Torts - rdo-olr.orgrdo-olr.org/wp-content/uploads/2018/02/olr_6.2_binchy.pdf · Ottawa Law Review...
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TORTS William Binchy* I. INTRODUCTION At a time when its very foundations have been called into question the law of torts has displayed in recent years tremendous resilience as well as a remarkably innovative capacity. It would be irony indeed if this most stimulating area of the law were to be legislated out of existence at a time which represents probably its most fruitful contribution to jurisprudence. What follows constitutes a brief account of some of the principal develop- ments in the law of torts since July, 1971.' If, what might seem to be, undue attention is concentrated on the "growth areas," this may perhaps be defended on the basis that it is precisely their novelty which commands interest and critical attention. The present survey will consider firstly, recent developments in negli- gence and its associated areas, and will then give a brief account of develop- ments in the law of trespass, nuisance, and what, for want of a better concept, may be called "miscellaneous remedies." ' II. DUTY The nature of the "duty" requirement in negligence has been analysed exhaustively in recent years and the common understanding of it today is that it is a "control device that enables courts to check the propensity of juries to award damages in situations where matters of legal policy would dictate otherwise."' Whereas, in former years, judges, with rare excep- * B.A. (N.U.I.), B.C.L. (Hon.) (ibid.), LLM. (ibid.), Barrister at Law (Ire- land), Assistant Professor, Faculty of Law, Common Law Section. University of Ottawa. 1 Professor Fleming has observed.: "As I now feel constrained to warn my class at the opening lecture, torts--and especially negligence-is a dying subject, with no- fault automobile plans in North America and the cradle-to-grave compensation system in New Zealand jostling as undertakers," Book Review, 11 OsGoona HALL L.J. 349, at 349 (1973). For an account of the introduction of the no-fault concept into the field of automobile accident insurance in Ontario, see Kavanagh, Ontario Automobile Acci- dent Benefits, 6 OTTAWA L. REV. 285 (1973). 2The previous Survey on Torts, by Johnson, Desiardins, and Grabowski, covered a period which terminated in June, 1971: 5 OTTAWA L REv. 210 (1971). 'Cf. A. HARARI, THE PLAcE OF NEGLIGENCE IN THE LAW OF ToRTs at 22-23 (1962). 4A. LINDEN, CANADIAN NEGLIGENCE LAW c. 6, esp. at 207, n.1 (1972). ' id. at 207.
