UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Deterrence in the law of negligence Caunt, Lachlan 2020

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Notice for Google Chrome users:
If you are having trouble viewing or searching the PDF with Google Chrome, please download it here instead.

Item Metadata

Download

Media
24-ubc_2020_november_caunt_lachlan.pdf [ 38.45MB ]
Metadata
JSON: 24-1.0394572.json
JSON-LD: 24-1.0394572-ld.json
RDF/XML (Pretty): 24-1.0394572-rdf.xml
RDF/JSON: 24-1.0394572-rdf.json
Turtle: 24-1.0394572-turtle.txt
N-Triples: 24-1.0394572-rdf-ntriples.txt
Original Record: 24-1.0394572-source.json
Full Text
24-1.0394572-fulltext.txt
Citation
24-1.0394572.ris

Full Text

 Deterrence in the Law of Negligence  by  Lachlan Caunt  B.A., Australian National University, 2012 LL.B. (Hons), Australian National University, 2013 LL.M., University of British Columbia, 2015  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF  THE REQUIREMENTS FOR THE DEGREE OF   DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law)   THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)  September 2020 © Lachlan Caunt, 2020   ii  The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled:  Deterrence in the Law of Negligence  submitted by Lachlan Thomas Caunt  in partial fulfillment of the requirements for the degree of Doctor of Philosophy  in Law  Examining Committee: Joost Blom, Professor, Law, UBC Supervisor  Bruce MacDougall, Professor, Law, UBC Supervisory Committee Member  Galit Sarfaty, Assistant Professor, Law, UBC Supervisory Committee Member Ralph Winters, Professor, Sauder, UBC University Examiner Efrat Arbel, Assistant Professor, Law, UBC University Examiner Erika Chamberlain, Dean, Law, Western University  External Examiner  iii Abstract   The law of negligence purports to have a deterrent effect. By suing someone, and having that person liable for damages, it is supposed that doing so deters them from repeating the action for which they are being sued. Tort theory examines this deterrent effect: but there has been surprisingly little practical examination of this phenomenon of deterrence. This dissertation examines whether or not this deterrent role for negligence exists in legal practice, by interviewing dozens of lawyers, mediators, and arbitrators, as well as insurance, medical and business professionals, all of whom habitually interact with negligence files. This dissertation looks at medical malpractice litigation, motor vehicle injury, as well as occupier’s and liquor liability.    This dissertation is both theoretical and practical. The first part of this dissertation assesses how well the existing theory defines and explicates the practice of the law of negligence. This part concludes that Corrective Justice, while the best descriptor & explainer of the law of torts, is inadequate in explicating the entirety of the field, given the complexities when insurance is added to the milieu. To adequately address the complexity that deterrence brings to the law of torts, the multiple lacunae in Corrective Justice must be filled with more Distributive Justice based theories.   In relation to the practical dimensions of this dissertation: the second part of this dissertation is concerned exclusively with how the law of negligence is practised. Clearly parsing its analysis from the earlier theoretical account, this section asks: does the role of insurance alter the effects of deterrence in the law of negligence? This chapter does so by asking dozens of lawyers and other related professionals about their daily practice, and in so doing, develops a clear picture of how legal practice and legally affected citizens operate. This chapter leads to the  iv conclusion that the law of negligence is, at best, one factor among many in governing whether people act negligently.  The complex picture of deterrence in Canadian society paints a diminished role for tort deterrence, with secondary regulation, insurance, and individual responsibility playing their own, significant roles in effecting deterrence.     v Lay Summary  When you accidentally injure someone, it stands to reason that there should be something in place to deter you from injuring someone else in the same way in the future. The current legal fashion of doing so is to sue someone using an action in negligence so that the injured person can be compensated by their injurer—and in so doing, that injurer would have the expense of the compensation as their deterrent. In practice, typically insurers pay out an injured person’s compensation, not their injurer—which largely removes that direct deterrent effect. This dissertation looks into deterrence by examining other potential deterrent mechanisms—including within insurance itself—to deter accidental but injurious conduct. By looking at four major areas of accidental injury law, this dissertation will provide a clear picture of the weakened role of deterrence in the law of negligence.    vi Preface This dissertation is an original intellectual product of the author, Lachlan Thomas Caunt. The fieldwork reported specifically in Chapters 6-9 was covered by UBC Ethics Certificate number H19-0844.    vii Table of Contents Abstract ......................................................................................................................................... iii Lay Summary ................................................................................................................................ v Preface ........................................................................................................................................... vi  Table of Contents…………………………….…………………………………………………vii List of Tables ............................................................................................................................... xv List of Figures ............................................................................................................................. xvi Acknowledgements ................................................................................................................... xvii Part One: Context, Content and Theory .................................................................................... 1 Chapter 1: Introduction ...................................................................................................... 1 1.1 Central Question .................................................................................................. 1 1.2 The Argument for the Dissertation .................................................................... 3 1.3 Roadmap for Dissertation ................................................................................... 5 1.3.1 Introducing Conclusions ............................................................................ 7 1.4 The Challenge ....................................................................................................... 8 1.5 The Importance of this Dissertation Project ..................................................... 9 Chapter 2: How Negligence is Practised: A Brief Overview ......................................... 10 2.1 The Content of the Law of Negligence ............................................................. 10 2.2 The Parties and Players in the Law of Negligence .......................................... 11 2.3 Whose Interests are Formally Implicated in an Action in Negligence .......... 13  viii 2.4 Whose Interests are Actually Implicated in an Action in Negligence: Insurers ..................................................................................................................... 14 2.5 Whose Interests are Implicated by An Insurer’s Involvement in Negligence: The “Duty to Defend” .............................................................................................. 18 2.6 Whose Interests are Implicated by an Insurer’s Involvement in Negligence: Subrogation & Subrogated Claims ........................................................................ 