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The Adequacy of the Law of Torts*

Published online by Cambridge University Press:  16 January 2009

Cecil A. Wright
Cecil A. Wright
Affiliation:
q.c. ll.d., Dean of the Faculty of Law of the University of Toronto.
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Extract

Any attempt to evaluate the adequacy or inadequacy of tort law in general is bound to fail unless the scope of inquiry is severely limited. All attempts to find some unifying principle have failed. In light of the diverse interests involved which may be political, domestic or economic, and the purposes to be achieved, which may range from the quasi-criminal to determination of title to property, it would be a miracle of intellectual abstraction if it were otherwise.

To confine inquiry to “accidental” injuries, i.e., those arising as a by-product of some lawful activity carried on for reasons other than the invasion of a plaintiff's interest, is helpful but not satis-factory. For example, “accidental” injury to a person's privacy, honour or reputation could fall in this category. While issues of “strict liability” or liability for “fault” permeate this field and have, in England and Canada, been developed by the courts in favour of the former, public interest in freedom to disseminate news and the encouragement of freedom of speech is an important factor here which makes it impossible to compare other branches of the law where there is no counterpart. Here too legislation is playing an important role. By statute in England attempts have been made to mitigate some of the harsher features of strict liability by eliminating damages and substituting an “offer of amends” for accidental and non-negligent defamation. While legislation in Canada has been widespread, particularly with regard to the total or partial abolition of the distinction between libel and slander, such legislation has nowhere changed the strict liability of the common law.

Type
Research Article
Information
The Cambridge Law Journal , Volume 19 , Issue 1 , April 1961 , pp. 44 - 61
Copyright
Copyright © Cambridge Law Journal and Contributors 1961

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References

1 The Defamation Act. 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 66).

2 See the Uniform Defamation Act, approved in 1944 by the Conference of Commissioners on Uniformity of Legislation in Canada and adopted in Alberta, R.S.A. 1955, c. 78; Manitoba, E.S.M. 1954, c. 60; New Brunswick (in part) R.S.N.B. 1952, c. 58; Prince Edward Island, R.S.P.E.I. 1951, c. 41. See also the Ontario Libel and Slander Act, 1958 (Ont.), c. 51.

3 See Smith v. Rae (1919)Google Scholar 46 O.L.B. 518; Hodgins v. Banting (1906) 12 O.L.B. 117.

4 “The doctrine of res ipsa loquitur no matter how ingeniously put, has no application in malpractice cases”: Clark v. Wansborough [1940]Google Scholar O.W.N., 67, 72. Compare now Nesbitt v. Holt [1953]Google Scholar S.C.B. 143; [1953] 1 D.L.R. 671, affirming [1951] O.R. 601; [1951] 4 D.L.R. 478.

5 [1951] 2 K.B. 164.

6 [1932] A.C. 562.

7 Searle v. Wallbank [1947]Google Scholar A.C. 341; [1947] 1 All E.R. 12.

8 Fleming v. Atkinson [1959]Google Scholar S.C.R. 513; 18 D.L.R. (2d) 81.

9 See Otto v. Bolton [1936]Google Scholar 2 K.B. 46; [1936] 1 All E.R. 960.

10 See, e.g., Johnson v. Summers [1939]Google Scholar 2 D.L.R. 665 (Man.).

11 Wringe v. Cohen [1940]Google Scholar 1 K.B. 229; [1939] 4 All E.R. 241. See also Mint v. Good [1951] 1 K.B. 517; [1950] 2 All E.K. 1159

12 See, e.g., Cowan v. Harrington [1938]Google Scholar 3 D.L.R. 271 (N.B.).

13 Caminer v. Northern and London Investment Trust Ltd. [1951]Google Scholar A.C. 88; [1950] 2 All E.R. 486.

14 Searle v. Wallbank, supra, note 7.

15 Wringe v. Cohen, supra, note 12.

16 See, e.g., Jacobs v. L.C.C. [1950]Google Scholar A.C. 361, recognising the necessity of “common interest” as the basis of the invitor-invitee relationship; London Graving Dock v. Horton [1951]Google Scholar A.C. 737, limiting an invitor's duty to “unknown” dangers.

