Discriminatory Impact of Application of Restitutio in Integrum in Personal Injury Claims

CIAJ 2009 Annual Conference


48 Pages Posted: 18 Feb 2012

Date Written: 2009


When we talk about tort law, we should start with the premise that it is designed to protect [human] dignity and promote social equality and social justice. Our causes of action and remedies should be tailored to…achieve those ends.

Introduction: According to proponents of therapeutic jurisprudence, legal rules and actors (lawyers, judges, etc.) can have either therapeutic or anti-therapeutic effects. Law is a social force with the potential to impact either positively or negatively the emotional life, psychological well-being and sense of social citizenship of legal subjects. Remedies for vindicating rights provide a conceptual lens for ascertaining how the interest at stake is valued. Therapeutic or anti-therapeutic effects may result from the valuation of a plaintiff’s losses and his/her human capital, especially when compared with others in similar circumstances. Personal injury can have a particularly devastating impact on the lives of victims — physically, psychologically, financially, socially, etc. It is therefore important that personal injury law, in particular the assessment of losses, should seek to improve therapeutic outcomes for victims and minimize the potentially harmful effects of engagement with the legal system that may result from focusing on social identity. As Cassels notes, “It is hard to use the word justice to describe a system that replicates injustice and ensures that the disadvantaged remain disadvantaged.”

The underlying premise of this paper is that although the structure of tort law is generally informed by corrective justice, that is, consideration is given only to the relative positions of the injurer and victim in a dispute, the tort system often reflects distributional considerations or broader societal interests. Thus, tort law principles, in particular those relating to the determination of liability, are rarely conceived solely in terms of correlativity and hence a bilateral engagement between the victim and tortfeasor. Rather, courts often consider broader issues such as the impact of a finding of liability on particular relationships and on the availability of certain social goods. These considerations can result in denial of an otherwise “legitimate” claim. Thus, notwithstanding how compelling a plaintiff’s claim might be from a moral and corrective justice standpoint, liability may be considered morally objectionable or socially undesirable. Viewed in this light, tort law is utilitarian because it reflects broader societal interests and a willingness to sacrifice individual interests for the greater good of society. Emphasis on broader societal considerations in determining the nature and limits of tort liability underscores the fact that the administration of justice, and in particular tort law, is a human and social institution designed to respond to the needs of society.

Courts frequently make policy decisions and choices in their decision-making. As Professor Luntz argues, reliance on legal principles alone will often be insufficient to decide cases that come before the courts and it is important for courts to use policy in making decisions. Courts sometimes openly acknowledge that legal principles or aspects of their decision-making process reflect particular policy choices, values and distributional considerations, whereas others do not and even disavow reliance on policy. This confirms the observation that law, in particular the role of courts, is not simply declaratory of pre-determined rules or naturally constitutive social relations, what has been referred to as the “fairy tale view of law.” Rather, courts and legislatures actively construct, structure and maintain social relations. One of the benefits of this process is the ability to structure tort law to respond to the changing needs of society and to reflect contemporary conceptions of social mores, values and justice. Courts make particular policy choices that reflect their perception of social reality and human interactions, including assumptions about the place and role of persons in society, which may be gendered, racialized, classed, ableist, etc. Luntz argues that the fact that judges can have multiple reasons for a particular outcome, even if they concur in the result, and the frequency of dissenting judgments show the latitude available to judges. These varied outcomes cannot result merely from the application of legal principles; judges are bound to be influenced by values and policy considerations in making their decisions.

Many tort theorists and courts reject a purely monist and non-instrumental view of tort law. While tort law is seen as an instrument for shaping society and hence promoting broader societal interests with respect to liability, distributional considerations are rarely adopted at the remedial stage. Rather, courts resort to formal legal principles and the need for “principled” outcomes that accord with law and justice between the parties when providing remedies for tort victims. Specifically, courts rely on the principle of restitutio in integrum — restoring the plaintiff to her status quo ante as far as money can do — as justification for the formalistic approach. Broader societal interests are deployed in remedial considerations usually in relation to intangible interests (non-pecuniary damages) and non-compensatory damages, such as punitive damages. However, there is reluctance to infuse broader policy considerations into compensation for tangible interests, such as impaired working capacity, in ways that will promote social justice, fairness and the equal moral worth of all plaintiffs. This reinforces historical patterns of discrimination, and projects these inequalities into the future, sometimes contrary to changing social realities.

This paper adopts a consequentialist approach that focuses not only on substantive principles of tort liability but also considers how general principles of tort remedies are applied to victims, especially claimants from marginalized backgrounds. I explore the implications of the principle of corrective justice on the tort system, noting its inadequacy to fully explain the workings of that system and arguing that distributional considerations necessarily intrude. Remedies for personal injury can be a site for reinforcing and exacerbating the vulnerability and devaluation of members of marginalized groups. Discrimination is pronounced in the assessment of pecuniary losses, specifically in trust awards and damages for impaired working capacity. The paper will focus on these issues because the traditional legal principles informing this area reveal the unfairness to claimants from marginalized backgrounds and could leave the impression that it is cheaper to injure persons from such backgrounds compared to those from more favourable socio-economic situations. Damages for impaired working capacity and in trust awards also present unexplored opportunities to creatively assess victims’ losses in ways that will not reinforce their socially constructed marginalization and devaluation. This also reflects our commitment to equality and the Canadian Institute for the Administration of Justice’s (CIAJ) theme of using remedies to give content to substantive legal rights and to reflect “contemporary trends in law and society.”

Keywords: Justice, legal remedies, law, Canadian, Canada, CIAJ, ICAJ, Canadian Institute for the Administration of Justice, Institut canadien d’administration de la justice

Suggested Citation

Adjin-Tettey, Elizabeth, Discriminatory Impact of Application of Restitutio in Integrum in Personal Injury Claims (2009). CIAJ 2009 Annual Conference, TAKING REMEDIES SERIOUSLY - LES RECOURS ET LES MESURES DE REDRESSEMENT: UNE AFFAIRE SÉRIEUSE - CANADIAN INSTITUTE FOR THE ADMINISTRATION OF JUSTICE - INSTITUT CANADIEN D'ADMINISTRATION DE LA JUSTICE, p. 121, 2009, Available at SSRN: https://ssrn.com/abstract=2006550

Elizabeth Adjin-Tettey (Contact Author)

University of Victoria - Faculty of Law ( email )

P.O. Box 1700, STN CSC
Victoria, B.C. V8W 2Y2
250.721.8182 (Phone)
250.721.8146 (Fax)

HOME PAGE: http://law.uvic.ca/faculty_staff/faculty_directory/adjintettey.php

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