20 2.7 Whose Interests are Implicated by an Insurers Involvement in Negligence: Reinsurers ................................................................................................................. 21 2.8 Whose Interests are Implicated by an Insurers Involvement in Negligence: Society ....................................................................................................................... 23 2.9  Whose Interests are Implicated by an Insurer’s Involvement in Negligence: Judicial Perspectives ................................................................................................ 24 2.10 Conclusion ........................................................................................................ 26 Chapter 3: Methodology ................................................................................................... 27 3.1 Introduction ........................................................................................................ 27 3.2 Goal of this research .......................................................................................... 28 3.3 Design and methodology .................................................................................... 28 3.3.1. Scope of the Research ............................................................................ 28 3.3.2. Theoretical Approach ............................................................................. 29 3.3.3 Whom I Interviewed ................................................................................ 32 3.3.4 Why I Interviewed Whom I did Interview .............................................. 34 3.3.5 Recruitment ............................................................................................. 35 3.3.5.1 Cold Calls……..………………………………………………...36 3.3.5.2 Professional Contacts………………,,………………………….37 3.3.5.3 Snowball Sampled Interviewees…………………………..........38  ix 3.3.6 List of Interviewees ................................................................................. 39 3.3.7 Content of the Interviews ........................................................................ 39 3.3.7.1 Legal Practice Group Interviews…..…………………………....40 3.3.7.2 Insurance, Medical and Business Group Interviews ……..…….44 3.3.8 Why I didn’t Interview Whom I didn’t Interview ................................... 45 3.3.8.1 The (High) Costs of Interviewing Only Those I Interviewed…..47 3.3.9 Paths Not Taken: Quantitative Analysis .................................................. 48 3.3.10 Paths Not Taken: Surveying .................................................................. 49 3.3.11 A Note on the Use of Anonymous Interviewees' Statements……….50 3.4 Justifying My Chosen Empirical Research Methodologies ........................... 51 3.5 Data Analysis ...................................................................................................... 53 3.6 Situating myself and my work .......................................................................... 54 3.7 Conclusion .......................................................................................................... 56 Chapter 4: Theory of Negligence & Literature Review ................................................. 57 4.1 Introduction ........................................................................................................ 57 4.2 Goals of The Law of Negligence ....................................................................... 59 4.3 Which Theory is the Theory of the Law of Negligence? ................................ 62 4.3.1 A Brief Summary of Competing Canadian Accounts of Negligence Law .......................................................................................................................... 63 4.3.1.1 Corrective Justice…………………………………....….............63 4.3.1.2 Distributive Justice………………………………………….......64 4.3.1.3 Instrumentalism…………………………………………………65 4.3.2 Which of The Competing Theories Best Meets the Robustness of Reality .......................................................................................................................... 66  x 4.4 The Foundational Theory for Negligence: The Contents of Corrective Justice ........................................................................................................................ 78 4.4.1 What is Corrective Justice? ..................................................................... 79 4.4.2 Corrective Justice and Ison ...................................................................... 81 4.4.3 Corrective Justice and The Form of Damages ......................................... 84 4.5 Corrective Justice and Deterrence ................................................................... 85 4.6 Corrective Justice as a Methodological Choice—and this Choice’s Implications .............................................................................................................. 90 4.6.1 Lacunae in Corrective Justice .................................................................. 91 4.7 Corrective Justice, Deterrence and their Relationship with Insurance in the Theory ....................................................................................................................... 95 4.7.1 Corrective Justice is Based on the Interpersonal Relationship Between Wrong-doer & Wrong-Sufferer ........................................................................ 96 4.7.2 Corrective Justice Corrects Through a Payment from Wrong-doer to Wrong-Sufferer ................................................................................................. 99 4.7.3 Corrective Justice Has Little to Say About the Role of Insurance ........ 100 4.8 Conclusion ........................................................................................................ 102 Chapter 5: Identifying the Proper Role of Deterrence ................................................ 104 5.1 Introduction: How to Define Deterrence? ..................................................... 104 5.2 Deterrence in Economics ................................................................................. 105 5.3 Deterrence in Psychology ................................................................................ 108 5.4 Deterrence in Criminal Law ........................................................................... 111 5.5 Deterrence in Tort Law ................................................................................... 112  xi 5.6 Conclusion: Providing a Working Definition of Deterrence in the Law of Negligence ............................................................................................................... 114 Part 2: Parsed Practice Fields in Negligence and How Deterrence Operates in Them ...... 116 Chapter 6: Insurance as the Governor of Canadian Society ....................................... 116 6.1 Introduction ...................................................................................................... 116 6.2 Insurance as Governance: Tom Baker’s Six, and My Six Effects of Liability Insurance on Tort Liability ................................................................................... 117 6.3 Tom Baker’s Six Effects of Liability Insurance on Tort Law ..................... 118 6.3.1 Liability Insurance as an Element of Tort Liability .............................. 118 6.3.2 Liability Insurance Policy Limits & Their Effects on Quantum ........... 120 6.3.3The Sculptor: Tort Claims Shape Themselves to Match Liability Insurance ........................................................................................................................ 124 6.3.4 Liability Insurers Know The Game and Play Often .............................. 128 6.3.5 Rules, Schmules: Liability Insurance Makes Tort Rules into Mere Suggestions ..................................................................................................... 