Balancing Benefits and Costs to Tort Victims

 [Cross-posted on the parent blog]

[It has come to my attention that I'm an idiot and apparently can't tell the difference between the word "defendant" and "plaintiff."  I apologize to anyone who may have been confused by this post.]

In an earlier post, I wrote:

In his essay, "Science, Public Policy, and Global Warming: Rethinking the Market Liberal Position," Edwin Dolan writes, "Certain defenses are allowed against a charge of assault or trespass. Consent of the victim is one. Also, if no causal relationship can be shown between the action of the defendant and the offense to the victim, the tort is not proved. However, certain attempted defenses are not recognized as legally valid..." Of these, one is "A showing that the defendant gained benefits from the tort, the value of which exceeds the costs to the victim."

This means that an individual can perform an action which is beneficial to everyone, and still be required to compensate people for any individual negative effects resulting from the action. It is important to note that the issue is not whether it could be proven that the action produced beneficial consequences for the victim that were more significant than the costs imposed. Rather, even if this were proven, the boundary-crosser would still be required to pay the victim.

I said I needed to think about this idea, and after having given it a while to digest in my head, I've come to a cautious and tentative conclusion: This is still the craziest damn thing I've ever heard. I'll try to sketch some reasons why we should reject it, but I still haven't found anyone who has wanted to defend the idea, so I'm not quite ready to declare any sort of victory.

The main reason I don't like this idea is that the whole point of taking someone to court is that damage done to you is made right. Usually, what this means is making me give you some benefit (i.e. money) which supposedly makes everything okay. It doesn't seem to me that it needs to be money. Perhaps it would be difficult to say whether another kind of benefit was appropriately valuable, but we're assuming away that epistemological problem when we say that the benefits do outweigh the costs. Accordingly, it seems like what's going on is that I can legitimately harm you and then give you a compensating benefit later, but for whatever reason, it's not okay if I give you the compensating benefit at the same time as the harm you endure. How this makes sense is beyond me.

Perhaps someone could take exception to the idea of a compensating benefit "balancing out" a cost. Let's say I smash your window with a bag of money which would easily pay for a new window, with enough left over to compensate you for the inconvenience. I could see why someone might say that simply being compensated couldn't erase the harm done; the aggregating view of harms and benefits might be inadequate. But that's now what's at issue here. If you wanted to make such an objection, then it would be contentious whether or not the benefit outweighed the costs you incurred. In the example, we agree that the costs have been outweighed. Accordingly, it seems like this objection falls short.

To be honest, if I smashed your window with a big bag of money, and you agreed that the money was sufficient to compensate you for the damage I caused, then I have no idea why you would be justified in taking me to court. Perhaps you could demand an injunction so that I would be prohibited from breaking your window again. But how would it make sense to force me to compensate you again? I simply can't wrap my head around it.

In any case, I might simply be misunderstanding what's going on here. I'm no legal scholar, after all. I'll keep asking around.