Model of Wrongs Flashcards
What was Aristotle’s position?
Corrective justice (model of wrongs) is based in the restoration of equality between individuals.
Two equal lines metaphor - we are required to ‘allocate back’ when we cause someone loss.
What is the aim of tort law?
To allocate the burden of repair for accidents and other harm-causing events.
Why does Weinrib reject distributive justice?
Distributive justice can never justify holding one person liable to another.
The parties must be linked in order for there to be liability.
Give an introduction to the contemporary model of wrongs.
Every citizen has rights which should not be infringed (bodily integrity/possession of property free from interference)
The law imposes a standard of conduct on all of us to ensure that we don’t violate the rights of others.
Corrective justice states that the wrong-doer (who didn’t observe the standard of conduct) should pay if they violate these rights.
What standards of conduct are there?
Fault-based liability - requires the defendant’s conduct to have fallen below a reasonable standard - ‘take care not to’.
Strict liability - conditions of liability do not require fault (Rylands v Fletcher) - ‘don’t do this’.
Why does the model of wrongs sound good?
Tort law is billed ‘the law of civil wrongs’!
English law generally requires fault for liability, strict liability is the exception.
What is the wrong?
Failure to observe the requisite standard of conduct, whether this be ‘take care not to’ (fault-based) or ‘don’t do this’ (strict liability).
What is important about the standard of care for the model of wrongs?
The standard is the primary order duty, which gives rise to a secondary order of repair if breached.
Weinrib emphasises the correlativity between the two duties as the key facet of the model of wrongs.
The claimant and defendant are put into a special relationship.
Recourse between the individuals distinguishes corrective justice from distributive justice.
What does Gardner add to the model of wrongs?
Repairing damage is the ‘next best thing’ that can be done following breach.
‘Continuity Thesis’ - Our duty to adhere to the appropriate standard of conduct is continuous.
This distinguishes the model of wrongs from the model of costs which can be seen to hinge on the specific incident of breach.
What does Hershovitz claim?
Corrective justice serves a retributive purpose, as a substitute for revenge.
In many cases, once a wrong has been committed it cannot be erased and so tort law should help people get even.
What is wrong with Hershovitz’s claim?
He uses an easy example! A person spitting on another is a borderline criminal case where fault is apparent and retribution is natural. How about a more difficult case such as Rylands v Fletcher where no fault existed, should tort law still require retribution?
The criminal law does a better job at retribution.
How is New Zealand different?
New Zealand has an Accident Compensation Corporation - comprehensive no-fault injury cover to residents and visitors.
Compensation is available without any correlativity, even for self-induced injuries.
There is no litigation between the parties.
Why does Enoch worry about the New Zealand system?
He worries that the New Zealand model does not force people to take responsibility for their actions.
He suggests that New Zealand model + apology would be better as then people would take responsibility.
So does the model of wrongs fail the ‘what’s wrong with NZ challenge’?
The NZ system does not appear to allow people to hold eachother accountable as Hershovitz and Enoch suggest.
Enoch says that NZ + apology can overcome this problem.
However it cannot let us get even - Hershovitz.
What is the issue with strict liability under the model of wrongs?
Because fault is not required for liability, it is not always easy to pinpoint a ‘wrong’.
Is failure to observe the standard the wrong?