131 6.3.6 Shrinking & Stretching: Tort Law’s Borders and How They Warp to Fit Liability Insurance Borders ............................................................................ 135 6.4 My Additional Six Effects of Liability Insurance ......................................... 138 6.4.1 Liability Insurance Displaces The Requirement to Pay Personally ...... 139 6.4.2 Liability Insurance Places an Additional Emphasis on Collateral Processes Of Responsibility ........................................................................... 141 6.4.3 Liability Insurance Dampens Interest in Punitive Damages ................. 145 6.4.4 Damages Do Not Exhaust Defendants, the Process Does ..................... 149 6.4.5 Randomises Collectability Location & Complexifies Litigation .......... 151 6.4.6. Insurance Can ‘Ban’ Risky Actions in Times of Crisis ....................... 154 6.5 Conclusion ........................................................................................................ 157  xii Chapter 7: Negligence Actions for Medical Malpractice ............................................. 160 7.1 Introduction ...................................................................................................... 160 7.2 How Does the Canadian Health System Work? ............................................ 162 7.2.1 How Does Responsibility for Wrongs In Medical Malpractice Work? Legal Proceedings in Canada ......................................................................... 164 7.3 The Role of the CMPA .................................................................................... 167 7.3.1 Principles of Assistance ......................................................................... 168 7.3.2 Mutual Defence Organisation, Not An Insurer ..................................... 169 7.3.3 Membership Dues in Areas of Practice ................................................. 174 7.3.4 Indemnification ...................................................................................... 175 7.3.5 No caps .................................................................................................. 176 7.3.6 No deductibles ....................................................................................... 177 7.3.7 Provincial funding of CMPA dues ........................................................ 178 7.4 The Triptych of Liability ................................................................................. 180 7.4.1 Civil Liability ........................................................................................ 180 7.4.1.1 How Litigation & Settlement Play Out……………………......183 7.4.1.2 Damages & Punitive Damages…………..…………………….185 7.4.1.3 Deterrence in the Law of Medical Malpractice Litigation: A Conclusion……......................................................................................189 7.5 Collateral Liability Regimes in Medical Malpractice ................................... 190 7.5.1 College System ...................................................................................... 191 7.5.2 Hospital Privileges System .................................................................... 196 7.6 Discussion of Results and Conclusion ............................................................ 200 Chapter 8: Motor Vehicle Negligence ............................................................................ 203 8.1 Introduction ...................................................................................................... 203  xiii 8.2 Outline of the Field of Motor Vehicle Negligence ......................................... 204 8.3 Litigation in the Field: A Description ............................................................ 205 8.4 Direct Deterrence ............................................................................................. 208 8.4.1 Comparing No-Fault and Negligence Schemes ..................................... 209 8.4.2 Insurer Pays ........................................................................................... 212 8.4.2.1 The Wrongdoer Does Not Pay……………..………………….213 8.4.2.2 Coming Up Against Liability Limits: Underinsured Motorists……........................................................................................215  8.4.2.2.1 Duty to Resolve Within Limits……...................……..216  8.4.2.2.2 Unwillingness to Pursue a Defendant's Assets..……...220 8.4.2.3 Uninsured & Underinsured Motorists Protection Scheme.........223 8.4.2.4 Punitive Damages & Their (Non-) Application……….............225 8.4.2.5 Exclusions to Coverage..............……………………………....229 8.4.2.6 Professional Drivers..............………………………………….232 8.4.3 Summing up Direct Deterrence ............................................................. 236 8.5 Indirect/Non-Tortious Deterrence .................................................................. 237 8.5.1 Claims Rating Scales ............................................................................. 238 8.5.2 Additional Deterrence: Accidents as Trauma ........................................ 241 8.5.3 The Role of Insurance, Not Negligence, In Deterrence ........................ 242 8.6 Conclusion ........................................................................................................ 245 Chapter Nine: Occupiers Liability & Its Derivative, Liquor & Host Liability ......... 246 9.1 Introduction ...................................................................................................... 246 9.1.1 Introduction to Occupier’s Liability ...................................................... 247 9.2 How Liquor Liability Works .......................................................................... 250 9.2.1 Under Statute ......................................................................................... 250 9.2.2 Under the Common Law ....................................................................... 254  xiv 9.3 On Premises Liability ...................................................................................... 259 9.3.1 Injuries as a result of engaging in an event or activity sanctioned by the liquor provider ................................................................................................ 261 9.3.2 Negligent Behaviour by Other Patrons .................................................. 262 9.3.3 Intentional Assault by Other Patrons ..................................................... 264 9.4 Off Premises Liability ...................................................................................... 267 9.4.1 Duty to Intoxicated Patrons off Premises .............................................. 268 9.4.2 Duty to Third Parties off Premises ........................................................ 270 9.4.3 Summary of the Statutory Occupier’s Liability Regime and the Common Law Liquor Liability Regime ......................................................................... 272 9.5 The Insurance Perspective .............................................................................. 273 9.6 Collateral Schemes of Liability: Liquor Licencing ....................................... 280 9.7 Conclusion: Deterrence Takes a Front and Back Seat ................................. 282 Part Three: Analysis, Reforms & Conclusions ...................................................................... 284 Chapter Ten: Discussion & Analysis ............................................................................. 284 10.1 Introduction .................................................................................................... 284 10.1.1 In Defence of Deterrence..…………………………………………....285 10.2 Deterrence in Negligence is not Strongly Felt and Even Less Observed .. 286 10.2.1 Punitive Damages are Not an Effective Method of Implementing Deterrence ....................................................................................................... 