Criminal and Tortious Liability of Corporations

• Author: Christopher C. Nicholls
• Pages: 215-229

215

CHAPTER EIGHT

Criminal and Tortious

Liability of Corporations

INTRODUCTION

A woman is badly burned when she is splashed by scalding hot coffee served at a well-

known fast-food restaurant. She successfully sues the company for damages.

A certain brand of automobile is found to roll over rather too easily under certain driving

conditions. Injured drivers and passengers launch lawsuits against the manufacturer.

A famous national retailer falsely advertises sale prices for some of its merchandise.

The company is charged with an offence, tried, and sentenced to pay a large fine.

We have become well accustomed to reading or hearing media stories about legal

actions such as these in which large, often well-known corporations are found liable for

committing torts or crimes. So commonplace have such stories become, that it is difficult

to imagine that there might have been a time when the law struggled with the question of

whether it would ever be possible for an artificial legal person such as a corporation to be

said to have committed a tort or a crime.

But in fact, the law did sometimes struggle with these issues. The central problem

confronted by early jurists was one of trying to apply rules designed to punish and correct

human behaviour to the actions of the distinctly non-human corporation. The challenge is

nicely articulated in a quotation usually attributed to Baron Thurlow, which tends to

appear with great regularity in commentaries on the subject of corporate criminal respon-

sibility. A corporation, he is supposed to have observed, can have no conscience because

“it has no soul to be damned, and no body to be kicked.”1

1The provenance of this well-worn statement is a little shadowy. Many of the modern authors who have

repeated the quotation either do so without citing any authority, or cite as their source another modern,

secondary source. (See, e.g., Joseph Groia and Kellie Seaman, “Enron, Fear and Loathing on Bay

Street,” in Anita Anand and William Flanagan, eds., The Corporation in the 21st Century: Papers

Presented at the 9th Queen’s Annual Business Law Symposium 2002 (Kingston, ON: Queen’s University,

2003) 241, at 257, citing as their source for the Thurlow quotation J.C. Coffee Jr., “No Soul To Damn,

No Body To Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment” (1981), 79

Michigan Law Review 386, at 386. But Coffee himself had cited as his source for this quotation, a 1977

publication, Public Policy and the Corporation by M. King. The quotation does indeed appear on page 1

of King’s book, but the author offers no source for the quotation (London: Chapman and Hall, 1977),

at 1.) Lord Denning invoked a version of the maxim in British Steel Corp. v. Granada Television, [1981]

1 All ER 417, at 439 (CA), with no mention of Baron Thurlow. Sedgwick J of the Ontario Superior Court

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