Jesse Wall, ‘No-Fault Compensation and Unlocking Tort Law’s: “Reciprocal Normative Embrace”’

ABSTRACT
The purpose of this article is to explain how the principle of corrective justice has been displaced by the provision of no-fault compensation for personal injuries. In explaining the transition from tort liability for personal injuries to no-fault compensation, the aim is to identify the norms that are adhered to, and the norms that are abandoned, under either scheme. The explanation unfolds through three sections. Section 2 examines the principled basis for a no-fault compensation scheme that is formulated in the Woodhouse Report. Section 3 then turns to consider how, in the absence of a no-fault compensation scheme, the principle of corrective justice imposes an agent-relative duty of reparation on those responsible for causing a wrongful loss. Section 4 then considers how the duty of reparation can be discharged by a third party when we reconfigure our conception of ‘wrongful loss’ and considers the implications of the reconfiguration for the fault principle. Viewing the transition from tort law actions to no-fault compensation in this way enables us to appreciate how a ‘normatively significant connection between actions and their outcomes’ is severed through the reconfiguration of ‘wrongful loss’.

Jesse Wall, No-Fault Compensation and Unlocking Tort Law’s: ‘Reciprocal Normative Embrace’ (2016) New Zealand Universities Law Review, 27(1), 125-144.

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