289 10.2.2 The Unpleasantness of Being Sued is Not a Coherent Form of Corrective Justice ........................................................................................... 291 10.2.3 The Current System is an Ad Hoc Evolution, Not a Designed System ........................................................................................................................ 293 10.3 Insurers Strongly Leverage Behaviour Modification ................................. 295  xv 10.3.1 Liability Caps and Exclusions are Often as Determinative of Outcomes as Formal Rules of Negligence ....................................................................... 297 10.3.2 Negligence Law & Its Behaviour Modification Role is Premised upon Liability Insurance Rules ................................................................................ 301 10.3.3 Unsophisticated Individuals are Unmindful of Negligence Law, and are thus Extremely Difficult to Deter ................................................................... 304 10.4 Collateral Schemes of Liability Also Affect and Effect Behaviour Modification ............................................................................................................ 306 10.4.1 On the Bright Side: Behaviour Modification is Possible with Collateral Schemes .......................................................................................................... 308 10.5 Conclusion ...................................................................................................... 310 Chapter Eleven : Reform Recommendations & Conclusion ....................................... 311 11.1 Introduction .................................................................................................... 311 11.2 Substantial Chapter by Chapter Summary ................................................. 312 11.2.1 General Effects of Liability Rules on Negligence: Chapter Six .......... 313 11.2.2 Medical Negligence ............................................................................. 314 11.2.3 Motor Vehicle Liability ....................................................................... 316 11.2.4 Occupiers & Liquor Liability .............................................................. 317 11.2.5 Summary of Summaries ...................................................................... 317 11.3 Reform Recommendations ............................................................................ 318 11.3.1 Making Punitive Damages Stick ......................................................... 319 11.3.2 Removal of Subsequent Repair Evidence as Being Admissible Evidence ........................................................................................................................ 326 11.3.3 Bringing Deterrence to the CMPA in Medical Negligence ................. 329 11.3.4 Going Softly: Looking Outside of Negligence for Correction and Justice ........................................................................................................................ 334 11.3.5 Consideration of a No-Fault Motor Vehicle Liability Scheme ........... 340  xvi 11.3.6 Call for Further Research .................................................................... 344 11.4 Implications of the Findings of This Dissertation ....................................... 346 11.4.1 Policy & Practice Implications ............................................................ 346 11.4.2 Theoretical Implications ...................................................................... 347 11.5 Returning to the Beginning: Answering the Research Question & Addressing Dissertation Exigencies ...................................................................... 348 11.5.1 Returning to the Research Question .................................................... 348 11.5.2 The Argument Throughout This Dissertation ..................................... 350 11.5.3. Challenges of this Dissertation ........................................................... 351 11.6 Conclusion ...................................................................................................... 353 Bibliography .............................................................................................................................. 354 Appendix A ................................................................................................................................ 439 Appendix B ................................................................................................................................ 445     xvii List of Tables Table 1: CMPA Resolved Legal Actions……………………………………………………….165  Table 2: CMPA Compensation to Patients ……………………………………...……………..181 Table 3: 2018 Casualty Rates ……………………………………………...…………………..210 Table 4: Provincial Motor Vehicle Coverage ……………………………………...…….….....214     xviii List of Figures  Figure 1: Non-Exclusive Jurisdiction of the Law of Torts………………………………………70 Figure 2: Claims Rated Scale …………………………………………………………………..143 Figure 3: Motor Vehicle Fatalities ……………………………………………………………..211 Figure 4: Claims Rated Scale ….………………………………………………………………239      xix Acknowledgements   This journey was a wild ride. Thank you to all who provided solace and comfort over the years that it took to transform this germ of an idea into a dissertation.  Specifically, I would like to give special thanks to my supervisor, Joost Blom. His kindness and support mark him as an exceptional individual, and he will always have my thanks.  I would also like to thank my supervisor and mentor, Bruce MacDougall. His generosity of spirit and boundless intellectual curiosity aided me more than ever thought possible.  To my final supervisor, Galit Sarfaty, thank you for your methodology discussions, flexibility, cool head, and steady hands.  To Ljiljana Biukovic, Karin Mickelsen & Joanne Chung, your ceaseless advocacy on my behalf, and unflagging devotion to my cause put me on, and kept me, on this path.  To my friends and family who shall remain always beloved but momentarily nameless, thank you. Your names and contributions will remain in my memory always.  Finally, to my partner and inspiration, this work would not have been completed without you. Your strength and conviction lead me forward always. 1 Part One: Context, Content and Theory Chapter 1: Introduction “This is a book about law, though it seldom mentions courtrooms, judges, pleadings and motions, or even juries and verdicts. This book is concerned with the law in action, with the legal system as it operates for the ordinary citizen on a day-to-day basis… A fact that may seem as strange to the first year law student as to the layman is that most of a citizen’s rights and duties, though based in the law, are determined without reference to any court by a set of personnel different from those to be found in a courtroom. Although all rights properly called legal could be asserted and adjudicated in a court, on the whole it is the smallest percentage that in fact are thus determined. One reason why we fail to realise this is that we overlook the legal relationships involved in many of our ordinary social transactions.”1 1.1 Central Question  This dissertation has one central question: does the role of insurance alter the effects of deterrence in the law of negligence?  Many questions are corollaries to this central research question, but this question will be returned to over and over again in each chapter—perhaps to the point of tedium—to ensure that each part of this dissertation cumulatively builds to allow a clear answer to this question. The answer to this question parallels the above quotation. The beginnings of any answer, as Ross groundbreakingly observes, lie not in the tip-of-the-iceberg decisions of courts, but in the social, legal and quasi-legal processes that surround the formal declarations of legal rights. It is only by examining these nested processes that a coherent and meaningful answer to this research question can be drawn—and this dissertation proceeds down that path. Ross continues to observe that   1 Hugh Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustment (Transaction Publishers, 1970).  