17 The Ontario Contributory Negligence Act, 1924Google Scholar (Ont.), c. 32.

18 Car & General Insce. Corp. Ltd. v. Seymour and Maloney [1956]Google Scholar S.C.R. 322; 2 D.L.R. (2d) 369.

19 A. C. Billings & Sons, Ltd. v. Riden [1958]Google Scholar A.C. 240; [1957] 3 All E.R. 1; Whitehead v. North Vancouver [1939]Google Scholar 3 D.L.E,. 83 (B.C.).

20 (1842) 10 M. & W. 546.

21 Car & General Insce. Corp. Ltd. v. Seymour and Maloney, supra, note 18.

22 Miller v. Decker [1957]Google Scholar S.C.R. 624; 9 D.L.R. (2d) 1.

23 Compare the following two judgments of the Supreme Court of Canada: McKee v. Malenfant [1954]Google Scholar S.C.R. 651; [1954] 4 D.L.R. 785; Bruce v. McIntyre [1955]Google Scholar S.C.R. 251; [1955] 1 D.L.R. 785. And see MacIntyre, “Last Clear Chance After Thirty Years Under the Apportionment Statutes” (1955) 33 Can. Bar Eev. 257.

24 For an excellent survey, see Green, , Traffic Victims (1958: Northwestern University Press).Google Scholar

25 See Harper and James, The Law of Torts (1956: Little, Brown & Co.). Chap. 13.

26 Ehrenzweig, Negligence Without Fault (1951).

27 See now the Workmen's Compensation Act, R.S.O., 1950, c. 430. There are similar Acts in the other Provinces.

28 L.R. 3 H.L. 330.

29 [1947] A.O. 156; [1946] 2 All E.R. 471.

30 See Aldridge v. Van Patter [1952]Google Scholar O.K. 595; [1952] 4 D.L.R. 93.

31 See, e.g., Bohlen, “Aviation under Common Law” (1934) 48 Harv.L.Rev. 216.

32 See Fletcher Moulton L.J. in Wing v. London General Omnibus Co. [1909]Google Scholar 2 K.B. 652, who spoke of cases under Rylands v. Fletcher as being in reality cases of nuisance which he denned as “excessive use of some private right whereby a person exposes his neighbour's property or person to danger.”

33 See now the Civil Aviation Act, 1949 (12 & 13 Geo. 6, c. 67), s. 40, re-enacting s. 9 of the Air Navigation Act, 1920.

34 Nova Mink Ltd. v. T.C.A. [1951]Google Scholar 2 D.L.R. 241 (N.S.).

35 Compare, for example, the modern cases dealing with extension of a hospital's liability for the conduct of professional personnel: Gold v. Essex C. C. [1942]Google Scholar 2 K.B. 293; Cassidy v. Ministry of Health [1951]Google Scholar 2 K.B. 343.

36 [1957] A.C. 555.

37 See the Highway Traffic Act, R.S.O. 1950, c. 167, Part XIV.

38 See, e.g., in Ontario, the Insurance Act, R.S.O., 1950, c. 183, s. 214.

39 The Automobile Accident Insurance Act, 1946 (Sask.), c. 31. And see A Report on the Study of Compensation for Victims of Automobile Accidents, prepared by a Special Committee of the Saskatchewan Government (1946).

40 See Special Lectures of the Law Society of Upper Canada, 1959, Jury Trials.

41 See, e.g., in Ontario, the Highway Traffic Act, R.S.O., 1950, c. 167, s. 51.

42 See Ross v. Grey Coach Lines Ltd. (1929)Google Scholar 64 O.L.R. 178; [1929] 3 D.L.R. 841; Newell v. Acme Dairy Ltd. [1939]Google Scholar O.R. 36; [1939] 1 D.L.R. 512; Beach v. Healey [1943]Google Scholar S.C.R. 272; [1943] 2 D.L.R. 665.

43 See Koebel v. Rive [1958]Google Scholar O.R. 448.

44 See Bray v. Palmer [1953]Google Scholar 2 All E.R. 1449; Baker v. Market Harborough, etc. Society [1953]Google Scholar 1 W.L.B. 1472.

