This is part III of the series on tort law. For parts I (context and background) and II (basic ideas of Tort law, the Weinrib edition), please scroll down to read the earlier posts in order.
As an undercurrent to the specific questions relating to the mechanics of working out the nature of the wrong and the wrongdoer, there has been another consideration that has provided an ongoing subtext of continuity through this past year of classes. This is the issue of the purpose behind torts itself. Why do we allow for the victim to be compensated in this way at all?
Weinrib says, we allow for recovery because a right has been breached by someone else, who had a duty, as part of society, to avoid breaching the rights of others. In other words, with a tort, someone has been wronged in a way that speaks to their fundamental rights, and therefore should be compensated by the person who committed the wrong. It is about the relationship between te parties and trying to restore the wronged plaintiff to the position he or she would have been in had the tort never occurred.
But others do not agree. Others see torts (and other areas of law) as an extension of the regulatory state. They see it as another way of promoting deterrence for certain behaviours, or of promoting other kinds of caution. Some see it as an extension of punitive sanctions, in the context of private law and compensation, rather than criminal law. Others still see it as presenting a series of puzzles about who is best situated to shoulder the burden of paying for a given act of negligence–such that it’s not just about guilt and compensation but also about who can afford to pay out, or who is better insured to do so.
These additional perspectives add further uncertainty and instability to the law itself. While the outcome of any case is never a sure thing, when you add in questions of deterrence, regulation of behaviour and other considerations to the process of decision-making that a judge undertakes, it becomes even more uncertain. Because if those are all factors that must be added to the decision, you have additional layers of variables that must be considered as influences on which way things will end.
In the rights-based approach, tort law has a particular function and role. It is not about larger issues. It is about the relationship between the wrongdoer and the person who has been wronged, and it is about trying to provide recompense for that wrong. There is a certain analysis that needs to be undertaken. The outcome might not be assured–it will depend on a number of different facts that different decision-makers will interpret differently, and which will determine whether or not that relationship of wrongdoer and wronged can be established. In the careless driving case, what one judge might find to be careless driving–barely–another judge might find to be just barely within the scope of legitimate driving. But, once the careless driving is established, then it’s simply a matter of moving to the next step in the analysis. Ultimately, if a right is found to have been breached, then compensation is awarded. This can be a harsh standard, sometimes, and can feel wrong of unfair, because it feels like other factors should come into play.
With approaches that look to other factors, it’s not just about different interpretations of the facts and how a judge might read those facts and determine whether there was a wrong–though the reading of the facts will still be a factor. But it will be the first of several.
There will also be the question of what the judge considers to be the role of tort law–and indeed, of the common law and the courts in general. If he wants to deter careless driving, and feels that tort law is a good place to do it, then he might be more likely to have a strict standard for what comprises careless driving. If he feels that torts are about who is best positioned to compensate the wrongs, he might look to who has the better insurance policy–the victim or the driver (it may sound like a peculiar perspective, and yet there’s a case by the Supreme Court–not about driving, but rather on more complex issues that weren’t necessarily cut-and-dried–in which the outcome seemed to hinge in large part on who was best positioned to pay for the loss). Even if the driver was careless, perhaps a finding that will allow the victim to get a higher payout from his own insurance will be construed as the more just outcome, because the victim would be better compensated.
Of course, that would wreak hell with the precedent, but might allow for what is ultimately an outcome that is kinder to the plaintiff. In other cases, policy issues and considerations allow for an outcome that “feels” fairer. So, how does this work?
An example (from Miller v. Jackson, an English case):
A woman moves in beside a cricket field so that she has a lovely green space to look out over from her back yard. The problem (not unforseeable): cricket balls sometimes fall onto her property. The cricket club always repairs any damage, but she feels she can no longer enjoy her garden. So, she files suit and asks for an injunction to stop them from playing cricket there–even though she chose to move there because it was beside the cricket field, and even though they have been playing cricket there for 150 years. What would be a just result?
A policy-based approach might bring into play factors like what might happen to the sense of community, if the cricket club were shut down. What would the young men do, without this harmless way to blow off steam? Is it fair that this woman can move in, knowing and planning to benefit from a certain byproduct of the cricket club, while refusing to put up with another, less welcome byproduct? Should she, given that, be allowed to shut down the club?
The rights-based approach is rather different. It says, Mrs. Miller has the right to the use and enjoyment of her property. The cricket club has the same right. But they do not have the right to interfere with Mrs. Miller’s use and enjoyment of her property. So long as they can contrive to keep the cricket balls on their own property, they can play. But if this is impossible, then they are impinging Mrs. Miller’s right. The only way to prevent that is to stop playing there (shut down or move). Simple as that. Seems unfair in one way, and yet, is one property owner more important than another, such that he can take away the right of his neighbor?
If you answered “yes” then you’re probably in the purposive/policy-based camp. You may be thinking along the lines of larger benefits (if the many benefit, then maybe taking away Mrs. Miller’s right is justified in favour of the greater good). If you answered “no” then you’re a rights-based thinker.
Next up: a brief discussion of Canadian Constitutional law, and some of its core tensions and issues.
My likely-not-legally-binding-but-what-do-I-know? disclaimer.