November 7, 2007
In my post earlier this year about Childs v Desormeaux, [2006] 1 SCR 643, a decision by the Supreme Court of Canada ("SCC") which denied social host liability, I wrote that in our current legal system, access to compensation for those injured by the negligence of others is often based on the chance that the wrongdoer has insurance coverage. When the wrongdoer is not covered by insurance, plaintiff lawyers try to find some other avenue to access insurance funds to adequately compensate the plaintiffs.
Two recent decisions by the SCC, Citadel General Assurance Co v Vytlingam, [2007] 3 SCR 373 [Citadel] and Lumbermens Mutual Casualty Co v Herbison, [2007] 3 SCR 393 [Lumbermens], provide further examples of situations where the injured plaintiff attempts to fit a square peg into a round hole in order to obtain compensation.
In Citadel, the defendants, high on drugs and alcohol, had the clever idea to use their vehicle to transport boulders to a highway overpass and drop them onto cars passing below. One boulder struck a car and caused catastrphic injuries to the plaintiff. In Lumbermens, the defendant was out on a hunting trip, driving to his hunting stand before sunrise when he saw a flash of white. He got out of his vehicle and shot at what he thought was a deer, hitting another member of his hunting party.
In both of these situations, it is an understatement to say that the defendants were negligent; the words I would use is "downright stupid." However, the key issue in both decisions was whether the victim's injuries arose "directly or indirectly from the use or operation" of an automobile. In both cases, the SCC held that the injuries were not from the use of an automobile and thus, the plaintiffs could not recover damages for their injuries from the auto insurance policies.
It is difficult to argue with the SCC's literal interpretation of this language. These injuries were not cause by the use of cars, only by the stupidity of the defendants after they got out of them.
However, it is also difficult to see this as a fair result. Why does the victim's right to compensation depend so much on the exact circumstances surrounding the accident? Why does the law only require insurance (meaning compensation) for car accidents? What about other dangerous situations, not common enough to warrant widespread insurance?
These two cases are another indictment of our current tort system. While our current model attempts to ensure that there is some compensation for injuries that occur in particular situations, such as work-related accidents, automobile accidents, and victims of crimes, the result of such a patchwork scheme is that there are too many people left uncompensated, left to fend for themselves after a tragic accident. Or they become caught in lengthy legal battles between insurance companies trying to pass the responsibility on to each other.
Perhaps, we should start looking harder at a more comprehensive accident insurance scheme, such as the state-run no-fault accident compensation system in New Zealand. Of course, with our society becoming increasingly more American and hence more litigious, it may be difficult for people to let go of their right to sue those who have harmed them in exchange for faster, more efficient compensation and rehabilitation.
3 Comments
I don't think these cases are "an indictment" of our tort system. That suggests blameworthiness on the part of the system. They indicate the limits of the tort system, which is designed to provide a remedy for harm caused by someone's fault. When there is no fault, tort does not provide a remedy. Where the person at fault has no assets, then tort does not provide a remedy.
This does not mean that society should not provide a more comprehensive remedy. We (society!) have decided that workers injured on the job should be compensated without proving fault, and (in Ontario and some other places) that people driving automobiles should be compensated for injuries short of catastrophic ones without proving fault.
Rob Pritchard did a study for Ontario in 1990 on compensation for harm without fault. Maybe that should be resurrected.
BUT it can be expensive, so the economics could be difficult. Consider the cost of no-fault compensation to people infected with Hepatitis-C - and the difficulties of compensating people who may show no current signs of harm, and some of whom may never experience the harm. The tort system has similar challenges in estimating future harm, of course.
The Supreme Court got these cases right. The auto insurance companies did not sell their products at a price large enough to cover any harm caused by people who happen to drive, though the court (also rightly) cut back the scope of the argument the insurers tried to make on that point.
The question of whether and how to compensate people when there is not a solvent person at fault for the harm they suffer is a legitimate one, but it cannot be answered in every case through the tort system.
In what ways is our society becoming more American? Does an increase in litigation really mean we are more American?
John:
Perhaps my use of the word "indictment" is too harsh. Clearly, the problem is not caused by the tort system. However, it is also clear that our current system is inadequate in situations where the wrongdoer lacks assets or insurance and I would argue that our society should be held accountable for failing to reform the system to properly address this glaring problem. If this cannot be achieved through the tort system, perhaps we need to look outside of the system for an answer.
Corey:
Thank you for taking me to task for my offhand comment about becoming more American. I do think there is a general impression that America is a more litigious society than Canada but that we are slowly moving in that direction. Of course, I don't have any qualitative evidence to back me up on these points. I guess my main point was that the "right to sue" has become increasingly ingrained in our Canadian ethos and that it would be difficult to let go of this right.