Thoughts on tort law reform

As a child, I watched on television hidden camera footage of a woman pouring oil over steps, then repeatedly walking up and down them in a deliberate attempt to slip and sue for compensation.

In early 2010, Glen Hanncock was compensated $300,000 after becoming paraplegic in a work-related injury. In late 2010, Kristy Fraser-Kirk was compensated $850,000 after being sexually harassed on 2 occasions at work. 

I do not speak for all, but forced to choose, I would much rather be odiously groped and harassed on 20 occasions than become incurably paraplegic, even if I am not compensated the extrapolatable $8.5 million. If I could cure someone's paraplegia by groping and harassing them on 20 occasions, it would be a medical miracle.

In tort law, the principle of plaintiff remedy should be restorative, compensating wrongful losses and restituting wrongful gains. There should not arise a situation where the plaintiff makes a net utility profit and is glad to have been "torted." However, punitive damages (ie, in excess of the wrongs incurred) are justified, lest people commit calculated torts knowing they gain more than damages they'll need to pay (for the same reason, I do not support proposals to cap punitive damages). The principle of punitive damages should be future public interest rather than rewarding the plaintiff.

▪ I dream of a world where punitive damages are not awarded to the plaintiff but rather, eg, a charity organisation independently appointed or mutually agreed upon

One problem with such a world is that plaintiffs can still make net utility profits at the expense of future public interest through out-of-court settlements (Kristy Fraser-Kirk threatened $37 million in punitive damages to charity and settled for $850,000 to her own pocket).

▪ I dream of a world where manifestly unjust out-of-court agreements risk legal action, just as in the real world how manifestly inappropriate sentences can be appealed and illegal agreements can be ruled unenforceable

Litigation is ideally the last resort after out-of-court agreements have been exhausted, lest the court system become further clogged. While limitations to such agreements may create additional burden upon the courts, this may be offset by a reduction in opportunistic and profiteering lawsuits. Another problem is that plaintiffs may rarely pursue punitive damages at all due to minimal incentives. Awarding the plaintiff a nominal share of the punitive damages may only be a partial remedy.

Ultimately, the onus and reward of a public interest matter should be taken out of the hands of a private litigant in the first place. This is the case in another field where public interest is the underlying principle; criminal law.

▪ I dream of a world where the primary onus of punitive damages falls not on the plaintiff but on a state office akin to a public prosecutor

One sesquicentury ago, the military hegemony of the British Empire exported a pernicious produce in opium. Today, the cultural hegemony of the USA exports a pernicious produce in its legal practices.