Wide availability of insurance today makes nonsense of most of tort’s traditional justifications. No longer can it punish or deter wrongs, or deal even-handedly between claimant and defendant: the defendant simply drops out of the picture in favour of their employer or insurer. Tort therefore merely compensates, though theorists are reluctant to concede this. Modern theoretical accounts emphasise deterrence, personal responsibility and corrective justice – all of which are important goals, yet none of which has much to do with tort’s bureaucratic reality. But tort is not so easy to uproot, and the interest groups which can speak most authoritatively have too much to gain from its operations to permit substantial reform. For theorists, therefore, the justification of tort is an important problem with no plausible solution: it is an itch which constantly irritates, but which we cannot properly scratch.
Hedley, Steve, The Unacknowledged Revolution in Liability for Negligence (November 25, 2016) in Sarah Worthington, Andrew Robertson and Graham Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing, 2018).