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The Other Side of Tort Liability: When the System Doesn’t...
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The Other Side of Tort Liability: When the System Doesn’t Seem to Work

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (30 June 2025) | Viewed by 1737

Special Issue Editor

Prof. Prue Vines

E-Mail Website
Guest Editor
Faculty of Law & Justice, The University of New South Wales, Kensington, NSW 2052, Australia
Interests: tort law; especially the impact of apology on tort liability; succession law, esp. comparative succession law and Indigenous issues in succession law

Special Issue Information

Dear Colleagues，

We spend most of our lives discussing the doctrine of the law of torts, but in this Special Issue of Laws I want the articles to discuss how the law of tortious liability actually impacts on the people who go through the compensation systems, whether standard litigation, class actions, or workers’ compensation systems. We know, for example, that the length of time litigation takes appears to affect the mental health of plaintiffs badly. We know that people are awarded damages, but that often those damages appear not to be enough. We also know that the increase of settlements which are confidential may be affecting the law. Other issues which may impact on people’s experience of the tort liability system include whether apologies appear to benefit people or reduce their desire to litigate and what the ramifications of this are. Class actions are regarded as an important way of getting access to the law but do they actually assist in access to compensation or simply reduce the likelihood of adequate compensation being received? A few years ago I edited, with Arno Akkermans, a book entitled Unexpected Consequences of Compensation Law (Hart Publishing, 2020) in which we began to look at some of these issues. In this issue I would like to investigate the impact of the doctrines and procedures of liability in tort law further. I am assuming you have an interest in torts which goes beyond the doctrinal and extends to some aspect of how torts impacts in the real world. I very much hope you will be interested in contributing an article on some aspect of this topic. I’m very happy to discuss it with you to help shape it if you would like.

Prof. Prue Vines
Guest Editor

Manuscript Submission Information

Manuscripts should be submitted online at www.mdpi.com by registering and logging in to this website. Once you are registered, click here to go to the submission form. Manuscripts can be submitted until the deadline. All submissions that pass pre-check are peer-reviewed. Accepted papers will be published continuously in the journal (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as short communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). All manuscripts are thoroughly refereed through a double-blind peer-review process. A guide for authors and other relevant information for submission of manuscripts is available on the Instructions for Authors page. Laws is an international peer-reviewed open access semimonthly journal published by MDPI.

Please visit the Instructions for Authors page before submitting a manuscript. The Article Processing Charge (APC) for publication in this open access journal is 1400 CHF (Swiss Francs). Submitted papers should be well formatted and use good English. Authors may use MDPI's English editing service prior to publication or during author revisions.

Keywords

  • tort law
  • tort liability
  • compensation law

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Published Papers (3 papers)

