The Role of Fault and Policy in Negligence Law


  • Lewis N. Klar



The article describes how the developments of Canadian negligence law have extended it beyond its conceptual limits. The author discusses how the courts have gradually shifted the purposes of the negligence action towards achieving loss distribution by liability insurance, compensating the injured and disabled, deterring tortious conduct, and other public and social policy goals, which he suggests should instead merely remain the consequences of the tort action, and not its primary purposes. Instead, suggests the author, the courts have increasingly failed to recognize negligence law's traditional purposes of apportioning moral blame, sanctioning tortious conduct, and correcting wrongs. Absent its fundamental premise of fault, the author maintains that negligence law is merely an inefficient and expensive way to provide for the needs of accident victims, which could be better and more efficiently dealt with by legislative intervention. Further, the author submits that as tort law becomes seen more as a means to compensate, deter, punish and educate, and less as a vehicle for corrective justice, the elements of the negligence action will lose their importance. Instead, he suggests that the judiciary must re-focus tort law as a system of fault-based corrective justice, supplemented by programs designed to efficiently achieve compensation, punishment, deterrence, accident prevention, and other public policy goals. In discussing these issues, the author provides an extensive review of the leading and relevant cases and authorities in this area.