45 See Leaman v. Rea [1954]Google Scholar 4 D.L.R. 423 (N.B.).

46 See Wotta v. Haliburton Oil Well Cementing Co. Ltd. [1955]Google Scholar S.C.R. 377; [1955] 2 D.L.R. 785; Vaughan v. Isenor [1955] 2 D.L.R. 403 (N.S.).Google Scholar

47 Particularly Moore v. R. Fox & Sons [1956]Google Scholar 1 Q.B. 596; [1956] 1 All E.R. 182.

48 Compare Zeppa v. Coca-Cola, Ltd. [1955]Google Scholar O.R. 855; [1955] 5 D.L.R. 187.

49 See, in Ontario, the Highway Traffic Act, R.S.O., 1950, c. 167, s. 50; in British Columbia, the Motor Vehicle Act, R.S.B.C. 1948, c. 227, s. 81 (1); in Nova Scotia, the Motor Vehicle Act, R.S.N.S. 1954, c. 184, s. 201 (3) (4).

50 See Bourhill v. Young [1943]Google Scholar A.C. 92; [1942] 2 All E.R. 396; Glasgow Corporation v. Muir [1943]Google Scholar A.C. 449; [1943] 2 All E.R. 44; King v. Phillips [1953] 1 Q.B. 429Google Scholar; [1953] 1 All E.R. 617.

51 [1921] 3 K.B. 560.

52 Palsgraf v. Long Island Railroad Co. (1928)Google Scholar 248 N.Y. 339; 162 N.R. 99.

53 King v. Phillips, supra, note 50.

54 See the literature collected and discussed in Harper and James, The Law of Torts (1956) s. 11. 4.

55 The effect of mental incapacity or insanity on tortious liability is still in the doubtful category. See Morriss v. Marsden [1952]Google Scholar 1 All E.R. 925 and compare Buckley v. Smith Transport Ltd. [1946]Google Scholar O.R. 798. In the latter case a defendant employer was exonerated from liability for damages caused by the “negligent” act of his servant, since the servant could not be held at fault because of his insanity. Even if the servant be free of liability, why exonerate the employer for an act which, performed in the course of defendant's business, created an unreasonable risk of harm to plaintiff?

56 Cohen v. McCord [1944]Google Scholar O.R. 568; [1944] 4 D.L.R. 753.

57 Usually by requiring a “guest” passenger to prove “gross” negligence.

58 The Highway Traffic Act, R.S.O., 1950, c. 167, s. 50 (2); New Brunswick had originally abolished all liability, see the Motor Vehicle Act, 1934 (N.B.) c. 20, s. 52 (1), but in 1955 restored liability for gross negligence. See the Motor Vehicle Act, 1955 (N.B.) c. 13, s. 242.

59 See, e.g., in Ontario, the Negligence Act, R.S.O. 1950, c. 252, s. 2 (2). The Ontario section has been followed in other provinces adapted to the situation where the owner is only liable for gross negligence.

60 In jurisdictions requiring “gross” negligence to be established in order to bar a guest's recovery, the effect of such legislation would impute the “ordinary” negligence of a driver to a guest and thus cut down his recovery against a second negligent driver. If the guest's driver were guilty of “gross” negligence, there is no imputation of his fault to the guest. In such a case the guest could conceivably recover 100 per cent. from a second negligent driver who might not, if the “host” driver were insolvent or uninsured, have any effective recourse over. To allow the possibility of full recovery against a second driver simply because one's host driver was “grossly” negligent, and to deny it because the host is negligent but not “grossly” so is, to say the least, a strangely weird result. The liability of the second driver is minimal when the host driver is slightly negligent. It may reach its maximum when the host driver's conduct approaches the “wilful” or “wanton.”

61 See the Ontario Negligence Act, op. cit., s. 2 (3).

62 See Young and Young v. Otto [1948]Google Scholar 1 D.L.R. 285 (Alta.).

63 See the statutory illustrations cited above and see MacIntyre, “The Rationale of Imputed Negligence” (1944) 5 U. of Tor.L.J. 368.

64 Mallett v. Dunn [1949]Google Scholar 2 K.B. 180.

65 See the Ontario cases, taking this view, considered and discussed, but not followed, in Macdonald v. McNeil [1953]Google Scholar 1 D.L.R. 755 (N.S.). The Nova Scotia court followed Mallett v. Dunn, supra, note 64.

66 See supra, note 39.