Documentation:Torts/Instrumental theories

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
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Negligence Tort
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Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Instrumental theories

Ralph Nadar on the importance tort law
In this POLITICO episode "Why Ralph Nader wants you to know about tort law", American cartoonist Matt Wuerker guides us through Ralph Nader's take on the importance of tort law.

Instrumental theories of tort law are concerned with what tort law does or should do in society. This perspective understands tort law as an instrument to achieve certain goals.[1] It is a means to one (or some) particular societal ends.

Instrumental theorists tend to take an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.[2] The main goals advanced by instrumental theorists include compensation (Morton Horwitz), deterrence (Guido Calabresi and Richard Posner), or punishment (George Fletcher). Professor Basil Markesinis discusses how the history of tort law has seen the pursuit of different ends: "punishment, appeasement, deterrence, compensation, and efficient loss spreading of the cost of accidents. None offers a complete justification; all are important, though at different stages one may have been more prominent than the rest."[3]

Compensation

Compensation theories of tort law consider the purpose of tort law to be the compensation of injured victims. We see this idea in the tort doctrines that determine whether harm has occurred and that provide for a damages remedy that compensates an injured party for the losses they have suffered.[3] In remedying injured victims, tort law "overwhelmingly relies on the common currency of money".[4] Lord Blackburn summarised the compensatory principle in Livingstone v. Rawyards Coal Co.: that the award of damages "should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."[5]

Greg Keating on Tort Theory[website 1]
In this episode of the Private Law Podcast host Felipe Jimenez discuss with professor of Law and Philosophy at the University of Southern California Greg Keating, to discuss central arguments in tort theory between dominant instrumentalist and constructivist schools.

The conception of tort law as a compensatory mechanism gained traction in the industrialization era.[6] In the mid-20th century, scholars such as Morton Horwitz, Jeffrey O'Connell, Fleming James Jr., and George Priest emphasized the harm element of tort law and advanced insurance and compensation-based theories of civil liability.[7] For Morton Horwitz, the "social function of tort law ... is the provision of compensation". Horwitz advanced the idea that tort is a system where losses are shifted from the injurer to the injured, culminating in what is known as “subsidy theory”.[8] Gary Schwartz addressed the potential of tort law to be a tool for providing “subsidy [for] economic enterprise” in the era of mass economic growth.[6] Their theories explain why tort law should award compensation for workplace accidents, product liability, and environmental disasters.

Critiques of compensation theories

Financial impracticalities

While compensation obviously plays an important role in tort law, other scholars question its centrality.[9] As a system of injury compensation, the tort system is hardly the most efficient. There are often significant barriers to victims actually receiving compensation through the tort system. Tort law depends upon the plaintiff establishing a particular defendant's liability through breach of duty, fault, causation (which are hurdles to obtaining a remedy), and an effective tort system requires there to be evidence, a pecunious tortfeasor, and competent legal representation. One study identified the United States tort system costing $443 billion in 2020 to administer, with successful plaintiffs receiving only 53 cents of every dollar awarded.[10]

These features of the tort system—legal liability and defendant solvency—present challenges to theories that promote the centrality of compensation to tort law. On the one hand, it can be costly and risky for a plaintiff to pursue a tort case: they may commit to extensive legal expenses and yet still fail to establish all of the elements of a tort claim because of evidential or other deficiencies in their case.[11][12] On the other hand, not all defendants may be capable of paying damages awards, leaving plaintiffs with the possibility of receiving no financial remedies. While the doctrine of vicarious liability may facilitates tort's compensatory goal by attributing liability to a deep-pocketed principal, it does not always apply. Thus there are barriers to compensation, which brings into question its centrality to the tort system.

Caplan v. Atas, 2021 ONSC 670[13]
While the compensation theories advance an idea that tort law serves to compensate victims, cases like Caplan v. Atas illustrate the difficulties of translating theory to practice.[14] The defendant carried out a harassment campaign against 150 victims, but her financial impecuniousness made her effectively "judgment-proof," leaving her victims without an effective remedy.[15]

Contrasting tort law to 'no fault' compensation schemes

In the news
The practical realities of medical negligence in Canada
CMPA.jpg

The Radio Canada article "Want to sue your doctor? You’ll be up against a powerful group with billions of dollars" considers the difficulties of litigating medical malpractice claims against the Canadian Medical Protective Association, an organisation that defends medical professionals and has $6B in assets. The article states that "[b]ecause of the odds being stacked so heavily against the injured person, very few cases are cost effective in bringing forward," suggesting that compensation is very difficult to achieve through such tort claims.[16]

