' An intelligent approach to the study of law must take account of its purpose, and must be prepared to test the law
critically in light of its purpose' - G. Williams, 'the Aims of Tort Law'
Corrective Justice
'liability consists in a legal relationship between two Corrective Justice is about righting wrongs,
parties, In holding the defendant liable to the claimant, the and is a relationship centric view of tort law.
court is making not two separate judgements (one that It considers everything that has taken place
awards something to the claimant and the other that before the incident leading up to the wrong, to
coincidentally takes the same away from the gain full knowledge of the issue.
defendant)but a single judgement that embraces both
parties in their inter-relationship.'
Weinrib 'Corrective Justice in a Nutshell' Explanation
'The defendant cannot be thought of as liable without To achieve justice both sides need to be worked
reference to a claimant in whose favour such a liability through and considered.
runs. Similarly, the plaintiff's entitlement exists only in and
through the defendant's correlative obligation.'
Principle of correlativity
• Both parties must be legal persons
‣ Legal Person- a natural person i.e a human being or a juristic person.
‣ Juristic Person - an entity, such as a corporation, that is recognised as having legal personality, i.e it is
capable of enjoying snd being subject to legal rights and duties.
Claimant (sufferer) Defendant
• A recognised protected right (or interest) • A duty owed to the claimant herself and breached
• Her right, was violated • The 'correlative obligation'
• Generally therefore: fault and reasonable foreseeability
• Obligation and right have to be very closely linked.
, Mcfarlane v Tayside Health Board [2000] 2 AC 59
‣ Claimants went to the defendant's doctor for a vasectomy procedure. This was carried out as
well as further tests and treatments to ensure a low sperm count. When the fertility rate was
seen as being low enough the claimants were told that the count had reached 0 and that the
claimants wife would no longer need to use any form of contraception. This information was later
found out to be incorrect when the wife fell pregnant.
‣ They sought compensation for the birth but also for the upbringing of the child.
‣ Using corrective justice only, the doctor would have been liable, however distributive justice is
also using within the courts and was applied to this case.
‣ Lord Steyn - 'It is possible to view the case simply from the perspective of of corrective justice.
It requires somebody who has harmed another without justification to indemnify the other. On
this approach the parents' claim for the cost of bringing up Catherine must succeed. But one
may also approach the case from the vantage point of distributive justice. It requires a focus on
the just distribution of burdens and losses among members of society.
Corrective Justice = one to one The proper role of community welfare considerations in
Mnt
Distributive Justice = one to many deciding cases and shaping private law rules lies at the heart
(can be seen as a utilitarian approach as its of questions about the nature of tort law. - Robertson
portioning resources within society) 'constraints on policy-based reasoning.
'Floodgates' Argument = Won't be enough for everyone
Phrases to look for in Conflicting Interests = e.g social workers can't be on the right side of both the parent
or
case law referencing and the care child
distributive justice Sanctity of life = All life is valuable
Illegal conduct on the part of the claimant = Come to court with clean hands
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
‣ She is suing her husbands employers due to his death after contracting mesophileoma. He was
exposed to asbestos with various different employers over the years. Doctor's do not know how the
disease spreads and what level of asbestos causes this illness.
‣ Corrective justice would not work in this case therefore distributive justice comes into place, however
it can not be proved that asbestos caused the illness.
‣ Lord Bingham - 'There is a strong policy argument in favour of compensating those who have
suffered grave harm at the expense of their employers who owed them a duty to protect them against
that very harm and failed to do so.'
critically in light of its purpose' - G. Williams, 'the Aims of Tort Law'
Corrective Justice
'liability consists in a legal relationship between two Corrective Justice is about righting wrongs,
parties, In holding the defendant liable to the claimant, the and is a relationship centric view of tort law.
court is making not two separate judgements (one that It considers everything that has taken place
awards something to the claimant and the other that before the incident leading up to the wrong, to
coincidentally takes the same away from the gain full knowledge of the issue.
defendant)but a single judgement that embraces both
parties in their inter-relationship.'
Weinrib 'Corrective Justice in a Nutshell' Explanation
'The defendant cannot be thought of as liable without To achieve justice both sides need to be worked
reference to a claimant in whose favour such a liability through and considered.
runs. Similarly, the plaintiff's entitlement exists only in and
through the defendant's correlative obligation.'
Principle of correlativity
• Both parties must be legal persons
‣ Legal Person- a natural person i.e a human being or a juristic person.
‣ Juristic Person - an entity, such as a corporation, that is recognised as having legal personality, i.e it is
capable of enjoying snd being subject to legal rights and duties.
Claimant (sufferer) Defendant
• A recognised protected right (or interest) • A duty owed to the claimant herself and breached
• Her right, was violated • The 'correlative obligation'
• Generally therefore: fault and reasonable foreseeability
• Obligation and right have to be very closely linked.
, Mcfarlane v Tayside Health Board [2000] 2 AC 59
‣ Claimants went to the defendant's doctor for a vasectomy procedure. This was carried out as
well as further tests and treatments to ensure a low sperm count. When the fertility rate was
seen as being low enough the claimants were told that the count had reached 0 and that the
claimants wife would no longer need to use any form of contraception. This information was later
found out to be incorrect when the wife fell pregnant.
‣ They sought compensation for the birth but also for the upbringing of the child.
‣ Using corrective justice only, the doctor would have been liable, however distributive justice is
also using within the courts and was applied to this case.
‣ Lord Steyn - 'It is possible to view the case simply from the perspective of of corrective justice.
It requires somebody who has harmed another without justification to indemnify the other. On
this approach the parents' claim for the cost of bringing up Catherine must succeed. But one
may also approach the case from the vantage point of distributive justice. It requires a focus on
the just distribution of burdens and losses among members of society.
Corrective Justice = one to one The proper role of community welfare considerations in
Mnt
Distributive Justice = one to many deciding cases and shaping private law rules lies at the heart
(can be seen as a utilitarian approach as its of questions about the nature of tort law. - Robertson
portioning resources within society) 'constraints on policy-based reasoning.
'Floodgates' Argument = Won't be enough for everyone
Phrases to look for in Conflicting Interests = e.g social workers can't be on the right side of both the parent
or
case law referencing and the care child
distributive justice Sanctity of life = All life is valuable
Illegal conduct on the part of the claimant = Come to court with clean hands
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
‣ She is suing her husbands employers due to his death after contracting mesophileoma. He was
exposed to asbestos with various different employers over the years. Doctor's do not know how the
disease spreads and what level of asbestos causes this illness.
‣ Corrective justice would not work in this case therefore distributive justice comes into place, however
it can not be proved that asbestos caused the illness.
‣ Lord Bingham - 'There is a strong policy argument in favour of compensating those who have
suffered grave harm at the expense of their employers who owed them a duty to protect them against
that very harm and failed to do so.'
