Reshaping Responsibility: The Emerging Private Law of Institutional Wrongs

Abstract

Complex claims of institutional liability are in many ways the new normal for private law. Witness for example the Catholic Church sex abuse scandal and claims of institutional complicity in widespread wrongdoing. This chapter examines how these cases came to be, with particular focus on the evolution of the duty of care and related doctrines. The gradual erosion of the immunities that specifically protected key institutions is an important part of this story. But something deeper was also at work. The conceptual underpinnings of the duty of care in negligence were shifting. Over the course of the last century that duty has emerged as an especially powerful branch of private law. But this growth was only possible because of the way that the duty of care along with other related doctrines gradually altered its understanding of fault and responsibility. The doctrinal shifts in the duty of care, vicarious liability and other related rules gradually opened up the law of negligence to whole new categories of claims, including complex claims of institutional responsibility. These cases consistently number among the most difficult that courts have to confront and it is fair to say that task of developing tools to respond to them is very much a work in progress. The aim of this chapter is to assist that work in progress by outlining an important dimension of how those cases came to be.

Keywords: private law, residential schools, duty of care