2 formal decision making procedures, be they applied by courts or administrative agencies are thus shown to be quantitatively unimportant to the working out of legal rights. To be sure, formal decisions are qualitatively important for they set standards which informal decisions are expected to follow. However, informal decisions are responsive to other considerations as well, and they cannot be understood as mechanical applications of the rules.2  It is for this reason that this dissertation, while it considers cases, literature, commentary and theory, proceeds on the basis that the truest observations of the legal system, and thus the truest observations that can answer the research question, are those who work in the system and can observe both the formal and informal decisions, and be responsive to these other considerations. These observers are not too close to the decision-making process, as they are advisors first and foremost, and advocates second.  In this way, this dissertation is an unusual one—it dwells less on precedent and cases and more on qualitative responses. It is hoped that these responses will generate stories that are powerful enough to inform the reader in a way that cases or theory never quite can.3   This central research question has a pair of nested assumptions. Firstly, there is an assumption throughout this dissertation that is not entirely borne out in all literature, as this dissertation works in a space where there is a lacuna in previous works. This assumption is that the operation of insurance affects the law of negligence. Many authors engage in a formalist study of the law of negligence without heed of insurance4—and this engagement is not something to be dismissed out of hand. Secondly, this dissertation assumes that the law of  2 Ibid at 5. 3 Anne Mackor, “Explanatory Non-Normative Legal Doctrine: Taking the Distinction Between Theoretical and Practical Reason Seriously” in Mark Van Hoeke, ed, Methodologies of Legal Research (Oxford: Hart Publishing, 2011) 45 at 69. 4 See Jane Stapleton, “Tort, Insurance and Ideology” (1995) 58 Modern Law Review 820–845; Ernest Weinrib, “The Insurance Justification and Private Law” (1985) 14:3 The Journal of Legal Studies 681–687.  3 negligence is intended to have some deterrence goal. This perspective is supported by many,5 but not all theorists6—but there is generally scant evidence for this deterrence role in practical and judicial accounts of the law.   Linked to this central research question is the lens through which I look in this dissertation. This work is, first and foremost, a pragmatic work that is intended to be oriented towards the practice, not the theory of negligence law. This lens gives primacy to the accounts of practitioners and their perspectives. This lens, and this project, favour conclusions on how the law is, rather than how it ought to be. It is hoped that what this perspective lacks in moralistic detail, is made up for by the extra scope for positivist accounts of detail. This project is oriented towards the reader on the Bench and Bar—while it is an academic work, it is hoped that this dissertation project will lead to substantive and real legal change.   1.2 The Argument for the Dissertation  The argument throughout this dissertation is that the law of negligence is more complex than its founding accounts allow for—and that, as a corollary, deterrence is weakened by this complexity. Negligence law is not a discrete subject where conclusions can be met by responding only to internal accounts of how the law should, or does operate.7 The complexity of the practice of negligence is a messy business, perhaps belied by the somewhat  5 Ernest J Weinrib, “Deterrence and Corrective Justice” (2002) 50 UCLA L Rev 621; Jules L Coleman, “Mixed Conception of Corrective Justice, The” (1991) 77 Iowa L Rev 427; Gary T Schwartz, “Mixed theories of tort law: affirming both deterrence and corrective justice” (1996) 75 Tex L Rev 1801; Guido Calabresi, “Optimal Deterrence and Accidents: To Fleming James, Jr., il miglior fabbro” (1975) 84:4 The Yale Law Journal 656–671; Paul Burrows, “Idealised negligence, strict liability and deterrence” (1982) 2:2 Int Rev Law Econ 165–172. 6 See Peter Cane, “Distributive justice and tort law” (2001) NZL Rev 401 for a more distributive and less punitive & deterrent interpretation of the goals of tort law. 7 Gordon Hilliker, Liability Insurance Law in Canada (Toronto: Butterworths, 1991) at 119–120.  4 ordered and principled accounts of the area in the sundry theoretical accounts of the field.8 This central argument is premised upon a development that is simultaneously both endogenous and exogenous to the law of negligence. This development is the radical expansion of liability insurance. Liability insurance does, this dissertation argues, play a substantial role on how the negligence is practiced. This argument continues in asserting that formalist accounts of the law of torts as discrete from the law of insurance are no longer capable of accurately describing the underlying phenomenon of tort practice.9    Throughout this dissertation, it is argued that liability insurance in its rich and varied forms has replaced the obligation to pay out a tort damage award with a much more elaborate accountability mechanism. Tort liability is a reasonably direct mechanism: a wrongdoer injures the wronged party, and then compensates that injured party to restore them to their pre-injured state.10 The much more elaborate accountability mechanism in liability insurance replaces this reasonably simplistic account of tort liability, with this replacement having both individual and collective responsibility for wrongs, as well as immediate and extended deterrence.   The argument throughout is not that the law of torts has no deterrent effect. Tort law certainly does have the ability to provide deterrence. Instead, the argument throughout is that the law of torts and its deterrent effect is simply one of many systems of deterrence and  8 Ernest Weinrib, Tort Law: Cases and Materials (Toronto: Edmond Montgomery Publications, 2009); Lewis Klar, Tort Law, 5th ed (Toronto: LexisNexis Publishing, 2012); Allen Linden & Bruce Feldthusen, Canadian Tort Law, 10th ed (Toronto: LexisNexis Publishing, 2015). 9 Tom Baker, Jonathan Simon & Deborah Stone, “Beyond Moral Hazard: Insurance as Moral Opportunity” in Embracing Risk: The Changing Culture of Insurance and Responsibility (University of Chicago Press, 2010) 52; For similar work in the field, but in the US context, see Tom Baker, “Liability insurance as tort regulation: six ways that liability insurance shapes tort law in action” (2005) 12:1 Connecticut Insurance Law Journal. 10 Aristotle: Nicomachean Ethics: Translation, Introduction and Commentary, translated by Sarah Broadie & Christopher Rowe (Oxford: Oxford University Press, 2002), Direct extracts from the original source will, for the reader’s ease, refer to the chapter and line numbers of Aristotles original source text.  5 accountability, all of which operate in the domain formerly considered to be the exclusive jurisdiction of the law of negligence. The key observation is that the law of negligence can indeed have a deterrent effect—but that, contrary to conventional understanding, the payment of damages from the wrong-doer to the wrong-sufferer does not have a substantial deterrent effect in its own right—and instead, it is the collateral processes that largely wield the deterrent effect.11 This observation shows that the collateral systems of liability—for example: insurance adjustment, wrongdoer reputation & stigma, future claims exclusions, and alternate liability for accidents—all have deterrent effects that are related to, but not a part of the law of negligence. These collateral systems are the ones that give rise to a behaviour modification effect that is similar to that of formal negligence deterrence, and given they are often within and without the system of the law of negligence, it would not be proper to state that the law of negligence does not give rise to deterrence. Instead, the precision of observing that the payment of damages does not deter wrong-doing, but the collateral processes do, is a recognition of the more complex picture that must be painted in light of the remarkable and often silent role of insurers in paying out the damage awards in almost all cases. This more complex picture indicates that the law of deterrence has been partly absorbed by the areas of contract and insurance, to represent a hybrid field in which private law has importance, but not supremacy.    