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"The Moral Foundations of Tort Liability" [2010] ELECD 153; in Tanase, Takao; Nottage, Luke; Wolff, Leon (eds), "Community and the Law" (Edward Elgar Publishing, 2010)

Book Title: Community and the Law

Editor(s): Tanase, Takao; Nottage, Luke; Wolff, Leon

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447851

Section: Chapter 3

Section Title: The Moral Foundations of Tort Liability

Number of pages: 9

Extract:

3. The moral foundations of tort liability

1. THE TORT LAW CRISIS
Tort law is said today to be in crisis. A dramatic expansion in the category of
legal issues disposed of as torts has precipitated this crisis, causing confusion
and tension in the established legal and social orders (O'Connell, 1971). The
advent of no-fault insurance (promising prompt and calculable provision of
compensation to traffic accident victims: Tanase, 1990c) and acclaim for New
Zealand's comprehensive compensation scheme (Kato, 1989) have fuelled
concerns that the expansion of tort litigation is inefficient. Some writers, such
as Sugarman (1985), have gone so far as to propose doing away with tort law
altogether. The costs of tort-based recovery far outweigh the benefits, critics
argue, and tort law is failing in its purported objectives: deterrence of unlaw-
ful behaviour, compensation for harm and securing justice between the parties.
Japan's system of administratively managed justice ­ where the state stan-
dardises liability and fixes allowable damages awards ­ is pitched as an alter-
native to litigated individual justice. The system promises `quick and certain
relief for victims' by bypassing costly and time-consuming trials and embrac-
ing centrally administered systems of relief (Sato, 1979, fn. 10). Yet Japanese
courts are now clogged with tort suits. Since the late 1960s, Japan has
witnessed a surge in mass torts (such as in traffic accidents, medical negli-
gence and product liability cases), the recognition of new causal relationships
and increased demands for relief. This highlights the ...