Tort law- secondary sources

Corrective justice- Gardner

Gardner argues that when someone breaches an obligation, the reasons that originally required compliance do not disappear. Even if compliance is no longer possible, they should do their best to find the closest thing. 

Corrective justice- Wenrib and Coleman

Weinrib claims that tort law is a justificatory enterprise, but equivocates about whether he is attempting to justify this. 

Coleman argues that corrective justice can supply a complete answer to the question 'what is tort law for'. He argues that corrective justice provides a complete account of what tort law puports to explain. 

Wenrib suggests that, in justifying tort law, no extra considerations can be conjoined with norms of corrective justice.  

Both argue that tort law is primarily concerned between individual justice, not a tool for achieving social goals

Tony Honore on corrective justice

The objective standard in the law of negligence is consistent with personal responsibility. He maintains that people who act as morally responsible agents are responsible for the outcomes that they cause. This, however, is not in tension with the claim that, even if people who act as morally responsible agents are responsible for the outcomes that they cause the outcomes is not sufficient to explain why they are responsible for those outcomes.  

Cane- corrective justice

Corrective justice is concerned only with correcting injustices that are defined independently of corrective justice. On this understanding, corrective justice tells us how to correct wrongdoing when it has occurred, but has no role to play in the identification or definition of wrongdoing. 

Beever on responsibility

Beever argues that choosing to act necessarily means initiating a causal process, but it does not necessarily mean accepting moral responsibility for every resulting outcome, particularly unforeseen outcomes beyond one’s control. 

Civil recourse theory- Goldberg and Zipursky

This theory posits that tort law is primarily a scheme of private rights for the redress of legal wrongs, not a mechanism for imposing public policy. It asserts that the question of remedy in a tort case turns on the question of what a person who has proven that she has been wronged is entitled to demand of the wrongdoer. 

Tony Weir on the function of tort

The main function of tort law is to ordain compensation. It has another function, however, which, though traditional, has rarely been more important than now, namely to vindicate constitutional rights

Tony Weir on breach of duty

Decisions on breach are not citable as authorities; they are merely illustrations of the application of the indubitable rule that if one is under a duty at common law such care must be taken as is called for in all the circumstances. 

Lady Hale on autonomy in preganancy and childbirth

It may be down to what the woman's personal values are. This is why Bolam is unsuitable for this aspect of the patient-doctor relationship. A responsible body of doctors cannot determine what risks matter to the individual patient. 

Tofaris and Steel on omissions

Recognising some duties to prevent harm does not destroy the distinction between acts and omissions. 

If we took the objection to omissions liability completely seriously, we would have to reject all situations where the law makes someone secondarily responsible for wrongdoing primarily committed by someone else. 

Honore on omissions

Omissions which lead to some effect are generally less culpable than acts which lead to the same effect. This means that an intervention which leads to harm make things worse as opposed to simply failing to make them better.  

Tofaris and Steel on corrective justice and public authorities

They reject the idea that corrective justice can't apply to public authorities. A police officer does not suddenly become incapable of committing a wrong simply because they are "on duty". More importantly, if it is possible to morally wrong someone by failing to help them, police omissions can potentially create obligations under corrective justice too

Lady Hale in Michael

She proposed proximity where police know or ought to know of an imminent threat of death or personal injury to claimant which they have means to prevent. 

Varuhas on Vindication Theory

It entails attesting to, affirming, and reinforcing the importance of those interests that are the subject of the law’s protection and the importance of the relevant legal rights.