Is Private Law Tort Adjudication a Public Good? The Case of Dissipation of Damages

Lump sum compensatory damages awarded through court adjudication are regarded as the proper result of tort personal injury litigation delivering corrective justice to worthy plaintiffs and delivering public statements of moral blameworthiness. In this article, we show that the problem of premature dissipation of lump sum compensation is a problem of ‘private’ tort law and also of the public aspect of private tort law. We argue that the theoretical account that corrective justice for personal injury occurs by the delivery of lump sum damages is heavily compromised by how rarely plaintiffs are likely to receive what might be considered a full measure of damages compared to the wrong and harm suffered. In addition, the reality that those ‘reduced’ damages are delivered via confidential settlement diminishes the public aspects of tort law. We show that the premature dissipation of lump sum damages by injured plaintiffs is a wicked problem caused by many intersecting factors including aspects of tort law (common law and statutory); institutional factors; the impact of early settlement of claims; treatment of legal costs; the interaction between tort law and other systems such as social security; and factors personal to plaintiffs.