One unfortunate consequence of the technological and social progress that Canada enjoyed throughout the twentieth century was a rising tide of personal accident losses. This increase in accident rates led to a much greater emphasis on personal safety and the need for effective accident prevention mechanisms. Both negligence law and statutory regulatory schemes play complementary roles in this important task.
Accident prevention is a legitimate and important aspiration of negligence law. The deterrent power of negligence law, however, probably diminished throughout the course of the twentieth century. The widespread use of liability insurance, the vicarious liability of employers for the wrongdoing of employees, the haphazard application of the tort system to dangerous conduct, and the failure to promote the deterrent power of negligence law by tying damages to the degree of fault or broadening the use of punitive damages, all had an adverse impact on the power of tort law to prevent accidents. Nevertheless, negligence law probably has some residual power to affect the behaviour of certain classes of defendants such as the manufacturers of products who make planned cost-benefit decisions, professionals who may suffer adverse consequences from publicity surrounding successful litigation, uninsured defendants, and defendants whose legal liability may affect the continuation or price of liability insurance coverage.
The erratic and indirect deterrent influence of negligence liability has, however, been supplemented and strengthened by a massive increase in legislative safety regulation and controls. These direct legislative controls promote the safety of citizens in respect of the manufacture and distribution of products and services, the workplace, the environment, transportation, health care, public buildings, public health, and virtually every other societal activity that carries a significant risk of damage to person or property. This legislation is largely independent of the tort system. It normally provides for the adoption of specific safety measures and describes a range of penalties for the failure to
comply with them. These legislative instruments are administered by governmental officials, and a scheme of inspection, informal and formal enforcement procedures, and sanctions is normally established. These regulatory schemes have further diminished the importance of negligence as a deterrent device and have led to a heavy reliance on governmental controls to protect the health and safety of citizens. Although the tort of negligence and statutory regulatory schemes are discrete legal phenomena, there are situations where they intersect. Of particular importance are those situations where a person has been injured by a breach of a statutory duty arising from conduct that may or may not be a breach of the common law standard of reasonable care. There has been much debate about the relationship between statutory duties and the tort of negligence in these situations.
There are good reasons to integrate the statutory breach into negligence law in some way. It allows courts to support and reinforce the accident prevention initiatives of government, it offers the courts concrete standards of conduct which have often been set with the assistance of expert advice, policy debate, and the input of those involved in the relevant activities, and it permits courts to add the deterrent clout of tort law to enhance the effectiveness of the legislation.
Most of the debate has, therefore, focused on the legal analysis best suited to accommodate breach of statute within negligence law. Two...