Acronym Definition
OJLR: Online JLR. Online Journal of Law Reform, a publication.
The Journal of Law Reform is dedicated to promoting the improvement of the
law when needs are disclosed and useful proposals can be advanced, and to
providing a forum for identifying and addressing undisclosed needs for reform.
JLR strives to provide legislators and policy-makers with the tools necessary to
influence the evolution of the law.
Law reform is the process of examining existing laws, and advocating and
implementing changes in a legal system, usually with the aim of enhancing
justice or efficiency.
Intimately related are law reform bodies or law commissions, which are
organisations set up to facilitate law reform. Law reform bodies carry out
research and recommend ways to simplify and modernise the law. Many law reform
bodies are statutory corporations set up by governments, although they are
usually independent from government control, providing intellectual independence
to accurately reflect and report on how the law should progress.
"Justice delayed is justice denied" is a legal cliché meaning that if legal
redress is available for a party that has suffered some injury, but is not
forthcoming in a timely fashion, it is effectively the same as having no redress
at all. This principle is the basis for the right to a speedy trial and similar
rights which are meant to expedite the legal system, because it is unfair for
the injured party to have to sustain the injury with little hope for resolution.
The phrase has become a rallying cry for legal reformers who view courts or
governments as acting too slowly in resolving legal issues either because the
existing system is too complex or overburdened, or because the issue or party in
question lacks political favor.
Origin
There are conflicting accounts of who first coined the phrase. According to
Respectfully Quoted: A Dictionary of Quotations, it is attributable to William
Gladstone but such attribution was not verifiable.[1] Alternately, it may be
attributable to William Penn, although not in its current form.[2]
The phrase may alternatively be traced to the Magna Carta, clause 40 of which
reads, "To no one will we sell, to no one will we refuse or delay, right or
justice."
Tort reform refers to the idea of changing the rules applicable to the law of
tort. Tort deals with compensation for wrongs and harm done by one party to
another's person, property or other protected interests (e.g. reputation, under
libel and slander laws). The most contentious area of tort, and the area on
which tort reform advocates focus is personal injury. The levels of compensation
for accidents vary greatly between different jurisdictions, but there has been a
general upward trend in the awards for compensation.[1] The ideas for reform
vary greatly between different jurisdictions also, and inevitably depend on the
rules and practices of the country.
In the United States tort reform has become a contentious political issue. This
is particularly true in the medical malpractice arena, where it has been argued
that the high costs of compensation awards are passed through to health care
consumers. US reform advocates have proposed, among other things, limiting the
number of claims, and capping the awards of damages. In Commonwealth countries,
the tort reform debate has taken a very different track. In 1972 New Zealand
introduced the first universal no-fault insurance scheme for all accident
victims. This is based on the principle that anyone suffering personal injury,
regardless of whether they can point to a negligent party who caused their loss,
may receive state benefits from the government run Accident Compensation
Corporation. The goal is to achieve full equality in compensation, while
reducing costs by removing the process from courts where litigation is hugely
expensive. In the 1970s Australia[2] and the United Kingdom drew up similar
proposals for similar no-fault schemes.[3] But the efforts and recommendations
amounted to little, and with changes of government the reform agenda were
abandoned.
Salient issues
A number of recurrent issues can be identified in the debates about tort reform,
though in many cases, these issues are particular to the United States. To
understand why tort may need reform, it is first necessary to understand how
tort works. Tort seeks out those responsible for harm to others, usually on the
basis of some fault. It requires those responsible to compensate, usually in
money. For instance, a supermarket may not have been safe enough for its
customers to shop in by failing to mop up a spillage of yoghurt on the floor.[4]
An employer may have failed to properly fence off some dangerous machinery,
which exposes workers to risk of injury.[5] A manufacturer of ginger beer may
have allowed a bottle it sells to have become contaminated, which has made a
consumer ill.[6] And so on. In cases similar to these, the person injured can
get a monetary payment to make up for their loss. This can include loss of
income (while the person recovers), medical expenses and a payment for pain,
suffering or perhaps a loss of a body part itself. Criticisms of the tort system
are usually that it costs too much. This may either be the cost of compensation
payments themselves, or that, granted that compensation is a worthy goal for the
injured, litigation is an inefficient method of giving compensation. In Britain,
for instance, it has been argued that 85p is spent on litigation for every £1 of
compensation paid. In contrast, the social security system costs 8p or 12p for
every £1 delivered.[7]
The compensation principle
The starting point, is that the classical purpose of tort is to provide full
compensation for harm, where a good case can be made. This is known under the
Latin phrase restitutio in integrum (restoration to original state). In other
words, the idea underpinning the law of tort is that if someone harms someone
else, they should make up for it. Compensation should be, in the words of Lord
Blackburn in Livingstone v. Rawyards Coal Co,[8]
"that sum of money which will put the party who has been injured 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."
