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.”