Thus, the United Kingdom recently removed the standard of strict liability for the violation of cer

tain health and safety regulations in an effort to combat the compen sation culture. It is no longer
seen as fair and just to hold employers liable when they took all reasonable steps to prevent the
accident. This also seems to fit better modern working life, where the risk is often no longer that
of physical injury but of mental distress caused bye too high stress levels at the working place.
To avoid this from happen- ing is a joint responsibility of employer and employee. Apart from
the risk of accidents at the workplace, another important source of danger in today's society
consists of participating in traffic, either as a motorist or as a pedestrian or cyclist. Motor
vehicles are undoubtedly inherently dangerous objects that, even if the driver exer- cises utmost
care, can cause grievance. Lord Denning put it like this: IAjny civilised system of law should
require, as a matter of principle, that the person who uses this dangerous instrument on the roads
- dealing with death and destruction all around-should be liable to make compensation to anyone
who is killed or injured in consequence of the use of it."

Interestingly, however, only a few jurisdictions accept a fuil strict lia- bility for traffic accidents.
Englist law certainly does not: it bases traffic iability still on negligence by asking whether the
driver breached his duty to exercise reasonable care not to injurc anyone else. French law, with a
strict liability of motorists versus pedestrians and cyclists who suffer personal injury, is at the
other end of the spectium. However, such differences between national regimes of traffic liability
do not really affect the position of the injured party because many countries have compulsory
insurance against the risk of liability for accidents caused by motor vehicles. This is both in the
interest of the victim (who is certain to be compensated) and of the motorist-tortfeasor (who will
not go bankrupt in case of an accident). Routine cases of personal injury in the case of
automobile accidents - in fact the bulk of tort cases in any legal system - are therefore usually
dealt with among private insurers Not only goods or activities are inherently dangerous. This is
also true for a special category of people, namely young children. (hal 42)

3.4 Compensation and deterrence: on remedies in tort law (hal 44)

It has by now become abundantly clear that tort law does two thing it sets norms for
behaviour by requiring people to act as reasonable persons and it makes people liable for damage
caused by dangerous activities society finds legitimate. In both instances tort law selects the
cases in which the victim is empowered to recover from the tortfeasor. So far nothing has been
said about the type of remedies the claimant can bring. The answer to this depends to a large
extent on the aims one believes remedies in tort law should have: should a claim primarily
compensate the victim for the suffered loss, should it deter the wrong- doer (and possibly others)
from acting in the same way in the future, should it punish the tortfeasor, or, finally, should it
simply serve to recognise that the defendant did something wrong?
 It is intuitive that a remedy in tort law serves, in any event, to compensate the victim for
his losses. The tortfeasor has disturbed the existing equilibrium and must therefore restore the
status quo by put- ting the victim as much as possible back into the position he would have been
in had the tort not occurred. If corrective justice ever has a place in law, it is here: it allows the
victim to get even. However, if making good the loss was the only aim of remedies in tort, better
methods exist. Tort law is in fact a highly inefficient instrument to ierrepair harm, because it
requires individual victims to go through the albove toa slow and expensive justice system to get
compensated. Social security and private insurance are both cheaper and quicker and may
therefore be preferred over tort law. This is why deterrence is often seen as another aim: the
threat of liability in damages would stimulate the potential injurer not to commit a tort. If the
reasonably careful John slips and falls on a wet floor in Anna's deli, John cannot do much to
avoid this but Anna could have taken the necessary precautions to make John's accident less
likely to occur. However, one may ask whether people are truly motivated to be more careful out
of fear for a damages claim. In so far as being more or less careful is based on a rational decision
about possible legal consequences at all, the fear of losing customers or of social sanctions is
likely to play a bigger role. Certainly for companies and government bodies, fear of bad public-
ity is a better incentive to obey the law than the risk of having to pay damages. As the saying
goes: sunlight is the best of disinfectants. Moreover, it was noted earlier that tort law also holds
people liable in cases where they are not really to blame but the damage is the simple result of an
error or a brief moment of inattentiveness; criminal law which usually requires intent, may do a
better job in providing the appropriate incentive not to harm others.

A third possible function of a claim in tort law is to punish the tortfeasor his wrongful
behaviour. It can do so by awarding a greater sum of damages than the actual loss suffered by the
victim. This legal technnique can already be found in the Old Testament, which utters 'If a man
shall steal an ox, or a sheep, and kill it, or sell it, he shall restore five oxen for an ox, and four
sheep for a sheep. Not many jurisdictions are willing to accept this wisdom, but those that do
attract a lot of attention. American law in particular provides well-known examples of juries
willing to award high amounts of punitive damages in cases of intes tional or reckless
wrongdoing. In Liebeck v McDonald's an elderly lady splled McDonald's coffee onto her lap
resulting in severe burns on her thighs, buttocks and genitals. The jury awarded $2.7 million in
punitive damages, later reduced by the appeals judge to $480,000. The publicity these cases
attract is not representative of American law as a whole. Only in 2 per cent of civil cases are
punitive damages awarded and the average amount does not exceed s5o,ooo. However, in non-
frivolous cases punitive damages can fulfil a highly useful function in preventing companies
from future wrongful behaviour, as demonstrated by the case of Grimshaw v Ford Motor
Company. The gas tank in Lily Gray's Ford Pinto exploded when her car was struck from behind
by another vehicle. Lily died and her 13-year-old son Richard was severely burned. It turned out
that the gas tank in other cars of the same type also tended to explode when involved in a rear-
end collision as a result of a faulty design of the car. Ford knew about this defect before it put the
Pinto on the market but considered it too expensive to do anything about it. The company had
rationally calculated that to remedy the mechanical problem would have cost over $100 million
($11 per car) while likely costs of claims by possible victims were estimated at only $50 million.
The jury had no trepidation in awarding $125 mililon in punitive damages to Richard. Although
this amount was reduced by the court, it is clear that in cases like these punitive damages can be
effective means of deterring a company from entering into such outrageous conduct again.
However, this is not an argument likely to lowed in Europe: the main reason why hardly any
European jurisdiction allows punitive damages is because they believe an individul would then
act as a 'private attorney general' thus going against the state monopoly on punishment.