Tort also applies to property damage, where the replacement value is a market
price (plus interest). The trouble is, that where people's body parts and minds
are concerned, where somebody loses a leg in a workplace accident, or suffers
nervous shock in a road traffic collision, it is difficult to quantify the
injury that they suffer. There is no market for severed legs or sanity of mind,
and so there is no price which a court can readily apply in compensation for the
wrong, as they can in cases concerning damage to property or economic loss. So
what happens instead is that courts develop a scale of damages awards,
benchmarks for compensation, which relate to the severity of the injury. For
instance, in the United Kingdom, for the loss of a thumb, one will get £18,000,
for an arm £72,000, for two arms £150,000, and so on.[9] In addition, claimants
may win awards of damages for the pain and suffering they endured as a
consequence of the injury. But while a scale may be consistent, the award itself
is argued by some to be arbitrary. Professor Atiyah has written that one could
halve, or double, or triple all the awards and it would still make just as much
sense as it does now.[10] Damages may be awarded to compensate for the loss of
future income. A typist who loses an arm suffers a loss to his future job
prospects and in the case of fatal accidents, financially dependent relatives
may be compensated for the loss of money that their loved one would have
provided.[11] These heads of the award can be adequately predicted in money
terms, and (outside the United States) they most often constitute the largest
element of the award. There is however also a case to say that people should not
receive such full compensation for income losses, because it could be said
entrench an existing and inequitable distribution of wealth in society.[12]
Punitive awards and juries
See also: Punitive damages and Jury
A trial by jury is unusual in almost all countries for non-criminal cases
A trial by jury is unusual in almost all countries for non-criminal cases
Another head of damages that can be awarded is called "punitive damages", or
sometimes "exemplary damages". The word "punitive" means punishment and the word
"exemplary" implies that damages should "make an example" of the wrongdoer. The
purpose of such damages are twofold: to deter wrongful conduct by other actors,
and to serve a normative function of expressing social shock or outrage at the
defendant's actions.
In most jurisdictions, punitive damages are not available. They are considered
contrary to public policy, because the civil justice system in many countries
does not have the same procedural protections as the comparable criminal justice
system. Therefore, allowing punitive damages would have the effect of punishing
actors for wrongful conduct without allowing them the ordinary procedural
protections that are present in a criminal trial. The fear is that punitive
damages encourage a vindictive, revenge seeking state of mind in the claimant
and society more generally. In the UK, Rookes v. Barnard[13] limited the
situations in which punitive damages can be won in tort actions to where they
are expressly authorised by a statute, where a defendant's action is calculated
to make profit, or where an official of the state has acted arbitrarily,
oppressively or unconstitutionally. In the United States, though rare in tort
cases, punitive damages are available. When punitive damages are awarded, the
sums can sometimes be quite staggering. For instance, in Phillip Morris USA v.
Boeken[14] the US Supreme Court refused to overturn a $50 million award in
damages to the family of a smoker who died of cancer. But originally, before the
appeals court had limited it, the jury in the trial had awarded a whopping $3
billion in punitive damages.[15]
It is argued by some that extraordinary damage awards in the United States are a
result of the jury system. In federal courts in the United States, the right to
a jury trial in most civil cases is entrenched in the Seventh Amendment of the
United States Constitution (drafted in 1789). Many state constitutions have
similar counterparts that protect the right to a jury trial in state court
proceedings. In many countries, particularly in continental Europe, juries are
not used at all, even in criminal cases, because of the cost of protracted
trials necessitated with a jury present and confidence in judicial impartiality.
In the United Kingdom, juries are available in criminal cases, and for tort
cases involving defamation, false imprisonment and malicious prosecution. Even
in these three limited areas of tort there have been growing concerns about
juries' role. In particular the disparity between awards in defamation cases
(which invariably concern celebrities, politicians and the rich) and awards for
personal injuries has been growing. Why should the vindication of reputation of
a famous person, it is argued, be given a higher value than the loss of
somebody's arm who is not famous? Inevitably, the awards climb, in a way that a
fixed system of damages under judicial scrutiny does not allow. Juries are
unseasoned with a daily exposure to tragic accidents in tort litigation. When
confronted with their first case they may be shocked and outraged, which
inspires a willingness to teach the wrongdoer (through a big damages award) that
"tort does not pay".[16] When the problem is viewed from a social and economic
perspective, it could be argued that juries are not a good policy option.
