Q1.
Many claims persist that question the moral standing of tort law. In sync with public policy, tort law system should ensure fairly allocation of responsibility and duty to both parties, that victims are compensated accordingly, in addition to ensuring determent of conduct leading to similar claims ( Robertson 2013) .
However, critics claim that in many instances, the system does not always reflect these goals, arguing that sometimes the system award plaintiffs unreasonably high amounts of money in compensation. In addition, such cases take too long to resolve and that they require unreasonably high cost of filing court cases and paying lawyers. Others fault tort law system, arguing that the system sometimes denies compensation to victims who should rightly be compensated.
Delegate your assignment to our experts and they will do the rest.
Nevertheless, tort law system promotes public policy. The system, in addition to creating the perception of corrective justice among the victims, holds the wrong doers accountable for the losses incurred due to their actions or inactions. In that regard, tort law provides some kind of victim reaction, which corrective justice theorists claim it ensures responsibility of wrong doers to repair losses due to their actions, thus instilling the sense of duty. By awarding punitive damages, the system contributes to public policy by indirectly encouraging the parties to correct conditions that may lead to similar charges in a court of law. For instance, in Kerle v BM Alliance Coal Operations and Pty Ltd (2016) , Mr. Kerle filed suit against his employer ‘BM Alliance Coal Operations and Pty Ltd’ alleging his injuries were a direct consequence of the employer’s breach of care. The court held that the defendant owed the plaintiff duty of care, and due to its absence, held the defendant liable for the plaintiff’s injuries. In the ruling, the court held the employer responsible for Mr. Kerle’s accident and injuries, as a direct consequence of the defendant’s failure in discharging their duty of care, in educating workers on work-associated risks, controlling length of shifts and not proving rest areas and transportto and from the site. The court’s ruling gave the company the incentive to discharge duty of care to avoid future litigation, hence contributing to public policy.
Q2.
While tort law furthers public policy, in other instances, it can also lead to negative precedence. Typically, the law of torts thrives on the premise of promoting safe practices that protect the weak from exploitation. However, it lacks the mechanisms to ensure that the opposite does not happen.
In often cases, plaintiffs with counsel of their lawyers file suits to hold companies hostage in the hope of early and out of court settlements, as opposed to defending themselves in the court.
Further, emotional driven jury rulings have resulted into jury awards of unreasonably high amounts, a practice that may encourage the public to file frivolous cases that undermine the tort system. In retribution, companies may set stringent engagement conditions that degrade benefits envisioned by tort law system in the first place. For instance, in the case study, the plaintiff was awarded $1,250,000 ( Kerle v BM Alliance, 2016) . The fact that the plaintiff presented factual allegations of the employer’s failure to discharge its duty as the causative agent of his consequent injuries does not obviate the plaintiff’s responsibility as a direct link to the injuries. Yet, in its ruling, the court shifts the responsibility in its entirety to the employer, dismissing the active role played by the plaintiff in causation of the accident. Additionally, the amount awarded as settlement is ridiculously high. This makes a clear indication of the weakness of tools utilized bythe system to promote balance of competing interests and the way their use may promote injustice.
Q3.
In Kerle v BM Alliance Coal Operations and Pty Ltd (2016) tort claim, the plaintiff Mr.Kerle claimed damaged, asserting each of his three employers failed to discharge their duty of care. It led to the accident that caused him injuries; the plaintiff alleged that he had worked for four consecutive 12-hour shifts at the Norwich Park Mine as a dump truck operator. After completing his fourth shift, he commenced on the 430km drive to his home, but 300km into his journey, he was involved in an accident, where he sustained serious injuries. His employers denied liabilities, citing that the accident did not occur at the workplace, and that their duty of care did not extend to the injuries. Additionally, they argued that the chain of causation was broken as Mr. Kerle had taken half-hour break on his journey, and shifted responsibility to him claiming that he was negligent in not taking more rests during the drive home. The judge dismissed the defendants’ claims, stating that they failed in discharging their duty of care and that the plaintiff’s accident was caused by him driving due to the demands of his employment. The ruled in favor of the plaintiff, and awarded damages at $1,250,000 ( Kerle v BM Alliance. 2016)
Q4.
The ruling made in Kerle v BM Alliance Coal Operations and Pty Ltd (2016) furthers public policy. The ruling was based on the employer’s breach of their duty, which it owed to the plaintiff. All rules of law should have a basis in policy. In the court’s ruling, the reference is made to the employer’s failure to consider the effects on health of lengthy shifts worked by its employees. Additionally, the court held the employer liable for not conducting occupation health and safety education for its employees. Further, the employer was found liable of not providing employees’ transport facilities to and from the site, despite the lengthy shifts worked. The court’s ruling encourages determent of conduct that led to the claim. In that sense, the court empowers the employer to revisit the particular conditions set out in the ruling to avoid recurrence. In essence, this provides safer working conditions, which eventually promotes public policy.
In view of public policy, tort cases feature complexity and indeterminacy in striking a balance between conflicting issues inthe application corrective justice ( Robertson 2013) . Additionally, there lacks preset procedures that dictate how civil liability is assigned to the parties, as each case is uniquely different. Therefore, it is imperative that the defender embrace the defensive formula of duty of care to reduce chances of prosecution following claims of breach of duty under the tort law system. When properly embraced, the formula converts each potential suit into monetary loss due to defendants’ actions or lack thereof, thus informing decision on the corrective action to cause deterrent effect. This not only reduces the number of suits filed against the defendant, it also influences how the public perceive the defendant with regard to effecting deterrence. This, therefore, is a proactive approach to deterrence that allows the defendant to internalize all costs of their actions in monetary form, while appeasing public demand for socially acceptable standards.
References
Kerle v BM Alliance Coal Operations Pty Limited & Ors (2016) Aust Torts Reports ¶82- 320; [2016] QSC 304 .
Robertson, A. (2013). Policy-based reasoning in duty of care cases. Legal Studies , 33 (1), 119-140.
