Torts is an area of law that regulates our responsibilities and expectations regarding one another. In the twentieth century, torts was understood as being concerned with ethics—Peter Cane famously stated that ‘the best way to understand tort is as a set of ethical rules and principles of personal responsibility’ (P. Cane, The Anatomy of Tort Law (Oxford, 1997), 181). In the twenty-first century, could (and should) we say that tort law is also concerned with social justice? In her essay, “Social Justice Tort Theory,” cited below, Martha Chamallas argues that we should see tort law as having this role, and explains that this is already becoming a reality:
“In the past decade, social justice concerns have pervaded the law school curriculum. Going beyond its familiar grounding in public law courses, social justice (SJ) has reached into private law subjects, including torts. Torts professors are teaching from social justice perspectives or at least interjecting SJ considerations into their courses.” (309)
This essay asks you to consider this topic through three sub-questions:
1. What are the legal requirements of the tort of negligence? (7 marks) 2. With reference to the articles listed below, critically consider the degree to which the tort of negligence does, in fact, reflect the values of social justice (as opposed to, for example, ethical, economic or corrective values). (9 marks) 3. With reference to the articles listed below, critically consider what role social justice values COULD or SHOULD play in the tort of negligence. (9 marks)
Your essay should incorporate relevant case law, statute, and secondary sources, such as law journal articles. You should refer to the two articles cited below. Please note that the articles below focus on North America—while the specific laws are not relevant or authoritative to Australian law, the historical and critical analysis is highly relevant, and this is what you should focus on in these articles.
1. M Chamallas, ‘Social Justice Tort Theory’ (2021) 14(2) Journal of Tort Law 2. J Thomas, ‘Which Interests Should Tort Protect?’ (2013) 61 Buffalo Law Review 1