Class 1 Answers
1. You should be able to distinguish between the American approach to tort law and the
Canadian or U.K. approach.
According to Wienrib that is: the American approach is more concerned with
compensating injured plaintiffs, and less concerned about apportioning fault. It is
believed generally that businesses or insurance companies can bear the cost of
compensating injured plaintiffs. An example of an American case: the plaintiff used a
lawnmower to trim a hedge. He fell backwards and was injured when the lawnmower fell
on top of him. He sued successfully for his injuries.
In Canada, that same situation would in all likelihood result in the plaintiff losing his
case. In Canada, the court would say that the injury was the plaintiff’s fault, and the lawn
mower manufacturer had done nothing wrong. Canada is the more traditional tort
regime, perhaps a bit more conservative, and less concerned with broad social
implications of a judgment. Canada sees the law as more the “private” dispute between
the parties before the court.
It has been suggested by Wienrib that Canada has more socially minded legislation, for
example universal health care, and that this make the consequences for injured
plaintiffs less severe than in the U.S.. This perhaps causes judges in the United States
to be more concerned about finding money to provide health care that in Canada would
be more easily obtained without large judgments.
2. What is meant by loss fixing?
Loss fixing means determining whose “fault” is the injury, and deciding who will pay and
whether compensation will be granted, based on fault/ responsibility.
3. What is meant by loss spreading?
This approach to tort law sees the businesses and insurance companies as an efficient
way to “spread” the loss out among a greater number of people. Liability is seen as a
tax on business activity, or just the cost of doing business.
4. What impact is insurance having on tort law?
The impact is most noticeable in American jurisprudence. Courts seem to assume the
insurance coverage is available, it should be used to compensate or look after the
plaintiff. This means that the availability of money for damages will determine the
outcome of the case. As you know from Palsgraph, the liability question comes first, and
damages only after this is established. Liability is established by foreseeability and the breach of a standard of care. If the ability of the defendant to pay is the determining
factor, this sets tort law “on its ear”. If ability of the defendant to pay a claim was how we
determine liability, then a plaintiff would lose the case if the defendant was
impoverished. Clearly this is inconsistent with tort law as we understand it.
In addition, a loss spreading model, one based primarily on the availability of insurance
proceeds, takes on a “social” context, moving away from the particular relationship
between the parties in litigation. This is a distributive justice model, moving away from
the private sphere and into the public.
Accordingly it moves away from a “Kantian” individual accountability, and into a more
“utilitarian” or “greater good” model of adjudication. We will have more to day about this
later, but for now, consider one of the main criticisms of utilitarian philosophy is its
failure to take the “individual person” into account.
5. Do you think this might explain the differences in what you have heard about
damages awards in the U.S.? Or perhaps this is what makes the U.S. a “litigious”
In Canada, we try to stick with traditional tort principles, no fault no liability. In the U.S., if
businesses know their liability threshold is low, determined by the injury sustained and
not so dependant of fault, and insurance companies know the likely results, then
businesses will increase their coverage, more businesses will get insurance, courts are
aware that there are proceeds available and award higher amounts, the effect could
snowball. It is certainly the case that damages awards are much higher in the U.S. than
in Canada. Plaintiffs rarely sue defendants who have little or no money, it costs too
much for the result of little or no return.
Another factor: in the U.S. lawyers often work for “contingency fee” arrangements where
they don’t get paid unless they win something for the plai