1.3 Roadmap for Dissertation Part one of the dissertation contains chapters one, two, three, four and five. This part is referred to as “Part I: Context, Content and Theory”. The first chapter consists of a brief introduction to this dissertation, intended to introduce the topic and orient readers to the  11 H Laurence Ross, Settled out of court; the social process of insurance claims adjustments, Law in action (Chicago: Aldine Pub. Co, 1970) at 16–17.  6 content of this dissertation. The second chapter explicates hidden or threshold concepts to the new reader, and generally provides context to the interests and roles at play in the practice of the law of negligence. The third chapter contains the methodology for the dissertation, including a detailed description of the qualitative and empirical methods used in this work. The fourth chapter reviews and surveys the breadth of the field of negligence research—from American empirical work to English theoretical work to Canadian doctrinal work. The fifth chapter looks to the connected, but discrete, field of deterrence. Originally intended as a sub-chapter of the fourth, this fifth, discrete chapter recognises the complex nature of the theory and practice of deterrence in a variety of fields—from drug overdoses to criminal sentencing.   Part two of the dissertation contains chapters six, seven, eight, and nine. This part is referred to as “Part II: Parsed Practice Fields in Negligence and How Deterrence Operates in Them”. For readers au fait with the practice and theory of the law of negligence, it is likely that the most engaging reading will be in this section—and such readers are encouraged to begin with the sixth chapter. The sixth chapter introduces the realm of insurance to the reader. The far-reaching implications of insurance in the field of negligence are often forgotten: and are remarkably little studied.12 The seventh chapter addresses the field of medical malpractice litigation. The eighth chapter addresses motor vehicle related negligence, and the competing schemes for responsibility that exist there. The ninth chapter looks at occupier’s liability, and its derivative, liquor liability.   Part three of the dissertation contains chapters ten and eleven. This part is titled “Implications of how Negligence is Practiced”, and it details what consequences do—and should—arise as a result of the findings in part two of this dissertation. The tenth chapter addresses squarely what implications the diminished role of deterrence has for the practice  12 Richard V Ericson, Aaron Doyle & Dean Barry, Insurance as governance (Toronto ; Buffalo: University of Toronto Press, 2003).  7 and theory of negligence. The eleventh chapter does two things. Firstly, it proposes reforms that trend towards increased deterrence without causing harm to the existing system. Secondly, this chapter summarises and concludes the dissertation.  1.3.1 Introducing Conclusions   To provide guidance to the reader, it is important to flag what conclusions the dissertation ends with, so that the reader can chart their course there. To that end, I will indicate what conclusions the dissertation reaches in its latter stages, here, in the dissertation’s opening stages. This dissertation, as noted above, focuses on three somewhat representative areas of liability: medical malpractice liability, motor vehicle liability, and occupiers & liquor liability. In focusing on these areas, six brief conclusions can be assessed once all three areas are considered together:  1. Deterrence is a valuable objective for the law of negligence;  2. Deterrence as it currently operates is remarkably weak;  3. Insurance matters to the operation of negligence law;  4. Collateral liability schemes matter to rights, negligence, and personal responsibility;  5. Negligence can only be meaningfully assessed on a field-by-field basis; 6. Remedy of the status quo is possible. These conclusions are detailed largely in chapters 10 and 11—but each indicates a novel finding in this dissertation.  Throughout this dissertation, it is apparent that negligence does not operate in practice as it does in theory. The thesis that deterrence operates in solitude, as a discrete unit, mirrors how it is taught in law school—but this thesis does not meet the hard test of reality. Each of these six conclusions goes to the general thesis that negligence law is fundamentally connected with its surrounding field, and that to view it in isolation is a grave error. This general thesis is supported by the interview data, which at many points indicates  8 that the written law of negligence is distorted in its application—in large part by the operation of insurance. This distortion is a key conclusion of this dissertation, and serves as a clear departure from existing works on the subject.    1.4 The Challenge   This dissertation faces both a practical and theoretical challenge. The practical challenge is that this is a first-in-kind work in Canada, with extremely sparse scholarship describing how the law of negligence is practiced in relation to insurance realities.13 This practical challenge means that often this project is required to extrapolate from data in other jurisdictions, or to extrapolate on data from Canada in related, but necessarily imperfectly consonant fields. The surprising lack of scholarship in this field belies the importance of the work at hand—the law of negligence is deeply important to how society is governed, and how society governs itself.  The theoretical challenge is that this dissertation makes a bold challenge to a deeply settled understanding in Canadian law. This understanding is that Corrective Justice, while not necessarily perfect,14 explicates and justifies the law of negligence in Canada.15 This understanding is further underscored by the view that there is alignment between the theory and practice of the law of negligence—and that the approach of textbook writers in having a neat parsing in areas of practice is both a useful and accurate pedagogical device.     13 Most of the work studies either liability insurance or tort law, but almost never both. See, for example, the segmented approach in Hilliker, supra note 7; Klar, supra note 8. 14 Jonathan Morgan, “Tort, Insurance and Incoherence” (2004) 67:3 The Modern Law Review 384–401. 15 Clements v Clements, [2012] SCC 32.  9 1.5 The Importance of this Dissertation Project  The law of negligence has an important role to play in society.16 As a primary system of enforcing private rights between individuals, negligence law governs much of human relations.17 As a proactive system that discourages careless conduct, all Canadians are bound in the web of negligence. The law of negligence gives rights to all, but also obligations to all. By categorising rights as private rights between citizens, significant equality gains are achieved. By providing this equality, the disenfranchised can harness the power of the law of torts to lead to systematic change. Equally, those who are powerful are theoretically equal before the law of negligence—so there is no benefit gained in negligence to market share, authority, or government. The law of negligence is a great leveller.18 If the law of negligence can act to unify and equalise all Canadian interests, then much good can occur. Especially in relation to deterrence, if the law of negligence can encourage safe, responsible behaviour, we can enjoy a safer, more responsible society with fewer injuries, harms and losses. It is within this context that this dissertation operates. It is maintained throughout this dissertation that the deterrence mandate of the law of negligence is no longer operating as it is assumed. If the assumptions can be updated, then once again the law of negligence can be harnessed to create a better, safer, and more reasoned society, where accidental harms are thankfully rare, strongly cautionary, and readily compensatory.     