Abstract:
… The underlying premise of this paper is that although the structure of tort law is generally informed by corrective justice, that is, consideration is given only to the relative positions of the injurer and victim in a dispute, the tort system often reflects distributional considerations or broader societal interests. Thus, tort law principles, in particular those relating to the determination of liability, are rarely conceived solely in terms of correlativity and hence a bilateral engagement between the victim and tortfeasor. Rather, courts often consider broader issues such as the impact of a finding of liability on particular relationships and on the availability of certain social goods. These considerations can result in denial of an otherwise “legitimate” claim. Thus, notwithstanding how compelling a plaintiff’s claim might be from a moral and corrective justice standpoint, liability may be considered morally objectionable or socially undesirable. Viewed in this light, tort law is utilitarian because it reflects broader societal interests and a willingness to sacrifice individual interests for the greater good of society. Emphasis on broader societal considerations in determining the nature and limits of tort liability underscores the fact that the administration of justice, and in particular tort law, is a human and social institution designed to respond to the needs of society …
Adjin-Tettey, Elizabeth A., Discriminatory Impact of Application of Restitutio in Integrum in Personal Injury Claims (2009). TAKING REMEDIES SERIOUSLY – LES RECOURS ET LES MESURES DE REDRESSEMENT: UNE AFFAIRE SÉRIEUSE – CANADIAN INSTITUTE FOR THE ADMINISTRATION OF JUSTICE – INSTITUT CANADIEN D’ADMINISTRATION DE LA JUSTICE, p. 121, 2009.
First posted 2012-02-19 10:10:28
Leave a Reply