If compensation is the societal goal, why should it be necessary for defendants to pay? There is a more direct way to go about compensating the injured than requiring plaintiffs to prove wrongdoing and injury in court. We could replace the fault-based tort system with a comprehensive compensation scheme that compensates injury victims regardless of who was at fault. In the 1960s, American law professors Robert Keeton and Jeffrey O'Connell advocated for 'no-fault' compensation systems, considering the tort system "a failure in its measuring of compensation for personal injuries."[17] In the 1970s, New Zealand introduced the most comprehensive no-fault compensation scheme in the world, which replaces tort liability for (most) personal injuries occurring in the country. Advocates of no-fault systems argue they are particularly valuable as a replacement to medical malpractice or workplace injury tort claims, where meaningful compensation through the adversarial tort system can be challenging to achieve.[18]

Deterrence

Deterrence theories of tort law tend to conceive of the tort system as a mechanism for discouraging harmful conduct through the threat of potential civil liability.[3] In the 1970s, scholars such as Guido Calabresi and Richard Posner advanced economic arguments for how tort law deterred individuals and entities from engaging in harmful conduct. Their theories precipitated an “explosion of scholarship analyzing tort law in economic terms” and has put deterrence at the centre of instrumentalist theory generally.[19]

In The Cost of Accidents, Guido Calabresi explored how society can reduce accident costs by discouraging "activities that are 'accident prone'" through enforcing monetary awards (damages) and encouraging "safer activities [or] safer ways of engaging in the same activities".[20]

Richard Posner utilized economic tools of analysis to demonstrate how deterrence can explain tort doctrine, particularly when it comes to business enterprise. The threat of liability can lead to efficient behaviour modification through potential defendants investing in precautions and compliance with safety guidelines in order to avoid accidents.[21] In this way, the "law becomes the agent for the market rather than its principle".[22]

Hill v Church of Scientology of Toronto[23]
The Supreme Court of Canada has said that "[d]eterrence is an important justification for punitive damages."[24] Cases like Hill v Church of Scientology of Toronto illuminate tort law's potential deterrent effect. The Court awarded $800,000 in punitive damages to Hill, who experienced significant defamation at the hands of the Church of Scientology and it's lawyer. The Court stated that punitive damages "are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner."[23]

Critiques of deterrence theories

The pitfalls of economic assumptions

Deterrence theories of tort liability rely heavily on the assumption that the threat of civil liability influences behaviour. [6] Posner and Calabresi's work tends to assume that "people rationally pursue the goal of wealth maximization" and thus are subject to legal discouragement. [25] Stephen Sugarman, by contrast, has cast significant doubt on this assumptions, illuminating behavioural elements that undermine deterrence in the tort law system.[26] Studies have also shown that people are "particularly ignorant to the law" and often "discount the possibility of being held liable," which might call into question theories that are premised on assumptions of individuals acting as rational actors in society. [6]

Insurance and varying relationships with civil liability

Some argue that the widespread availability of viability insurance, which protects people from direct exposure to the costs of litigation, undermines the claim that tort law deters. Insured defendants may face limited incentive to avoid tortious conduct as they are protected from financial misfortune by their insurance company.[3] On the other hand, the growth of corporate governance, and big business' investment in environmental, social, and governance models have shown the potential impact of deterrence on corporations.[27] Furthermore, even though economic principles of deterrence have been helpful in understanding behaviours of some commercial entities, the same principles may not apply equally to individuals' actions. In many intentional tort cases deterrence does not seem to play much of a role at all. For example, in Caplan v. Atas, the threat of monetary damages against the respondent did not seem to deter her behaviour.[28] The Court noted the defendant is "destitute", "owns no property" and "is an undischarged bankrupt," making her effectively "judgment proof".[28]

A one sided approach

If deterrence is the societal goal, why should it fall to plaintiffs to pursue it through private litigation, rather than a state regulator? Scott Hershovitz, while acknowledging the benefits of deterrence, notes that tort law is "far from the best available" method for achieving deterrence of harmful conduct, as compared to systems of government regulation.[29]

Ernest Weinrib criticizes instrumental theories for focusing on "each of the litigants independently," while ignoring "the moral underpinning for the relationship between the plaintiff and defendant".[30] On his view, the problem is not solved by simply conceiving of tort law as having dual goals: deterrence (defendant-focused) and compensation (plaintiff-focused). Weinrib states that compensation and deterrence are "mutually truncating", meaning that tort law only compensates victims when damages can deter conduct, and only can deter conduct when there is a victim to compensate. [31] Therefore, neither goal of compensation or deterrence can serve a "justificatory function in the tort context".[31]

Punishment

The theory that tort law is concerned primarily with punishing wrongdoers is less prominent today than it once was. The area of law most concerned punishment is criminal law (evident in the practice of incarceration and loss of liberty), although some elements of tort law have a punitive dimension.[32] An award of damages is a meaningful way in which defendants are held accountable for their actions, and in some jurisdictions (notably the United States) can be very substantial.[33] Punitive damages are explicitly awarded to "make an example of [the defendant] in order to deter others from committing the same tort".[34]