On the other hand, most federal judges in the United States, for instance, come
from a very narrow segment of society. They are all lawyers by trade, they all
earn in excess of $100,000 per year, and they tend to have been educated at
elite colleges and universities. The majority of federal judges are also white,
male, and over the age of fifty. Therefore, their ability to mold damages awards
to evolving norms of social conduct may be weaker than that of a jury. For
instance, multi-million dollar punitive damage awards against tobacco companies
could be said to reflect an evolving societal attitude towards corporate
wrongdoing, which lay-jurors apply in their decisions. Judges may not share
those evolving corporate attitudes, but rather exist within an isolated social
subclass which is itself drawn from the ranks of America's societal elite.
Therefore a jury is a healthy check on the judiciary.
Compensation culture
Another issue which arises is whether the courts are the appropriate forum for
seeking redress for personal injuries. In the United Kingdom, those who see the
tort system as encouraging frivolous claims often use the slogan "compensation
culture" to deride the state of law which encourages people to "have a go" at
filing a law suit, so that they might win lots of money. In fact, most personal
injuries cases never reach court. They are settled between insurance companies.
This is especially so for road accidents (where no fault compensation schemes
operate, and drivers mostly have third party insurance), and workplace injuries
(where employers are usually required to have insurance, and will get
compensation on the injured worker's behalf), the fora which account for the
majority of personal injuries. Settlements are made "in the shadow of the law",
so the amounts paid will usually approach or approximate what would be an
expected award in court, if a credible threat from a claimant's solicitor is
seen to exist. But in cases, for instance, involving product liability,
occupiers' liability or medical negligence, where the claimant must himself get
the money out of the opposing corporation, including perhaps his Health
Maintenance Organisation ("HMO", in the US), the personal expense, time and
anxiety of making a claim and seeing it through can be daunting.
The flip side is that if cases do in fact reach the point of trial, the costs
are likely to be large. On top of paying expensive legal fees, the court process
comes from public funds. Judges, their staff and the court administrators must
be paid for through taxation.
There are also concerns about the use of class actions. This is where a group of
claimants band together to bring similar kinds of claims all at once. These do
not exist in most countries, and what will usually happen is that one case will
be funded as a "test case", and if judgment falls in the claimants' favour the
tortfeasor will settle remaining claims.[17] . Class actions are justified on
the basis that they ensure equal treatment of similarly situated victims, avoid
the risk of conflicting judgments on similar issues, and allow an efficient
resolution of a large number of claims.
But in the U.S., class actions have been used (and by some views abused) in
order to overcome the differences in tort laws applicable in different states.
So if one claimant lives in State X, where tort laws are unfavourable to their
claim, but another claimant lives in State Y, where tort laws are favourable,
they may bring a class action together in State Y. Strictly speaking, State Y
must not adjudicate the claim unless it is found that the applicable law is
similar or identical in both states, but as a practical matter this rule is
often disregarded in favor of efficient resolution of claims. [18] Another
measure particular to the U.S. is the introduction of "proportionate liability",
in place of joint and several liability.
Economic effects
See also: Insurance, Medical malpractice, and Product liability
Three possible charges can be levelled at the tort system, for having distorting
economic effects. First, the high costs of litigation and compensation payouts
raise the cost of insurance. Because most tort claims will be paid from the
pockets of insurance, and because the public generally pays into insurance
schemes of all kinds, the public generally is footing the bill for tort claims.
On the other hand, the insurance market can be argued to be flexible enough to
adjust so that only high risk policy holders are footing the bill. Of course,
taxpayer-funded insurance programs such as Medicaid and Medicare do not share
this flexibility. If people are undertaking high risk activities (or are
themselves high risk people) then it would seem fair that they share the
appropriate social burden. Moreover the level of compensation in tort cases may
not strictly correlate with insurance premiums. The market may keep costs to a
minimum, provided that competition is effective. However, insurance regulations
often limit the degree to which charges can be matched to risk levels at the
policy-holder level. For instance, it would be illegal for an auto insurance
company in the United States to charge African-American drivers more than Asian
drivers, even though the claims rate of Asian drivers is substantially lower.
Secondly, and related to insurance in countries which do not have "socialised
medicine" (i.e., free public health care), the costs of the tort system, and in
particular medical malpractice suits, may raise the costs of health care. The
difficulty in this area is to distinguish between public and private health care
providers. The experience in the UK, where there is a fully public system run by
the National Health Service, is that tort claims have been restricted, for
instance in disallowing loss of chance cases. The Medical Defence Union actively
combats, and attempts to settle all cases where potential negligence claims are
at stake. While successful, the costs of litigation to the health system are
steadily growing,[19] and stand at around £446m a year.[20]
In the United States, it is easier for victims of medical malpractice to seek
compensation through the tort system. The American medical negligence record is
also the worst in the developed world, with around 195,000 deaths per year,
which itself leads to a higher number of claims.[21] It is open to debate as to
whether a change in the law of tort either way would lead to a change in
practice.
