LAWG 101D2 Lecture Notes - Lecture 7: Objective Test, Liability Insurance, Contributory Negligence
23 Jan 2018
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Class 7 assessing the reasonable person standard. Conditioning liability on fault seems at once too strict (an inadvertent slip may lead to massive liability) and too weak (if i drive over your bike you incur the same loss regardless of whether i drive carelessly). And even if it is, is the broader institution of tort law justified, especially in view of the alternatives (eg, administrative regulation, compulsory insurance schemes). Holmes, the common law [100] utilitarian social welfare approach. Thesis: only cases where ordinary human care and understanding could have prevented damage constitute liability, we do not want to discourage people form acting, but from acting carelessly. Two theories of the common law liability for unintentional harm: austin: liability based on personal fault, liability as a penalty for disobedience (criminalist) To redistribute losses simply on the ground that they resulted from the defendant"s act would offend the sense of justice. Thus the defence for liability only with fault.
