Law 3010
TORTS
Tort law is just one way that Canadian society deals with harm that befalls
people. The key element of most tort law is that people harmed by the act or
omission of another person can sue for compensation or another remedy
such as injunction, whereby courts rule that the person causing harm must
cease doing so. Some torts require intention on the part of defendant such as
assault, battery, or false imprisonment. Other torts require only negligence or
carelessness on the part of the defendant.
A small class of torts requires strict liability on the part of the defendant. In
all three cases, the plaintiff (allegedly injured party) must prove that the
defendant’s intentional, negligent or strict liability action (or at times
omission) CAUSED the harm she experienced. It should be noted that a
normally necessary ingredient of tort as a way of compensating harm caused
by another person is that that person has liability insurance that allows the
injured party to receive compensation for his losses or injuries. A wealthy
individual, or a medium to large-sized corporation, may self-insure, that is,
pay compensation directly without liability insurance, but that is unusual. A
serious limitation of tort law is that an uninsured person who causes
wrongful harm to another may have no third-party liability insurance and no
way of making restitution to the injured party.
There is a variety of other ways of compensating persons for harm caused by
another or protecting them from the harm.
Insurance (private)
An individual may insure herself against personal injuries, losses of income,
damage to property etc. by paying premiums to an insurance company.
Accordingly, if a drunk driver crashed into the policy holder’s garage and
fled the scene, the injured party would receive compensation from his own
insurance company if it included payment for damage to property. Insurance
works on the basis of the pooling of risks among policy holders. Those
policy holders lucky enough to suffer no personal injury or damage to or loss
of property effectively subsidize those policy holders who experience loss.
Such insurance is normally operated by private companies.
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Insurance (public/social)
State welfare, long term disability and state retirement pension etc. programs
exist in Canada to protect citizens against loss of income due to physical
injuries, and loss of earnings due lack of earning capacity due to
disablement, old age and unemployment. Public health care is a form of such
“insurance” to the extent that all taxpayers contribute to the pool of state
health care resources and benefit from such resources when they experience
illness or injuries however caused. Part of the current political debate in
Canada concerns whether it is preferable to fund health care through taxation
and make it universally available, or whether individuals should have the
choice of whether to insure privately against the cost of health care in the
event of ill health or injury.
Insurance schemes can sometimes be “no-fault”. That is, an injured person is
compensated regardless of whether she or another person was at fault in
causing the injury. The advantage of this is that it avoids expensive legal
action and the burden of proving another person was at fault. An example of
his is public no-fault motor vehicle insurance as exists in the Province of
Saskatchewan. Such schemes are typically opposed by lawyers and
insurance companies, no doubt because they are state run. This deprives
insurance companies of profits and the no-fault component eliminates the
need for law suits to prove another party is at fault. A criticism of no-fault
insurance schemes is frequently that they fail to pay the full cost of the
injury sustained.
Insurance schemes can sometimes have both private and public elements.
Workers Compensation is an example. Provinces in Canada require most
employers to contribute to an insurance scheme designed to compensate and
rehabilitate workers injured in the course of the employment. The province
does not subsidize the system but establishes legal rules for the scope of the
scheme, eligibility of employers and employees o join etc. The Workers’
Compensation Board (WCB) is separate from Government but is given
powers by legislation, or regulations passed by government. This body
compensates financial losses due to workplace injuries however caused. The
trade off is that workers have no right to sue employers even if their injuries
are not fully compensated by the WCB.
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Trial by battle
This was introduced to England by the Normans. It was normally used to
prosecute and defend criminal charges but later was used in civil suits where
the parties nominated champions to fight on their behalf. Trial by battle was
abolished in England in 1819. See:
http://www.languageandlaw.org/TEXTS/TRIAL/BATTLE.HTM
Strict liability for harm caused
In early days of English law, liability for bodily harm could be strict
liability. That is, only causation had to be shown. Note that in USA law
manufacturers are strictly liable for injuries caused to users of defective
products. The injured party need not prove intent or negligence He must
prove a defective product and injury caused by the defect.
Liability for negligence
There is a significant amount of law in Canada, England, USA providing for
liability for harm caused by another party due to the latter’s negligence. In
the case of manufacturers’ liability in Canada, an injured party must prove
negligence on the part of the manufacturer.
Liability only for intentional actions
It is possible to limit liability only to intentional actions. For example on a
soccer field a foul is committed only if it is intended. This is a lower
standard of care on the part of the person performing the action. Criminal
law normally requires intention to do the action on the part of the defendant.
However, “intention” can include “recklessness” in one’s action. One might
throw a bomb into a crowd intending just to scare people not to harm them.
However, if one knew or ought to have known that the act risked serious
harm to other people, such recklessness would essentially count as intention.
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Criminal penalties
Criminal penalties may help resolve disputes to the extent that victims of
crime feel vindicated and benefit from the knowledge that justice has been
done to the perpetrator of the crime that harmed them. Victim impact
statements can influence the measurement of criminal penalties. Also
criminal injuries boards can compensate victims financially for their injuries.
Judges may also direct a convicted person to provide restitution to the
victim.
Sentencing circles
In the Nunavut and Yukon, aboriginal sentencing circles have arisen as
novel ways of settling grievances after a crime has been committed. Friends
and relatives of both the perpetrator and the victim participate in attempting
to heal the wounds of the crime and to negotiate a settlement that may help
to rehabilitate the perpetrator and satisfy the victim and the judge. The
accused must confess to and repent for his crime before a circle will be used.
Vendetta
At the other extreme, an alternative to legal settlement of disputes is
vendetta. This can occur with territorial gangland “wars” such as the recent
shooting in Toronto.
Let the damage rest where it falls
Where harm is not intentionally or negligently caused and there is no strict
liability, the damage from an event may simply rest where it falls. If a driver
has a heart attack, loses control of her vehicle and injures another, there is no
evidence of intention or negligence. If the victim is uninsured the damage
may rest upon the victim.
Contract agreeing who should bear liability
Liability for harm can be apportioned through the law of contract. A courier
company may negligently lose and fail to deliver a valuable package but the
other party may be unable to receive compensation if there is a contractual
term that places the risk of loss through non-delivery on the person who paid
for the service.
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Apply damages only to certain types of harm
A person can be negligently harmed by another but receive no compensation
if the legal system does not recognize such harm as worthy of compensation.
For example, a motorist might negligently run over a child an kill it. A
passer-by might witness this and suffer severe nervous shock. Unless the
passer-by were closely related to the child there would be no compensation
recognized by Canadian courts.
If a large store opened in a neighbourhood and caused a nearby competitor
to go out of business, there would be no legal recourse for such losses.
Currently, the law in Canada would not view such an action as illegal and
would not consider the damages compensable. This differs from early 18 th
Century USA , England and Canada where the law tended to protect
established businesses from crippling competition.
These examples illustrate the variety of means for settling disputes about
who should compensate for harm done. Note too that the most frequent form
of dispute settlement arises outside of the law, in the form of negotiation.
This works well most of the time but can falter if there is great inequality of
power between the parties. Mediation and conciliation can sometimes assist
settlement through negotiation. Human rights cases and most civil cases
under the law require the parties to attempt a negotiated settlement prior to
trial.
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