Punishment as an aim in tort law, can be understood in two forms: on one hand that punishment is "a device geared toward achievement of societal goals such as deterrence or retribution in the interests of society," and on the other that punishment is "rooted in ideas of interpersonal justice in that it promotes private interests by, for example, empowering the victim of a wrong to take her revenge against the tortfeasor."[33] In Vorvis v. Insurance Corp. of British Columbia, the Supreme Court of Canada set out the circumstances where a tortfeasor's conduct justifies punishment:

"... punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment."[35]

Scott Hershovitz has explored how tort law perhaps operates as a "substitute for revenge".[36] In most jurisdictions, the terms 'punitive' and 'vindictive' are used interchangeably to "denote extra-compensatory damages awarded for willful or wanton misconduct".[36] The term 'vindictive' might suggest that the damages serve "as a kind of revenge inflicted through a tort suit".[36] However, even when such damages aren't awarded and only compensatory damages are available, a tort suit still allows the plaintiff to inflict harm on the person who harmed them as all tort damages are punitive in the sense that they are "painful to pay".[37]

Critiques of punishment theories

Criminal law is a more effective means

Joel Levin argues that "the importance of punitive damages is easy to overstate".[38] First, tort law can be ineffective, as it is not within every victim's capacity to navigate "complicated legal proceedings" and hire a lawyer, to ultimately achieve desired punishment.[39] Additionally, the limited range of remedies available in tort law might not "send a very satisfying message" in cases of serious wrongdoing.[39] In such cases, the "fearsome consequences" imposed by the criminal law system might be more effective at punishing wrongdoers.

Antony Duff argues that if tort law were to assume a more punitive role, it would have to become "more like criminal law" by having a larger array of defences and the threat of incarceration.[40] However, unlike criminal law, tort law generally does not recognizes excuses and affords more limited defences for tortfeasors.[41] In addition, tort law's remedies are comparatively more restrained than under criminal law, where wrongdoers face significant consequences such as loss of liberty.

Judgment proof wrongdoers

A wrongdoer may also be judgment-proof, and therefore immune to the monetary consequences imposed by the tort system.[42] Paying an award of damages can in practice be avoided if the defendant has no tangible assets, as in Caplan v. Atas.[28] In addition to individuals like Atas, insurance coverage or vicarious may also mean that the wrongdoer isn't really bearing the full impact of their "punishment".[3]

Punishment for unintentional torts

Another challenge for the punishment theory is that not all torts constitute morally reprehensible behaviour that is worthy of punishment. It is often understandable why intentional wrongdoing such as battery should be punished. But other areas of tort liability, such as the tort of negligence, provide redress for accidents that although harmful may not have been particularly morally blameworthy.[3] The punishment theory of tort law also fails to account for the existence of strict liability torts, as it does not explain why someone should be punished if they are not 'at fault'.[43]


