Editing Tort (section)

== Theory and reform ==
{{Main article|Tort reform}}
Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: [[Damages#Compensatory damages|compensatory]], [[aggravation (law)|aggravated]], and [[punitive damages|punitive]].<ref>{{cite journal |last1=Chapman |first1=Bruce |title=Punitive Damages as Aggravated Damages: The Case of Contract |journal=Canadian Business Law Journal |date=1990 |volume=16 |pages=269–280 |url=https://ssrn.com/abstract=1151920 |access-date=6 July 2020}}</ref> British scholar [[Glanville Williams]] notes four possible bases on which different torts rested: appeasement, justice, deterrence, and compensation.<ref>Williams, G. [1951] "The Aims of the Law of Tort", ''Current Legal Problems'' 137</ref>

William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the [[law and economics]] literature that is focused on identifying the effects of tort law on people's behavior.<ref>{{cite book|url=https://books.google.com/books?id=vj0HghjGMCgC&q=landes+and+posner+++tort&pg=PA1|title=The Economic Structure of Tort Law|last1=Landes|first1=William M.|last2=Landes|first2=Richard A.|year=1987|publisher=Harvard University Press|isbn=9780674230514|language=en}}</ref><ref>{{Cite book|url=https://books.google.com/books?id=N6F78hI8EPQC&q=steven+shavell&pg=PA1|title=Economic Analysis of Accident Law|last=Shavell|first=Steven|date=1987|publisher=Harvard University Press|isbn=9780674043510|language=en}}</ref> These studies often make use of concepts that were developed in the field of [[game theory]].<ref>{{cite book|url=https://books.google.com/books?id=ncEJHu35yvQC&q=game+theory+and+the+law&pg=PR11|title=Game Theory and the Law|last1=Baird|first1=Douglas G.|last2=Gertner|first2=Robert H.|last3=Picker|first3=Randal C.|year=1998|publisher=Harvard University Press|isbn=9780674341111|language=en}}</ref> Law and economic scholars characterise law in terms of incentives and deterrence, and identified the aim of tort as being the efficient distribution of [[risk]]. [[Ronald Coase]], a principal proponent, argued in ''[[The Problem of Social Cost]]'' (1960) that the aim of tort law, when [[transaction cost]]s are high, should be to reflect as closely as possible the allocation of risk and liability at which private parties arrive when transaction costs are low.<ref>{{Cite journal|author=Coase, R. H. |year=1960 |title=The Problem of Social Cost |journal=The Journal of Law and Economics |volume=3 |pages=1–44  |doi=10.1086/466560|s2cid=222331226 |url=https://dash.harvard.edu/bitstream/handle/1/9932210/becker%2cbergstresser%2csubramanian-Does_Shareholder_Proxy.pdf?sequence=1}}, reprinted in {{Cite book |author=Coase, R. H. |year=1990 |title=The Firm, the Market and the Law |publisher=Chicago University Press |location=Chicago |isbn=0-226-11101-6 |pages=[https://archive.org/details/firmmarketlaw00coas/page/ ''pp''95–156] |url=https://archive.org/details/firmmarketlaw00coas/page/ }}, [https://www.sfu.ca/~allen/CoaseJLE1960.pdf online version] {{Webarchive|url=https://web.archive.org/web/20120503021515/http://www.sfu.ca/~allen/CoaseJLE1960.pdf |date=3 May 2012 }}</ref>

Since the mid-to-late 20th century, calls for reform of tort law have come from various perspectives. Some calls for reform stress the difficulties encountered by potential claimants. For example, because not all people who have accidents can find solvent defendants from which to recover damages in the courts, [[P. S. Atiyah]] has called the situation a "damages lottery".<ref>Atiyah, P. S. (1997) ''The Damages Lottery''</ref> Consequently, in New Zealand, the government in the 1960s established a [[No-fault insurance|no-fault system]] of state compensation for [[Accident Compensation Corporation|accidents]]. In the 1970s, [[Australia]]<ref>For a speech by High Court judge Michael Kirby, see [https://web.archive.org/web/20090620195211/http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_med11sep.htm ''Medical malpractice - an international perspective of tort system reforms''] (11.9.2000)</ref> and the [[United Kingdom]] drew up proposals for similar no-fault schemes<ref>in the UK, see the ''[[Pearson Report]]'' (1978) by the "Royal Commission on Civil Liability and Compensation for Injury"</ref> but they were later abandoned.

