[1] See Postema, G., "Introduction", Philosophy of tort Law (Cambridge University Press, 2001) for a description of the major theories that are currently being articulated in the area of tort law theory.
[2] Weinreb, "Formalism, Morality, and Corrective Justice", in Ken Cooper-Stephenson, ed., Tort Theory, (North York, Ontario: Captus University Publications, 1993), at 10.
[3] Aristotle, Nicomachean Ethics V, trans. Terence Irwin, (Indianopolis, Indiana: Hacklett Publishing, 1985) at para 1130b2 [hereinafter "Aristotle, Nicomachean Ethics"].
[4] Ibid. The Greek term "to ison" can mean either equality or fairness. See Aristotle, Nicomachean Ethics, trans. Terence Irwin, at 124.
[5] Ibid. at para. 1131a29-1131b12.
[6] Ibid. at para. 1132b18-20.
[7] Aristotle likened the role of the judge in corrective justice to a geometer who re-establishes the mid-point of a line that has been split into two unequal segments, by attaching to the smaller segments the portion by which the larger segment exceeds the half. See Aristotle, Nicomachean Ethics at para. 1132a21-32.
[8] Ernest Weinreb, "Corrective Justice" (1992) 77 Iowa L. Rev. 403 at 415.
[9] The corrective justice philosophy, as applied to tort law, still has strong supporters in the United States. See, for example, C.P. Wells, "Tort law as Corrective Justice: A Pragmatic Justification for Jury Adjudication" (1980) 88 Mich. L. Rev. 2348.
[10] Fleming, "Tort or Compensation", The Law of Torts, 2nd ed. (Oxford: Clarendon Press, 1985), at 172.
[11] Ibid.
[12] Feldthusen, "If this is Torts, Negligence Must be Dead", in Ken Cooper-Stephenson, ed., Tort Theory, (North York, Ontario: Captus University Publications, 1993), at 407.
[13] Ibid.
[14] Englard, "Alternative Compensation Systems", The Philosophy of Tort Law, (Brookfield, Vermont: Darmouth Publishing Company, 1993), at 110.
[15] Ibid.
[16] Ibid. at 111.
[17] Ibid.
[18] Ibid.
[19] Weinreb, "The Insurance Justification and Private Law" (1985) 14 J. Leg. Stud. 681 at 683. See generally also, Weinreb, "The Special Morality of Tort law" (1989) 34 McGill L.J. 403. The comments in this article do not take into account any changes in Weinreb's thinking.
[20] Weinreb, supra, note 1 at 10.
[21] Ibid.
[22] Feldthusen, supra, note 11 at 413.
[23] Ibid. at 409-10.
[24] Ibid. at 413.
[25] J.T.H. Johnson, "Punishment and Deterrence", Our Liability Predicament, (Lanham, Maryland: University Press of America, 1997), at 111.
[26] Ibid.
[27] Sugarman, "Doing Away with Personal Injury Law", in Robert Rabin, ed., Perspectives on Tort Law, (New York, New York: Little, Brown, and Company Law Book Division, 1995), at 169.
[28] There are instances where tort liability allows for periodic payments, however, we mention this generally and not as an absolute statement. We will not explain the precise places where it is permissible because this is not the subject of the article.
[29] Sugarman, supra, note 26 at 169.
[30] Ibid.
[31] Danzon, "The Frequency and Severity of Medical Malpractice Claims", (1984) 27 Journal of Law and Economics 115 at 143.
[32] See Sugarman, supra, note 26 at 168-9, where he states: "Consumer Product Safety Commission studies show that the most frequent injury-causing activities include (1) using stairs, (2) bicycling, (3) paying baseball, (4) playing basketball, (5) playing football, (6) using cutlery, (7) using non-glass doors, (8) using chairs and sofas, (9) using tables, and (10) using nails. Although the list includes some defective products and some instances of someone else's negligence, most of these injuries simply will not lead to tort claims. The Consumer Product Safety Commission reports that the products producing the most severe injuries include (1) cigarette lighters, (2) gasoline, (3) batteries, (4) drain and oven cleaners, (5) heating equipment, (6) stoves and ovens, (7) swimming pools, (8) power lawn equipment, (9) home chemicals, (10) money. Once again, however, injuries arising from these products are also dominated by careless usage by victims rather than products defects. It is important to take account of the fact that cigarettes, alcohol, automobiles, drugs, and firearms fall outside the Consumer Product Safety Commission's jurisdiction".
[33] Sugarman, supra note 26, at 167-8.
[34] See Sugarman, supra note 26, at 168. Less than one in three vehicle accident victims obtained damages, less than one in five work-related accident victims obtained damages, and less than one in fifty victims of all other accident types obtained damages.
[35] Danzon, supra, note 30. Also see "Medical Malpractice Liability", Liability: Perspectives and Policy, (R.Litan and C. Winston, eds.) 116 (1988). For a discussion of many reasons why tort victims fail to file claims and evidence of the class-related pattern of claims, see Abel, "The Real Tort Crisis--Too Few Claims", (1987) 48 Ohio. L.J. 443.
[36] Sugarman, "Personal Injury and Social Policy - Institutional and Ideological Alternatives", in Nicholas Mullany and Allen Linden, ed., Torts Tomorrow, (Sydney, Australia: LBC Information Services, 1998), at 302.
[37] Sugarman, supra, note 26 at 171.
[38] Ibid. at 172.
[39] Ibid. at 173.
[40] Ibid.
[41] Ibid.
[42] Ibid. at 172.
[43] For the purposes of this article, please assume that deterrence and punishment can be categorized under corrective justice.
[44] Englard, supra, note 13 at 114.
[45] Feldthusen, supra, note 11 at 409.
[46] Ibid.
[47] Trebilcock, "Incentive Issues in the Design of No Fault Compensation Systems", in Saul Levmore, ed., Foundations of Tort Law, (Oxford: Oxford University Press, 1994), at 308.
[48] Ibid. at 309.
[49] Although Québec is a civil law jurisdiction, we comment on it as persuasive authority. Furthermore, no-fault compensation is part of Québec's public law, and public law in Québec is common law.
[50] Trebilcock, supra, note 46 at 310.
[51] Ibid.
[52] Rabin, "Historical Perspectives on Liability for Accidental Harm", Perspectives on Tort Law, (New York, New York: Little, Brown and Company Law Book Division, 1995), at 34-5.
[53] Englard, supra, note 13 at 113.
[54] Ibid.
[55] Ibid.
[56] Ibid.
[57] Ibid.
[58] Ibid.
[59] Ibid. at 114.
[60] Ibid. at 114.
[61] Ibid.
[62] Ibid.
[63] Ibid.
[64] Ibid. at 114-5.
[65] Fleming, supra, note 8 at 175.
[66]
Ibid.
[67] George Priest, "The Current Insurance Crisis and Modern Tort Law", in Saul Levmore, ed., Foundations of Tort Law, (Oxford: Oxford University Press, 1994), at 290-3.