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Date:
Wed, 8 Nov 2006 13:34:27
From:
Jason Neyers
Subject:
Punitive damages for negligence
In
light of all the conceptual problems that get thrown up in even
a rather simple case of punitive damages, especially in light of
their purported justifications, I just can't help wondering why
the courts continually insist on maintaining them.
I
was intrigued by Robert's apparent suggestion that punitive damages
are okay and that the difficulty comes from not really understanding
their true nature. Maybe he can enlighten me?
Cheers,
-----
Original Message -----
From: David Cheifetz
Date: Wednesday, November 8, 2006 8:22 am
Subject: RE: ODG: RE: punitive damages for negligence
There
are a host of items it seems the majority didn't consider.
For
example, in Ontario, throughout Canada, and I'm going to assume
in many jurisdictions elsewhere, owners of vehicles have statutory
vicarious liability for damages awarded against the driver of
the vehicle. In Canada, the requirement is that the driver had
possession with the owner's consent.
Property
and civil rights (so punitive damages entitlement, at all) is
a provincial matter. Assuming the province allows punitive damages
at all (an issue which may invoke Charter arguments if other provinces
don't) will the owner be liable for the punitive damages portion
of the award, if the owner's only basis for liability is vicarious?
(The blameworthiness requirement).
Also,
if they're not both liable or they are but there is no insurance
for that portion of the award, that will put the owner and driver
(where they are different people) at odds. The vicariously liable
owner probably has a right to indemnity from the driver. That
conflict might require separate counsel. It certainly will if
the owner is looking for indemnity from the driver.
Ah,
well: more work for defence counsel. I suppose I shouldn't complain.
--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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