A wide variety of tort reforms have been implemented or proposed in different jurisdictions, each attempting to address a particular deficiency perceived in the system of tort law. Generally, these can be broken down into two categories: reforms limiting [[damages]] recoverable by a plaintiff and procedural reforms limiting the ability of plaintiffs to file lawsuits. A large portion of tort reforms seek to limit the damages a plaintiff can be awarded. The rationale underlying these reforms is that, by limiting the profitability of tort lawsuits to plaintiffs, they will reduce the incentive to file frivolous lawsuits. There are several varieties of reforms to the system of damages:

*[[Non-economic damages caps]] place limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between [[malpractice]] settlements and premium rates.<ref>[http://www.ncsl.org/standcomm/sclaw/medmaloverview.htm Medical Malpractice Tort Reform] {{webarchive|url=https://web.archive.org/web/20090520215243/http://www.ncsl.org/standcomm/sclaw/medmaloverview.htm |date=2009-05-20 }}, National Conference of State Legislatures, May 1, 2006, accessed Aug. 3, 2006.</ref> Such caps can be general or limited to a particular category of cases.{{efn|For example, the American federal government has instituted a $250,000 cap on non-economic damages for medical malpractice claims.}}
*[[Punitive damages]] caps limit the amount of [[punitive damages]] awardable to a plaintiff. In most [[Civil law (legal system)|civil law]] jurisdictions, punitive damages are unavailable and are considered contrary to [[ordre public|public policy]] since the civil justice system in many countries does not accord defendants the procedural protections present in the criminal justice system thus penalising an individual without allowing them the ordinary procedural protections that are present in a criminal trial. The rationale for restricting punitive damages is that such damages encourage a vindictive, revenge-seeking state of mind in the claimant and society more generally. In the UK, ''[[Rookes v Barnard]]''<ref>''[[Rookes v Barnard]]'' [1964] AC 1129, [1964] 1 All ER 367</ref> limited the situations in which punitive damages can be won in tort actions to where they are expressly authorised by a statute, where a defendant's action is calculated to make a profit, or where an official of the state has acted arbitrarily, oppressively or unconstitutionally. In the United States, though rarely awarded in tort cases, punitive damages are available and are sometimes quite staggering when awarded.{{efn|For example, in 1999, a Los Angeles County jury awarded $4.8 billion in punitive damages against General Motors to a group of six burn victims whose 1979 Chevrolet Malibu was rear-ended by a drunk driver, causing it to catch fire.<ref>{{cite news|first=Peter Y. |last=Hong |title=Judge Cuts Award Against GM to $1.2 Billion | newspaper=[[Los Angeles Times]] |date=1999-08-27|url=https://www.latimes.com/archives/la-xpm-1999-aug-27-me-4217-story.html}} $4.8 billion was the largest non-class action judgment for punitive damages according to one study. ''See'' Joni Hersch and W. Kip Viscusi, "Punitive Damages: How Judges and Juries Perform", 33 J. Legal Stud. 1 (January 2004), [https://ssrn.com/abstract=315349 available on SSRN.]</ref> That was later reduced to $1.2 billion by the judge.<ref>{{cite news|first=Eric |last=Malnic |title=GM Files Appeal of $1.2-Billion Verdict, Calling Trial Unfair| newspaper=[[Los Angeles Times]] |date=2000-12-07|url=https://www.latimes.com/archives/la-xpm-2000-dec-07-me-62370-story.html}}</ref>}}
*Limits on damages for [[pain and suffering]] are another category of tort reform. While tort compensation easily applies to property damage, where the replacement value is a market price (plus interest), but it is difficult to quantify the injuries to a person's body and mind. There is no market for severed legs or sanity of mind, and so there is no price that a court can readily apply in compensation for the wrong. Some courts have developed scales of damages awards, and benchmarks for compensation, which relate to the severity of the injury. For instance, in the United Kingdom, the loss of a thumb is compensated at £18,000, for an arm £72,000, for two arms £150,000, and so on,<ref>see, ''Guidelines for the Assessment of General Damages in Personal Injury Cases'' (2006), which lay out the standard figures, up to £200,000 for severe brain damages</ref> but while a scale may be consistent, the award itself is arbitrary. [[Patrick Atiyah]] has written that one could halve, double, or triple all the awards and it would still make just as much sense as it does now.<ref>see generally, Patrick Atiyah and Peter Cane, ''Atiyah's Accidents, Compensation and the Law'' (2006) 6th Ed., Cambridge University Press</ref>
*Another reform to compensation, in jurisdictions where it is not already the norm, is to implement the [[English rule (attorney's fees)|English rule]] whereby the losing party to a case covers the victorious party's legal costs. In [[Commonwealth of Nations|Commonwealth]] countries as well as certain American states, the losing party must pay for the court costs of the winning party.<ref>{{cite web|url=http://americancourthouse.com/?s=loser+pays |title=Blog reports on Texas adoption of Loser Pay Law |publisher=Americancourthouse.com |access-date=2012-06-28}}</ref> The English rule Is also a prevailing norm in European civil law jurisdictions.<ref>{{cite web|url=http://www.pointoflaw.com/loserpays/overview.php |title=Loser Pays |publisher=PointofLaw.com |date=2004-05-21 |access-date=2012-06-28}}</ref> For example, after authors [[Michael Baigent]] and [[Richard Leigh (author)|Richard Leigh]] lost their plagiarism litigation over ''[[The Da Vinci Code]]'' in a British court, they were ordered to pay the defendants' $1.75 million in attorneys' fees. The "American rule" differs; in most cases, each party bears its own expense of litigation.  Supporters of tort reform argue that loser-pays rules are fairer, would compensate winners of lawsuits against the costs of litigation, would deter marginal lawsuits and tactical litigation, and would create proper incentives for litigation, and argue for reforms that would require compensation of winning defendants some or all the time.<ref>Walter Olson. 
 [http://www.pointoflaw.com/books/tle_chap15.pdf The Litigation Explosion] Retrieved 20 November 2022.</ref> Certain proposed or implemented tort reforms adopt the English rule if the respondent should prevail but retain the American rule otherwise (e.g. California's [[special motion to strike]] in [[defamation]] suits).