References

  1. ↑ Shmueli, Benjamin (2014). "Legal pluralism in tort law theory: balancing instrumental theories and corrective justice". University of Michigan Journal of Law Reform. 48: 750.
  2. ↑ Solum, Lawrence (2004). "The Internal Point of View". Legal Theory Lexicon.
  3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 Markesinis, Basil S. (17 June 2023). "Tort law". Encyclopaedia Britannica.
  4. ↑ Levin, Joel (2008). Tort Wars. Cambridge: Cambridge University Press. pp. 54–56.
  5. ↑ Livingstone v. Rawyards Coal Co (1880) 5 App Cas 25 at para 39.
  6. ↑ 6.0 6.1 6.2 6.3 Schwartz, Gary (1981). "Tort law and the economy in nineteenth-century America: A reinterpretation". The Yale Law Journal. 8: 1718. Cite error: Invalid <ref> tag; name ":6" defined multiple times with different content
  7. ↑ Goldberg, John CP, and Benjamin C. Zipursky (2020). Recognizing wrongs. Harvard University Press. pp. 74, 222.CS1 maint: multiple names: authors list (link)
  8. ↑ Morton J., Horwitz (1992). The Transformation of American Law,. New York: Oxford University Press.
  9. ↑ O'Connell,, Jeffrey (1987). "Tort Versus no-Fault: Compensation and Injury Prevention". Accident Analysis and Prevention. 19: 63.CS1 maint: extra punctuation (link)
  10. ↑ David McKnight and Paul Hinton, the Brattle Group (2022). "Tort Costs in America An Empirical Analysis of Costs and Compensation of the U.S. Tort System". U.S. Chamber of Commerce Institute for Legal Reform: 4.
  11. ↑ Geistfeld, Mark (2003). "Negliegence, Compensation, and the Coherence of Tort Law". The Georgetown law journal. 91: 585.
  12. ↑ Ursin, Edmund (2013). "Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability". San Diego Law Review. 50: 558.
  13. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.1.4).
  14. ↑ Caplan v. Atas [2021] ONSC 670 (§5.2.4).
  15. ↑ Caplan v. Atas [2021] ONSC 670 (§5.2.4) at para 96.
  16. ↑ Lindsay, Bethany (2023). "Want to sue your doctor? You'll be up against a powerful group with billions of dollars". RCI Radio.
  17. ↑ Markhoff, Abraham (October 1968). "Compensation Without Fault and the Keeton-O'Connell Plan: A Critique". St. John's Law Review. 43 (2): 188.
  18. ↑ Gibson, Elaine (2016). "Is it Time to Adopt a No-Fault Scheme to Compensate Injured Patients?". Ottawa Law Review. 47: 327.
  19. ↑ Schwartz, Gary (1997). "Mixed Theories of Tort Law: Affirming both Deterrence and Corrective Justice". Texas Law Review. 7: 103.
  20. ↑ Calabresi, Guido. The Cost of Accidents. Yale University Press. p. 68.
  21. ↑ Landes, William & Richard Posner (1987). The economic structure of tort law. Cambridge: Harvard University Press.
  22. ↑ Devlin, Richard (1991). Canadian Perspectives on Legal Theory. Toronto: Emond Montgomery Publications Ltd. p. 195.
  23. ↑ 23.0 23.1 Hill v. Church of Scientology of Toronto [1995] CanLII 59 (SCC) (§9.5.3) at para 196.
  24. ↑ Whiten v. Pilot Insurance Co., 2002 SCC 18 at para 120.
  25. ↑ Shuman, Daniel (1993). "The Psychology of Deterrence in Tort Law". University of Kansas Law Review. 42: 115.
  26. ↑ Sugarman, Stephen (1985). "Doing Away With Tort Law". California Law Review. 73: 558.
  27. ↑ Pérez, Lucy (2022). "Does ESG really matter-and why?". Mckinsey.
  28. ↑ 28.0 28.1 28.2 Caplan v. Atas [2021] ONSC 670 (§5.2.4) at para 93.
  29. ↑ Hershovitz, Scott (2014). "Tort as a Substitute for Revenge". In Oberdiek, John (ed.). Philosophical Foundations of the Law of Torts. Oxford University Press. pp. 88–89.
  30. ↑ Cooper-Stephenson, Ken & Elaine Gibson (1993). Tort Theory. North York: Captus University Publications. p. 8.
  31. ↑ 31.0 31.1 Weinrib, Ernest J. (1993). "Formalism and its Canadian Critics". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 9.
  32. ↑ Ellis, Dorsey (1982). "Fairness and Efficiency in the Law of Punitive Damages". Southern California Law Review. 1: 2.
  33. ↑ 33.0 33.1 Cappelletti, Marco (2019). "Comparative Reflections on Punishment in Tort Law" (PDF). Hart Publishing.
  34. ↑ Linden, Allen M., Lewis Klar, and Bruce P. Feldthusen. (1988). Canadian Tort Law: Cases, Notes & Materials. Toronto: LexisNexis. p. 54.CS1 maint: multiple names: authors list (link)
  35. ↑ Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC)at 1107.
  36. ↑ 36.0 36.1 36.2 Hershovitz, Scott (2014). "Tort as a Substitute for Revenge" in Philosophical Foundations of the Law of Torts. Oxford: Oxford University Press.
  37. ↑ Hershovitz, Scott (2014). "Tort as a Substitute for Revenge". In Oberdiek, John (ed.). Philosophical Foundations of the Law of Torts. Oxford University Press. pp. 87–88.
  38. ↑ Levin, Joel (2008). Tort Wars. Cambridge: Cambridge University Press. p. 42.
  39. ↑ 39.0 39.1 Hershovitz, Scott (2014). "Tort as a Substitute for Revenge". In Oberdiek, John (ed.). Philosophical Foundations of the Law of Torts. Oxford University Press. p. 98.
  40. ↑ https://link.springer.com/content/pdf/10.1007/s10982-015-9230-4.pdf
  41. ↑ Goldberg, John C.P. (June 2015). "Inexcusable Wrongs". California Law Review. 103 (3): 477 – via SSRN. More than one of |pages= and |page= specified (help)
  42. ↑ Hershovitz, Scott (2014). "Tort as a Substitute for Revenge". In Oberdiek, John (ed.). Philosophical Foundations of the Law of Torts. Oxford University Press. p. 99.
  43. ↑ Jaffey, Peter (2015). "Book Review: Philosophical Foundations of the Law of Torts" (PDF). Law and Philosophy. 34: 469–475 – via Springer.


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