Responsibility and Luck Flashcards
Why do we need to consider responsibility when considering the models of tort law?
Both models have things going for them and fit tort law reasonably well.
Considering responsibility gives us a way in which we can assess what the models have in common.
Tort law must always tell us who has responsibility.
What do the models say about responsibility?
Model of Wrongs - when you are a wrongdoer it is your responsibility to make repair.
Model of Costs - when you are the cheapest cost avoider it is your responsibility to make repair.
Why should we consider whether responsibility should turn on luck? How else might this be framed?
It is commonly thought that our responsibilities shouldn’t turn on luck.
‘We should only be responsible for things which we control.’
What would the model of costs find regarding luck?
Whether you are the cheapest cost avoider clearly turns on luck.
It depends on your circumstances and the circumstances of others.
What would the model of wrongs find regarding luck?
If there’s no wrongdoing, the victim pays.
Because what happened was a matter of luck, the victim has to pay.
Which areas of tort law initially seem consistent with the idea that our responsibilities shouldn’t turn on luck?
Negligence requires failure to adhere to a standard of conduct, this is not a matter of luck.
Mansfield v Weetabix also aligns with this idea, the driver (Tarlington) was not liable as he had no knowledge of his condition and couldn’t have done anything about it.
If Tarlington was found to be liable then this would have turned on luck.
Which areas of tort law appear inconsistent with the idea that our responsibilities shouldn’t turn on luck?
Causation - Waldron’s Fate and Fortune example - only he who causes an injury will be held liable - this is surely a matter of luck.
Remoteness - the ‘egg shell skull’ rule clearly turns on luck - Smith v Leech Brain.
Strict liability - Rylands v Fletcher - a person can be liable even if they did everything within their control to avoid the outcome.
Why is the New Zealand system good on the front of luck?
It covers injury irrespective of luck.
It also ensures that recovery is available notwithstanding how deep the tortfeasor’s pockets are - this would be a matter of luck.
Why should we not accept the luck argument?
Perry - Attributive responsibility (blameworthiness) and substantive responsibility (taking credit/paying) come apart.
If you score a scuff in football you are substantively responsible for the goal but not attributively responsible for taking a good shot.
Tort law deals with attributing substantive responsibility, not attributive responsibility, somebody has to pay, even if nobody is to blame.
So what can we conclude regarding responsibility and luck?
People shouldn’t necessarily be blamed for bad luck.
But it is correct to put the burden of repair on people even though the result was a matter of luck.
What further argument is there for this conclusion?
Everything we do is affected by luck - even shooting someone depends on luck to some extent.
Even if the act is a matter of luck, somebody still has to pay.