In addition to reforms aimed at limiting plaintiff's abilities to claim particular categories of compensation, tort reform measures aimed at reducing the prevalence of lawsuits for [[negligence]], the most commonly alleged tort, aim to revise the doctrine of [[comparative negligence]]. Comparative negligence is a partial legal defence that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury, which progressively displaced the erstwhile traditional doctrine of [[contributory negligence]] over the twentieth century which had precluded any damages being awarded in cases in which the plaintiff was deemed to be even partially at fault. Under standard or "pure" comparative negligence, a plaintiff can seek damages regardless of the portion of liability they bear, even where they are found to be more at fault than the respondent.<ref>{{cite journal|last1=Cooter|first1=Robert D.|last2=Ulen|first2=Thomas S.|title=An Economic Case for Comparative Negligence|journal=New York University Law Review|date=1986|volume=61|page=1067|url=http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2289&context=facpubs|accessdate=5 September 2017}}</ref> As a tort reform measure aimed at combatting the perceived unfairness of allowing a party to seek extra-contractual damages where they are primarily at fault, many common law jurisdictions have adopted a "modified" doctrine of comparative negligence in which a party may only recover damages if it bears less than half the liability or if the other party bears more than half the liability.<ref>Dobbs 2017, p. 298.</ref> More radically, the American states of [[Alabama]], [[Maryland]], [[North Carolina]], and [[Virginia]] continue to use contributory negligence, thus precluding a party who is even partly at fault from recovering damages for negligence.<ref>Dobbs 2017, p. 297.</ref>

The abolition of the [[collateral source rule]] (i.e. the principle that a respondent in a tort action cannot use the fact that a plaintiff has already been compensated as evidence) is another common proposal of tort reform advocates in jurisdictions where the rule exists. They argue that if the plaintiff's injuries and damages have already been compensated, it is unfair and duplicative to allow an award of damages against the respondent.<ref>{{cite web|title=Closing Arguments: Is Wisconsin's collateral-source rule worth preserving?|url=http://wislawjournal.com/2016/03/10/closing-arguments-is-wisconsins-collateral-source-rule-worth-preserving/|website=Wisconsin Law Journal|publisher=The Daily Reporter Publishing Co.|accessdate=11 December 2017|date=10 March 2016}}</ref> As a result, numerous states have altered or partially abrogated the rule by [[statute]].<ref name=NAMIC>{{cite web |url=https://www.namic.org/issues/collateralSource |title=Collateral source reforms |publisher=NAMIC |accessdate=11 December 2017 |archive-date=12 December 2017 |archive-url=https://web.archive.org/web/20171212032033/https://www.namic.org/issues/collateralSource |url-status=dead }}</ref>

Regulation of [[contingent fee]]s; as well as rules regarding [[Barratry (common law)|barratry]], [[champerty and maintenance]], or litigation funding more generally; is another aspect of procedural policies and reforms designed to reduce the number of cases filed in civil court.

In common law jurisdictions, which typically rely on judicial precedent for the creation and development of new torts, the creation of statutory torts is a means through which legislatures reform and modify tort law. A statutory tort is like any other, in that it imposes duties on private or public parties, however, they are created by the legislature, not the courts. For example, the European Union's ''Product Liability Directive'' imposes strict liability for defective products that harm people; such strict liability is not uncommon although not necessarily statutory. As another example, in England common law liability of a landowner to guests or trespassers was replaced by the [[Occupiers' Liability Act 1957]]; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in ''[[Rowland v. Christian]]'' was amended through a 1985 statute.<ref>''Calvillo-Silva v. Home Grocery'', [http://online.ceb.com/CalCases/C4/19C4t714.htm 19 Cal. 4th 714] (1998).</ref> Statutory torts also spread across workplace health and safety laws and health and safety in food. In some cases, federal or state statutes may preempt tort actions, which is particularly discussed in terms of the U.S. [[FDA Preemption]];<ref>Glantz LH, Annas GJ. (2008). [http://www.nejm.org/doi/full/10.1056/NEJMp0802108 The FDA, Preemption, and the Supreme Court]. ''New England Journal of Medicine''.</ref> although actions in the United States for medical devices are preempted due to ''[[Riegel v. Medtronic, Inc.]]'' (2008), actions for medical drugs are not due to ''[[Wyeth v. Levine]]'' (2009).