Date: Wed, 23 Jul 2003 14:17:59 -0400

From: Jason Neyers

Subject: New PC decision on Libel Awards

Dear Colleagues,

Harold Luntz wrote:

If the full passages at para 51 ff referred to by Jason are 'armchair empiricism', I'm all for it. Can one seriously quarrel with para 51 itself?

It depends by what one means by quarrelling with the paragraph. Yes it is probably true (I don't know for sure) that those who suffered their injuries at the hands of a tortfeasor as a whole are "better off" than those who suffered their injuries through accident. It is also probably true that some (though not all) of us would hope that our societies were ones who treated those suffering the same as matter of the support they received from the government (i.e. as a matter of distributive justice based upon suffering). In fact, I also suppose that many of us would vote for a party that promised to repeal tort law (which is based on principles of fault and compensation) and replace it with some form of injury insurance that would treat all suffers the same. But the point is that we (Can, Aus, Jam, Eng etc) have not chosen to do so but rather to keep our current mix of tort law and social programs.

Given that this is the political choice we have made, I think that one can quarrel with the inclusion of such a paragraph in a judgment that purports to being about doing justice as between the joined parties. I would think that the judges job (what they swore to do) was to figure out what tort law demands, with its emphasis on fault and its search for compensation, rather than to figure out whether or not the answer that tort law demands would be considered fair to those who were not injured through the fault of another, what I elect politicians to do.

When looked at from this perspective, the entitlements that I get from the state for no fault suffering have no real bearing as to whether or not $X in general damages is in fact compensatory to the wrong that was committed against me. Nor does the issue of where the general damages come for (the tortfeasors pocket, private insurance, or public insurance) tell us whether or not they were truly compensatory and therefore correct as a matter of law. As Lord Goff noted in White dealing with a similar fairness claim by Lord Hoffmann:

I sense that the underlying concern, which has prompted a desire to introduce this new control mechanism, is that it is thought that, without it, the policemen who are plaintiffs in the present case would be "better off" than the relatives in the Alcock case who failed in their claims, and that such a result would be undesirable. To this, there are at least three answers. ... Third, however, it is in any event misleading to think in terms of one class of plaintiffs being "better off" than another. Tort liability is concerned not only with compensating plaintiffs, but with awarding such compensation against a defendant who is responsible in law for the plaintiff's injury. It may well be that one plaintiff will succeed on the basis that he can establish such responsibility, whereas another plaintiff who has suffered the same injury will not succeed because he is unable to do so. In such a case, the first plaintiff will be "better off" than the second, but it does not follow that the result is unjust or that an artificial barrier should be erected to prevent those in the position of the first plaintiff from succeeding in their claims. The true requirement is that the claim of each plaintiff should be judged by reference to the same legal principles.

Sincerely,

Jason

Harold Luntz wrote:

If the full passages at para 51 ff referred to by Jason are 'armchair empiricism', I'm all for it. Can one seriously quarrel with para 51 itself?

Once it is appreciated that the awards are not paid by individual defendants but by society as a whole or large sections of society, there are also considerations of equity between victims of personal injury which influence the level of general damages. Compensation, both for financial loss and general damages, goes only to those who can prove negligence and causation. Those unable to do so are left to social security: no general damages and meagre compensation for loss of earnings. The unfairness might be more readily understandable if the successful tort plaintiffs recovered their damages from the defendants themselves but makes less sense when both social security and negligence damages come out of public funds. So any increase in general damages for personal injury awarded by the courts only widens the gap between those victims who can sue and those who cannot.

Harold Luntz.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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