16 William Lucy, Philosophy of Private Law (New York: Oxford University Press, 2007). 17 Ernest Weinrib, The Idea of Private Law (Cambridge, Massachusetts: Harvard University Press, 1995). 18 Gregory C Keating, “Distributive and corrective justice in the tort law of accidents” (2000) 74:193 Southern California Law Review, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269347>.  10 Chapter 2: How Negligence is Practised: A Brief Overview  The law of negligence is a vast one that intersects with almost all facets of Canadian life.1 This dissertation primarily focuses on how the law of negligence operates in practice, with only slight detours to ensure that it is appropriately grounded in theoretical accounts of the field. The purpose of this chapter is to provide the reader with an accurate picture of how the subject of this dissertation—the practice of the law of negligence—really occurs. This necessarily entails some explication of terms, organisations, and some sundry dissections of the field. More specifically, this chapter is intended to provide the reader with all of the information that they need to know in order to read and contextualise the later, more esoteric chapters. This chapter begins with a general overview of the law of negligence, then proceeds to explain how it is practiced as a discrete field, then finally explains how the law of negligence operates in relation to the adjacent—and overlapping—fields of law and practice.    2.1 The Content of the Law of Negligence  The law of negligence is a field of private law. In private law one party has a right of action against another party for a breach of their private rights that resulted in personal loss.2 Actions in negligence have the terms plaintiff and defendant applied to them, where the plaintiff is the injured party, and the defendant is the party who purportedly caused them their injury. A paradigmatic example of negligence is Donoghue v Stevenson,3 where the plaintiff consumed a bottle of ginger beer that had, without her knowledge, been tainted by the presence of a decaying and deceased snail in the bottle. Ms. Stevenson had a private right to  1 See George P Fletcher, Tort Liability for Human Rights Abuses (Bloomsbury Publishing, 2008) at 27–35, for a history of the law of torts, their evolution, and importance. 2 See Sadaati v Moorhead, [2017] 28 SCC 543 for explication of the individual elements of a tort action. 3 Donoghue v Stevenson, 562 AC , 1932.  11 avoid the injury she suffered, and thus she had an action in negligence against the manufacturer of the ginger beer, who had negligently failed to exclude the snail from their bottled products. As a field of private law, it is only the interests of the two private parties—the wronged and the wrongdoer—that are considered relevant.4 This feature distinguishes private law from the fields of public law, where the public, typically embodied by the State, has its interests’ implicated by some representation in the process.5   The field of negligence is concerned with accidentally caused wrongs. There is a broader field of intentional torts, which includes actions that require intent of the wrongdoer like assault, false imprisonment and battery,6 which are both beyond the scope of negligence and beyond the scope of this dissertation.7 Where one party accidentally causes another party harm, the negligence inquiry begins. The resolution of this inquiry: both generally, and in specific cases, is the subject of this chapter, and this dissertation.   2.2 The Parties and Players in the Law of Negligence   The parties involved in the law of negligence, as noted above, are typically the injured individual (the plaintiff) and those who purportedly injured them (the defendant). The role of these parties is to execute their own interests to the greatest degree possible under the law. The plaintiff seeks compensation in the form of damages to return them to the position, or as near as they possibly can, to the position that they were in before they were injured?8 The  4 Ernest Weinrib, The Idea of Private Law (Cambridge, Massachusetts: Harvard University Press, 1995) cs 1–3. 5 See Martin Loughlin, Foundations of Public Law (OUP Oxford, 2012) c 3. 6 See Kenneth W Simons, “A Restatement (Third) of Intentional Torts Symposium: Dan B. Dobbs Conference on Economic Tort Law” (2006) 48:4 Ariz L Rev 1061–1102. 7 Gerald Fridman, The Law of Torts, 3rd ed (Toronto: Carswell, 2010) cs 4–9. 8 See Daisuke Mori, Shuichi Takahashi & Yasuhiro Ikeda, “Compensation, punishment, and deterrence: a survey on the purpose of tort damages in the case of a defective car accident in Japan” (2017) 1:2 Asia-pacific J Regional Sci 589–624.  12 defendant seeks to avoid liability where the law does not require it. Where the law does demand that the defendant be made liable for causing a plaintiff’s injury, the role of the defendant then is to reduce their liability to the maximum extent—either by arguing to reduce damages,9 or for the application of defences.  The plaintiff and the defendant almost exclusively bring to their case one or more lawyers.10 The phenomenon of self-represented litigants, and the multiple difficulties that it entails, is much less of a phenomenon in the law of negligence11 than it is in, for example, administrative or criminal matters. A senior case manager at a national personal injury firm observed that “And that's the big thing I think, as people just don't feel that they will be treated fairly, if they represent themselves.”12 The role of lawyers in the tort of negligence is a particularly complex one. Part advisor, part advocate, part word of caution, the lawyer needs to bridge their likely superior knowledge and experience with the reality that they act on the instructions of clients. It is often that lawyers are ideally situated as lieutenants of the legal system to predict with some accuracy the outcome of a case even before it meets the scrutiny of the court system or opposing counsel.  There can be multiple plaintiffs and multiple defendants. If, for example, and individual is injured by a negligent surgery, then both the doctor and the hospital that monitored the surgical intervention can be co-defendants.2 Equally, there may be multiple plaintiffs. If multiple occupants in a single vehicle are injured as a result of a single  9 J F Clerk et al, Clerk & Lindsell on torts, 20th ed, The common law library (London: Sweet & Maxwell, 2010). 10 See, for example, the fascinating study in Stephen Daniels & Joanne Martin, Tort Reform, Plaintiffs’ Lawyers, and Access to Justice (University Press of Kansas, 2015). 11 See Rabeea Assy, Injustice in Person: The Right to Self-representation (Oxford University Press, 2015) at 6. 12 Interviewee 108, interviewed late 2019/early 2020.   