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Research

17 pages, 243 KB  
Article
Apologies in Mitigation of Damages for Negligence: Incentive or Weapon?
by Jessica Kerr and Robyn Carroll
Laws 2025, 14(4), 59; https://doi.org/10.3390/laws14040059 - 13 Aug 2025
Viewed by 363
Abstract
Apologies can offer solace and compensate for intangible and emotional harm in social and legal contexts. In some areas of law, an apology offered by a defendant will be factored into the assessment of damages awarded to vindicate the plaintiff’s rights and compensate [...] Read more.
Apologies can offer solace and compensate for intangible and emotional harm in social and legal contexts. In some areas of law, an apology offered by a defendant will be factored into the assessment of damages awarded to vindicate the plaintiff’s rights and compensate for loss. This is the case in Australia, the jurisdiction primarily considered in this article, and in many other jurisdictions. There is a danger, however, of assuming that because apologies are compensatory in some sense, they can be used as a basis to reduce damages in tort law more generally. Even though general damages for non-pecuniary loss in fault-based torts are incommensurate to a monetary amount, they are still intended to compensate for actual loss. Empowering defendants to reduce their damages exposure by apologizing might incentivize meaningful apologies which are valued by plaintiffs. It might also create perverse incentives for plaintiffs and defendants alike, further unbalancing a system in which plaintiffs are already at risk of under-compensation. And it raises uncomfortable questions of evidence, reciprocity, agency and expertise which are yet to be fully explored. We argue for these reasons that it is not currently defensible to reduce an award of general damages for negligence, especially for personal injuries, on the basis of an apology by the defendant. Full article
(This article belongs to the Special Issue The Other Side of Tort Liability: When the System Doesn’t Seem to Work)
21 pages, 271 KB  
Article
Moral Injury: An Emerging Aspect of the Employer’s Duty of Care to Employees?
by Wendy Elizabeth Bonython
Laws 2025, 14(4), 58; https://doi.org/10.3390/laws14040058 - 12 Aug 2025
Viewed by 465
Abstract
Moral injury is a discrete form of harm affecting individuals as a potentially avoidable consequence of exposure to a morally injurious event. That injury (independent of psychological injury or illness) has been identified as a cause of physical symptoms, suicide and suicidality. Originally [...] Read more.
Moral injury is a discrete form of harm affecting individuals as a potentially avoidable consequence of exposure to a morally injurious event. That injury (independent of psychological injury or illness) has been identified as a cause of physical symptoms, suicide and suicidality. Originally identified within military and veteran cohorts, it is observable in emergency responders, healthcare providers, human rights advocates and others. Its aetiology suggests that other groups where the potential for tensions between personal morals, professional ethics and occupational activities arises (such as whistleblowers, law enforcement personnel and lawyers) may be at risk. Despite increasingly diverse evidence identifying moral injury as a substantive harm with significant consequences, the legal options for redress are unclear. This article explores whether requirements for establishing a duty of care as a precursor to a negligence claim are likely to pose an insurmountable obstacle for plaintiffs, including in the context of employer–employee duty relationships. It concludes that despite popular perceptions that negligence law is unlikely to be able to accommodate moral injury claims, a closer reading of key judgments indicates that there are opportunities for it to potentially be recognised as a harm on a principled basis—consistent with existing jurisprudence and legislation—for the purposes of establishing a duty of care. In the event that normative claims for its recognition are resisted, the justification for that resistance must be found outside historical development of legal principles from case law. Full article
(This article belongs to the Special Issue The Other Side of Tort Liability: When the System Doesn’t Seem to Work)
14 pages, 220 KB  
Article
Resolution After Medical Injuries: Case Studies of Communication-and-Resolution-Programs Demonstrate Their Promise as an Alternative to Clinical Negligence
by Jennifer Sarah Schulz
Laws 2025, 14(4), 55; https://doi.org/10.3390/laws14040055 - 6 Aug 2025
Viewed by 390
Abstract
The agony of medical negligence for all involved is well documented. Health practitioners involved in harm events are described in the literature as “second victims”. Injured patients report that clinical negligence litigation is traumatic, slow, expensive, and does not meet their needs. Clinical [...] Read more.
The agony of medical negligence for all involved is well documented. Health practitioners involved in harm events are described in the literature as “second victims”. Injured patients report that clinical negligence litigation is traumatic, slow, expensive, and does not meet their needs. Clinical negligence lawyers have complained that healthcare injury cases are so complex and expensive that many firms do not accept these cases. This article uses a qualitative case study research design to analyse two cases from the United States of America (US) to explore the promise of an alternative resolution process: the communication-and-resolution program (CRP). CRPs involve the hospital disclosing the healthcare injury, investigating and explaining what happened, apologising and, sometimes, offering compensation to injured patients and families. In the US, CRPs have not replaced tort law. The two case studies analysed in this article offer a rare insight into the accounts of those who have experienced clinical negligence and an alternative non-litigation approach. The case study approach delves into the detail, providing an in-depth glimpse into the complexity of healthcare injuries in their real-life context. The case studies provide valuable lessons for reshaping resolution processes to better meet injured patients’ needs. Full article
(This article belongs to the Special Issue The Other Side of Tort Liability: When the System Doesn’t Seem to Work)
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