Theories of Tort Law

Outline Nature of the defendant’s conduct – potential bases of liability. Theories and functions of tort law. Remedies.

Potential Bases of Liability “No-Fault” “Fault”  Fault not required  Causal link required  Fault required  Causal link required Strict Liability Absolute Liability Negligence Intentional Wrongdoing  Liability flows from causal link alone  No defences Causal link + other elements required  Defences may lie Causal link + lack of reasonable care  Defences may lie Causal link + intent required  Defences may lie Not generally applied in Canada Few torts in Canada follow this theory Tort law in Canada generally falls at this end of the spectrum

Fact Scenario Affordable car – OAC “Access” 1,000 sold when defect is discovered. Defect could cause an explosion. Chance of explosion: 1 in 100,000. Cost to recall and remedy: $5,000 per car. OAC decides not to recall the cars. Mr. B and daughter in their Access – it explodes. Mr. B killed and daughter severely burned.

Theories of Justice (after Aristotle, Nicomachean Ethics, Book V) Distributive Justice Corrective Justice  Assumes pre-existing distribution of benefits in society Seeks to annul “wrongful” changes in distribution by restoring parties to original positions  Governs distribution of benefits among members of society Distribution is “just” if it reflects the relative “worth” of members of society

Remedies Judicial Extra-judicial damages injunctions declarations specific restitution Extra-judicial lawful unlawful

Contemptuous Damages Claim is technically valid. Court disapproves of the claim and awards a very small amount of damages. In the alternative, the court may use the cost award to demonstrate its disapproval.

Classification of Damages Nominal Compensatory Punitive  non-pecuniary redress for violation of right generally only for torts actionable per se pecuniary & non- pecuniary redress for actual damage  non-pecuniary  punish/deter/denounce egregious conduct  only in exceptional cases Special General pecuniary precisely calculable pre-trial losses e.g. past loss of income, past costs of care, out of pocket expenses, etc pecuniary & non-pecuniary  not precisely calculable at trial Pecuniary Non-pecuniary e.g. future loss of income e.g. cost of future care e.g. pain, suffering aggravated damages

Principles of Punitive Damages Purpose – punish, deter, denounce, strip of profits. Awarded with restraint and only if compensatory award is insufficient to achieve purpose. Lowest award necessary to achieve purpose.

Disgorgement Relief is measured by the defendant’s gain, not the plaintiff’s loss.