E. Personal Injury, Tort Law, and Other Compensatory Vehicles

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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It has been noted that the law of torts deals with a wide range of damage and losses. It is, however, personal injury and fatality claims that have presented the most significant challenge to the Canadian law of torts. The twentieth century witnessed a rising tide of accidental44personal injury and death and an associated public demand for security from the personal and economic consequences of it. The law of torts responded to this challenge. The concept of fault-based liability was expanded to cover the widest range of societal activities, and virtually every citizen is subject to a duty of care to prevent foreseeable injuries to others. Moreover, in the course of the twentieth century, the principles of tort law were liberalized to facilitate claims and expand the range and quantum of personal injury compensation. Tort law was stretched to its conceptual limits by a humane and sympathetic judiciary to provide as generous a protection from the consequences of injury and death as is possible in a fault-based system. This process was encouraged and facilitated by the prevalence of liability insurance and by an acute judicial awareness of the power of liability insurance to spread accident costs throughout society.

In spite of these efforts, tort law has proved incapable of providing the degree of security from personal injury losses that the public has demanded. This is largely due to the inherent conceptual limitations of fault as a compensatory mechanism. A fault system can never provide

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universal coverage and compensation for all accident victims. It is designed to compensate only those who have been injured as a result of wrongdoing. Those who suffer personal injury as a result of a defend-ant’s innocent conduct, their own carelessness, or bad luck are beyond the scope of conventional tort remedies. In addition to the inherent limitations of tort coverage, there has been criticism about the manner in which tort law processes personal injury claims. As a compensatory mechanism, tort litigation is slow, expensive, and unpredictable and some actions fail because of procedural obstacles, a lack of evidence of the defendant’s fault, a lack of resources, or a lack of will to embark on the difficult adversarial process of civil litigation.

The limitations and shortcomings of the tort process have led to two contrasting developments. First, there were a number of governmental initiatives throughout the course of the twentieth century creating alternative or supplementary compensatory vehicles designed to provide compensation to a broader range of accident victims. These initiatives were prompted by public demand for broader and improved protection from random accident losses and by ideas of collective security which lie at the heart of the social welfare system. Second, the incomplete coverage of both tort and social welfare systems has led to a much greater use of private sector first-party insurance instruments45

tailored to individual circumstances for the protection of personal financial security. The limitations of the social welfare state and the uneven scope of tort liability have spawned a trend towards greater personal responsibility for the security of one’s self and family from accidental injury and death. A brief description of these two developments provides some perspective on the place and...

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