Moments of Carelessness and Massive Loss

Abstract

Abstract The objection that it is inappropriate to assess the institution of tort liability in terms of a desert-based criterion of fairness would be more convincing if the institution were in better shape overall, so far as other modes of justification were concerned. This chapter considers whether tort liability can be defended on grounds of fairness, even if it cannot be defended on other grounds. It focuses on the assumption that the system of tort liability, whose impact on individual injurers is ameliorated by third-party insurance contracts, is in itself fundamentally just. There are important differences between tort liability and liability in the criminal law. The aim of compensating victims is at best secondary or incidental in criminal law, whereas it is central in torts. This theory also examines carelessness and the annulment theory, as well as wrongful loss and wrongful gain.

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