Tort law holds the powerful accountable

Everybody hates tort law... unless they’re the ones seeking compensation for a wrong committed against them.

Along with criminal law, tort law is a cornerstone of democracy. It’s the only thing separating us from vigilante justice and people going to collect eyes and teeth when someone loses an eye in a car accident or a tooth in a fight outside a bar. Under tort law, injured parties hire a lawyer and seek compensation for their wounds, in whatever form they may occur, from those who may have caused the suffering. The courts are called upon to serve as independent arbiters of this form of justice, much like Solomon was to decide who was the true mother of a newborn.

Tort law, when it works, is the great equalizer in democracy because it levels the playing field between citizens and government and huge corporations. It is often the only means in which disadvantaged people can hold powerful people and institutions accountable for the harm they’ve caused, whether it’s intentional or not. At its most effective, tort law gives a voice to the voiceless.

Such as a young man who grew up in a series of foster homes and youth care facilities for much of his life and was zapped with a Taser by RCMP officers at a Tabor Lake group home when he was 11.

In 2014, after an investigation by the provincial representative for children and youth found the youth’s suffering could have been prevented with proper care, the public guardian and trustee sued the Ministry of Children and Family Development for negligence and failing to meet its duty.

Tort law encourages the parties to come together to reach an out-of-court settlement and avoid the uncertainty of a judge deciding the final outcome of the case.

In the case of the boy under government care, the settlement involves a $3 million fund to provide continuous support for the boy once he becomes an adult next year.

It seems like a lot of money but settlements like this are often reached after both sides review the legal precedents in similar cases in B.C. and elsewhere in Canada. Governments and corporations are always ordered to pay more as a means of encouraging them to not repeat the same injustice to others, rather than being able to brush off the incident as simply a cost of doing business.

Everybody still talks about the infamous McDonald’s hot coffee case in the U.S. during the 1990s, where a woman was awarded $2.8 million by a jury after suing the fast-food giant when she spilled her takeout coffee in her lap. As the documentary Hot Coffee revealed, the jury only awarded 79-year-old Stella Liebeck $160,000 for medical expenses, a reasonable amount for eight days in a U.S. hospital to treat third-degree burns on her thighs. The other $2.7 million was damages against McDonald’s. The jury didn’t pull that number out of the air; it was the average revenue McDonald’s saw from one day of coffee sales in the United States, a financial slap on the wrist for a multinational corporation.

While a trial judge eventually reduced the settlement to $640,000 and the case was openly mocked as an example of out-of-control courts exploited by people looking to make a quick buck, the settlement had its intended effect. McDonald’s fixed its hot coffee problem to avoid future lawsuits.

In other words, the tort law worked. Liebeck was compensated for her suffering (Jerry Seinfeld and David Letterman never mentioned her third-degree burns and the skin grafts in their jokes, which is why comedians can’t always be trusted to provide the news) and McDonald’s changed its behaviour to protect future customers.

It doesn’t always work out for the individual, as Irvin Leroux of Prince George found out in his 19-year battle with the Canada Revenue Agency, that ended in 2016 when Leroux was ordered to pay the CRA $10. He had been suing for $4 million. While the judge found that the CRA breached its duties, she also found Leroux failed to show how the CRA’s negligence led to the loss of his home and business.

The NDP government is introducing limits on the settlements the victims of automobile accidents could receive from ICBC. Currently, those victims sue ICBC and the matters are settled under tort law, often years after the incident. Rather than address the problem responsibly, by either raising vehicle insurance premiums, especially for drivers with bad records, or getting out of the automobile insurance business altogether, the NDP is going after the tort law in place to give citizens a legal outlet when governments and corporations cause harm.

So much for Premier John Horgan’s pledge to look out for the little guy and making big business pay their fair share.

Neil Godbout is managing editor of The Prince George Citizen.