "We pride ourselves on the fact that freedom of speech has existed in this country... longer than... any ...
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However, in addition to theoretical principles, there is one specific area of Tort Law that has evolved to a level that can be discussed in terms of the injustice it has created. English Law does not recognise a common law right to privacy (p. 805, Steele, 2007.) However, what does exist is a common law right; or at least, have had the right, for many hundreds of years, to freedom of speech. Indeed, Lord Goff said in the Spycatcher case; "We pride ourselves on the fact that freedom of speech has existed in this country... longer than... any other." (p. 617, Loveland, 2009.) In recent years, the growth of privacy law has come in to conflict with freedom of speech, and more accurately, the freedom of the press. This is well illustrated by Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB). Here, Mosley did not even contend that what News Group Newspapers (NGN) Ltd had published was incorrect or wrong; simply that there had been a breach of confidence and that his privacy had been violated. In this case, the Court inflicted damages on a newspaper company who had printed the truth.1 In effect, NGN Ltd's right to freedom of speech had been suppressed by the Courts. One could question whether this could fall under defamation; but since truth is a complete defence to defamation, again, it seems that Mosley did not contend that what the Newspaper had published was true or else he would surely have pressed for libel.
In a free democracy, the freedom of speech and of the press is of paramount importance. Key historic legal articles outlining human or natural rights have named it as a natural or human right2345.
Yet, recent advancements in the English law of Torts have quashed this basic democratic right in the favour of the protection of people's privacy. A clear distinction must here be drawn. Protection from defamation too, is an English common law right6. Yet privacy does not concern defamation because defamation is a statement made that was untrue. Hence the absolute defence of truth in defamation law (p. 678, Steele, 2007) which protects people's reputation from untruthful comments that may (or, as we will see, may not) have harmed them. Privacy is used by individuals who do not wish to meet the consequences of actions and so intend, by the use of the Courts, to suppress one of the very basic tenets of a democracy: the right to publish in words or to say in public that which is true. When concerning the provision of justice by Tort law, this plain fact imposes an intolerable injustice. If Lord Blackburn's definition of the law of Torts is to be taken seriously, it seems hard to reconcile it with a privacy law that assaults freedom of speech. In fact, mixing the two together seems to imply strongly that freedom of the press is wrong.
Lord Blackburn says that the "party who has been injured" has "sustained a wrong." Yet in privacy cases such as Mosley, it is hardly controversial to state that no wrong has occurred. The press have reported what is true, as is their right. Few people would believe that it is wrong for the newspapers to publish something that is factually correct; in fact it might even perceived as a welcome move. Either, Blackburn is wrong, and Tort law is being adapted to provide compensation for people whether or not they have "sustained a wrong", or the Tort of Privacy is in contradiction of the basic principle of English Tort law. Horore too, claims "corrective justice" as a raison d'etre of Tort law. (p. 80, 1995.) But it is hard to see what was corrected in this case, unless the free operation of the press is something that deserves correction! It seems that when we compare the justice of the two contrary suggestions then if we desire justice, Privacy law is an obstacle, not an advance.
One other form of justice purportedly supplied by Tort law is distributive justice. Horore states that corrective justice essentially arises from (risk-)distributive justice; that costs of actions ought to be distributed between those who took the risks of taking the action.
Essentially, those who have undertaken actions with risk (e.g. negligence) should be responsible for the harm that extends from taking that risk. In this area, English Tort law is well developed. Costs are imposed upon those who take unnecessary risks. A Duty of Care, for instance, would be imposed upon those who meet the Caparo test (p. 156, Steele, 2007.) Those who have a Duty imposed upon them by the law but who act negligently towards those under their care would be forced to pay damages; in other words, when one takes a risk that has a cost, they are the ones who, in law, bear the cost. I will not here go into detail of all the myriad cases in English law were a party has behaved negligently (i.e. has taken a risk) and as such has had to pay damages; I will, in brief, point to; Page v Smith [1995] UKHL 7, McGhee v National Coal Board [1972], 3 All E.R. 1008, and Smith v Leech Brain & Co [1962] 2 QB 405, as instances of cases were a tortfeasor has taken a risk and had to bear the costs of the damage towards the plaintiff. It seems in the area of (risk-)distributive justice; if we accept that this sort of justice is in fact justice at all, Tort law is well defined and does provide (risk-)distributive justice. Costs in English law are generally allocated to those who have taken the risk that caused the harm.
Interestingly, Conaghan et al consider this a derisory concept; "the foundation of tort law... the principle of the individual rather than societal responsibility for the misfortune of others." (p. 3, 1993.) Conaghan et al go on to say that "political and legal energy... should be redirected towards the consideration and possible construction of alternate loss distribution mechanisms based on the acceptance of social responsibility for individual misfortune." (Ibid.) Nonetheless, this claim should not be taken in the improper context. Conaghan et al criticise the sort of justice that Tort provides. In fact, for their criticisms to be leveled, it must be assumed that Tort provides a sort of justice that they disagree with otherwise their critique would necessarily not be leveled at the form of justice presently supplied. So even authors who disagree with Tort can recognise that it does provide some form of justice. The different theories of philosophical distributive justice; from Rawls to Nozick propose justice through deontology; that is, a correct moral position to take. Some authors; Richard Posner for instance, posit a theory of Tort law that is strictly designed for economic efficiency (p. 234, Rabin, 1990.) Yet that so much of a debate exists around the way in which Torts provides implies with a reasonable strength that Torts provides at least some form of justice; the argument over whether or not it should provide any conception of justice receives a great deal less atttention.
In summary, Torts does provide a form of justice but there is not always clarity on what sort of justice it provides. Largely, its method of distributive justice places costs on those who risk taking them, and its method of corrective justice places exemplary costs on actions that are deemed not necessarily wrong but on the whole undesirable. In addition to this, in recent years, Tort has expanded in a way that has attacked other areas of what we might call "public justice", that is, freedom of speech. Torts does provide justice: however, that justice is one that is likely to be contentious for a great deal of time.
BIBLIOGRAPHY
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Conaghan, J and Manswell, W., (1993) "Chapter 1: Introducing a critical perspective" from Conaghan, J and Manswell, W., The Wrongs of Tort, pp.1-9, London: Pluto Press
Giliker, P and Beckwith, S, (2004), "Tort" (2nd Ed.) London: Sweet & Maxwell
Horore, T, (1995), "Chapter 3: The Morality of tort law, questions and answers" from Owen, D. G. (ed), Philosophical Foundations of Tort Law, pp.73-95, Oxford: Clarendon Press
Steele, J, (2007), "Tort Law: Text, Cases & Materials", Oxford: Oxford University Press
http://news.bbc.co.uk/ - BBC News
http://www.constitution.org - Constitution Society
http://www.echr.coe.int - European Court of Human Rights
http://www.lonang.com/exlibris/blackstone/bla-101.htm - The Laws of Nature and Nature's God; Commentaries on the Laws of England, Sir William Blackstone
http://www.un.org - The United Nations
http://www.usconstitution.net/const.html - The US Constitution
http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/24_07_08mosleyvnewsgroup.pdf
2 http://www.constitution.org/eng/eng_bor.htm
3 http://www.usconstitution.net/const.html#Am1
4 http://www.un.org/en/documents/udhr/
5 http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf
6 http://www.lonang.com/exlibris/blackstone/bla-101.htm
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