On the one hand, it may be said that resources transferred to fight tort cases
detract from money that could be used to improve patient care. On the other
hand, it could be said that increasing liability would deter medical staff from
making mistakes. For instance, it is a direct result of well-publicized tort
judgments that standard practice is for a nurse or surgeon to count the number
of sponges that are present on a surgeon's table after the completion of
surgery, in order to ensure that none are left behind within a body cavity. The
motivation for this precaution was to avoid tort judgments for left-behind
sponges, which had been a common cause of claim.
Thirdly, there is an argument that tort liability could stunt innovation. This
argument usually comes in connection with product liability, which in every
developed country is strict liability, subject to a "state of science" defence.
If a product is faulty, and injures somebody who has come across it (whether
they are the buyer or not) then the manufacturer will be responsible for
compensating the victim regardless of whether it can be shown that the
manufacturer was at fault. The standard is lower in other injury cases, so that
a victim would have to prove that a tortfeasor had been negligent. It can be
argued that strict liability deters innovation, because manufacturers could be
reluctant to test out new products for fear that they could be subjecting
themselves to massive tort claims.[22] This argument is characteristic of the
law and economics movement. It may be somewhat confused about the relevant law
because it misses the state of science defence. This defence means that a
manufacturer can always say "there was no warning or evidence in the scientific
literature that this new product could be dangerous".
Equality in treatment
See also: Distributive justice and Equality of outcome
Equality of treatment is the issue which the New Zealand reforms, and debate in
the Commonwealth more generally have focussed on. If someone has an accident
then they have a statistical 8% chance of finding a tortfeasor who they may be
able to blame for their injury. If they are lucky enough to have been injured by
someone else's fault, then they can get full compensation. For the other 92% who
are injured through no fault of anybody, by natural accidents, by themselves, by
disease or bolts from the blue, no compensation is available, and the most that
can be gained for all their losses will be meagre state benefits for incapacity.
Why should someone who has a broken leg be compensated on the basis that someone
else has caused it? If two people have broken legs, why should society not view
their misfortunes as the same?
This was the basis for much of Professor Patrick Atiyah's scholarship. His first
book to put the argument forward was Accidents, Compensation and the Law (1970).
Originally his proposal was the gradual abolition of tort actions, and its
replacement with schemes like those for industrial injuries to cover for all
illness, disability and disease, whether caused by people or nature. This is
what happened in New Zealand, except coverage of disease.[23] This approach,
generally, is still advocated in the recent editions by Peter Cane. More
recently, Atiyah wrote The Damages Lottery (1997), which advocated a private
insurance solution. Over the 1980s Atiyah's views shifted. He still argued that
the tort system should be scrapped. But instead of relying on the state, he
argued people should have to take out compulsory first party insurance, like
that available for cars, and this model should be spread progressively.[24]
Health and safety
An underlying issue with the law of tort, as it relates to accidents, is what,
if anything, it can do to make people stop having accidents in the first place?
On one view, it cannot, and the law of compensation is precisely that: there to
compensate. On another view, the imposition of tort liability can make people
take better care over their actions. If people have to pay compensation, they
will not disregard the health and safety of others so callously. The logical
conclusion on this "deterrence" view, may well be that the higher the damages
that a tortfeasor must reckon to pay, the greater the care he will take. In that
sense, health and safety could be maximised by maximising damages awards.
Alternatively, the best way to prevent accidents and injuries could simply be,
for instance, to pursue better workplace safety policy, increase inspections and
standards in product manufacturing, organise and fund hospitals better, and so
on. Even if tort liability does in some cases deter people from making mistakes,
in the cases where it does not, better preventative action is needed. In the US
presidential election, 2008 one candidate, Mike Huckabee, made a slogan of the
fact that "America does not have a health care crisis, it has a health crisis",
implying that Americans could save much on health care bills by taking better
measures to stop getting ill in the first place.
OJLR: Online JLR. Online Joint Logistics Review
OJLR: Online JLR. Online Journal of Liberal Religion
OJLR: Online JLR. Online Junior League of Racine
OJLR: Online JLR. Online Junior League of Raleigh
OJLR: Online JLR. Online Junior League of Reading
OJLR: Online JLR. Online Junior League of Reno
OJLR: Online JLR. Online Junior League of Richardson
OJLR: Online JLR. Online Junior League of Richmond
OJLR: Online JLR. Online Junior League of Rochester
OJLR: Online JLR. Online Junior League Record (UK)
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