The concept of duty of care has developed significantly since the House of Lords last looked into detail of Caparo. In considering the efficiency of tort law itself, it raises the debate of corrective justice and a cost-based efficiency approach. A corrective justice approach is a prominent theory of tort law, which seeks to place ‘the defendant under the obligation to restore the plaintiff, so far as possible, to the position the plaintiff would have been in had the wrong not been committed.’ Nevertheless, Calabresi proposes the aim of tort law (aside from the requirement of justice) is to minimise the social costs of the tort. Therefore, whilst corrective justice is an important objective of tort law, it is not the sole objective, therefore developments must occur in order to satisfy a cost-based approach. Strict liability indeed achieves this. Under strict liability, the courts are not obliged to set the level of due care, as the injurer must bear the costs of the accident, regardless of the extent of her precaution. Since it is in the injurer’s self-interest to minimise her private costs: the total social costs are equal to her private costs. Therefore, under strict liability in unilateral accidents, the injurer will select the socially optimal level of care. The probability of trial should be less under strict liability. This is because it is easier to predict who is likely to win the case as it not necessary to establish that the injurer was negligent. Accordingly, voluntary payments should be much more probable, thus reducing the costs of going to trial. From this reasoning, the cost-benefit analysis is regarded as the best solution to all problems of social organisation in market transactions that are infeasible. This shows that the basic principles of economics are a powerful instrument for the achievement of social justice. Nevertheless, in a social sense, people will act in a manner to minimise their losses. Therefore, this shows Caparo as being unsuitable in determining duties as it does meet the English tort law’s objective of minimising social cost. Effective functioning of tort law will balance the corrective justice approach and cost-based efficiency.
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