13 defendant, then these occupants can join the defendant in a single action, with the individual defendant being sued by the multiple occupants in their roles as co-plaintiffs.13  2.3 Whose Interests are Formally Implicated in an Action in Negligence   The most obvious interests that are implicated in an action in negligence are that of the plaintiff and defendant. Most textbooks,14 and many authors, will emphasise the binary nature of the interests in the law of negligence: with these two interests being, namely, that of the plaintiff and defendant only.15 This notation of the binary nature of interests is primarily intended to exclude the interests of society or broader instrumentalist goals16 that may be implicated in a more open textured analysis. This binary notation is correct insofar as a court is obliged—and in fact, bound to—only consider the interests of the parties before it. It would be abhorrent to the Canadian conceptions of negligence law to make a defendant liable in circumstances where they otherwise would not be simply in order to satisfy some broader societal or instrumentalist goal.17 So, formally, from a court perspective, the interests implicated in an action in negligence are that of the plaintiff and defendant.   13 Childs v Desormeaux, [2006] 1 SCR 643. 14 John W Salmond & R F V Heuston, Salmond on the law of torts. --, 12th ed (London: Sweet & Maxwell, 1957); John G Fleming, An introduction to the law of torts, 2nd ed, Clarendon law series (Oxford : New York: Clarendon Press ; Oxford University Press, 1985); Saul Levmore, ed, Foundations of tort law, Interdisciplinary readers in law (New York: Oxford University Press, 1994); Philip Osborne, The Law of Torts, 4th ed (Toronto: Irwin Publishing, 2011); Caroline Sappideen & Prue Vines, eds, Fleming’s The Law of Torts, 10th ed (Sydney: Lawbook Co, 2011); Fleming, John, The Law of Torts, 8th Ed ed (London: Thomson Reuters, 1992). 15 See especially Ernest Weinrib, “Corrective Justice” (1992) 77 Iowa L Rev 403. 16 Discussed in chapter 4.  17 Compare Weinrib, supra note 15 to ; Jules L Coleman, Markets, Morals, and the Law (Oxford University Press, 1988).  14  Beyond a formalist account of the law, however, the interests implicated are significantly broader than those considered by courts.18 It is the thesis of much of this dissertation that, liability in negligence changes society in an imperceptible but significant manner.    2.4 Whose Interests are Actually Implicated in an Action in Negligence: Insurers The most obvious additional interest implicated in an action in negligence are those of the insurer of the parties to an action. As one prospective interviewee, a partner in a Toronto firm that specialises in subrogation, pithily observed: “Nearly every tort claim is really: Property Insurer v. Liability Insurer”.19 Insurance and insurers are the most important, but most notably hidden, interest in the law of negligence.20  The practical reality is that most people who have been injured do not have access to enough money to pay for their losses.21 If, for example, a person’s house burnt down, very few people have sufficient resources to replace that house without somehow being compensated for their now ashen house.22 Equally, if, for example, someone hits a pedestrian accidentally while driving, it is exceedingly rare that that driver will own enough resources to pay that pedestrian for their catastrophic losses.23 Especially in the latter case, it would not make economic sense to initiate an action in negligence if the person responsible for the  18 Richard Wright, “Right, Justice And Tort Law” in David G Owen, ed, Philosophical Foundations of Tort Law (Clarendon Press, 1995). 19 Private correspondence with Interviewee 019 on 9 October 2019. 20 Tom Baker, “Liability insurance as tort regulation: six ways that liability insurance shapes tort law in action” (2005) 12:1 Connecticut Insurance Law Journal. 21 Kenneth S Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era To 9/11 (Harvard University Press, 2009). 22 Whiten v Pilot Insurance, [2002] 1 SCR 595. 23 Arnold v Teno, [1978] 2 SCR 287.  15 implicated damage did not have any money.24 The case itself would be an exercise in frustration. It is a commonly understood reality that, unless a defendant is a particularly wealthy individual, or a corporation is large enough to self-insure, then they do not have enough money personally to justify litigating in negligence against them, even if you have a strong claim.25 The qualitative evidence in chapters 6-9 of this dissertation strongly bears out this conclusion. It is here that insurance is a necessary feature. Insurance puts money in the pockets of injurers that can be used to compensate those that are injured.26 Without insurance, the field of negligence simply would not have enough capital to be worth practicing for either litigants or litigators.27  Before a claim is even filed or thought of, other considerations come into play. A successful tort of negligence typically is compensated with a (financial) damage award to economically restore the plaintiff to the position they would have been in but for the loss they have suffered. Plaintiffs typically want compensation for their loss—but the law of negligence is typically one of last resort. The rich and persistent line of criticism of the effectiveness of the tort system in reaching compensation28 correctly suggests that if plaintiffs seek compensation, then the law of negligence should be an option of last resort. The most obvious path for an injured plaintiff to turn to is insurance. If a plaintiff injures themselves, then they are often covered by what is called first party insurance. If, for example, an individual’s home burns down, the most effective, clear, and obvious strategy is to claim  24 The judgement proof opportunity, Working Paper, by Klaas Van’tVeld, Gordon Clyde Rausser & Leo K Simon, www.econstor.eu, Working Paper 83.1997 (Nota di Lavoro, 1997). 25 Juan José Ganuza & Fernando Gómez, “Realistic Standards: Optimal Negligence with Limited Liability” (2008) 37:2 The Journal of Legal Studies 577–594. 26 Gordon Hilliker, Liability Insurance Law in Canada (Toronto: Butterworths, 1991). 27 Muhammad Masum Billah, Effects of Insurance on Maritime Liability Law: A Legal and Economic Analysis (Springer International Publishing, 2014). 28 Stephen D Sugarman, “Doing Away with Tort Law” (1985) 73:3 California Law Review 555.  16 against their home (first party) insurance policy.29 This would not require tort litigation, nor would it require finding of fault—it would simply require that the loss was covered by the relevant policy, and that there were no exclusions that apply to deny insurance coverage.  Equally, even where the footings of an action in negligence are made out—where, for example, an individual is negligently injured by another third party, applying the relevant insurance is the most obvious and likely cost-effective solution to resolving and compensating the injury. Liability insurance—also called third party insurance—is an established and broadly understood category of insurance.30 Liability insurance pays out the claim where, through accident, a person accidentally causes injury to another. The most obvious form of liability insurance is motor vehicle insurance—where, in a vehicle collision, the insurer pays out the costs of the injured individual instead of the driver who actually caused the collision.31 Third party insurance finds its most common forms in professional liability insurance and commercial general liability insurance.  Inevitable tension arises between first party and third-party insurance. Where someone is injured, evidently, each insurer would rather the other pay the damages award. If, for example, someone slipped and fell inside a store, first party insurance is implicated in order to compensate the injured person and third-party insurance is also implicated, because the store itself may be responsible for the conditions that caused the accident.32 The first party insurer can argue that their insurance is not implicated—because the more appropriate insurance to pay out is the third party insurance. The third-party insurer will also argue that their insurance is not implicated—because the injury was not the ‘fault’  or was not caused by  29 Barlow Lyde and Gilbert, Insurance Law Handbook (Tottel Pub., 2008) at 121, 127. 30 Kenneth S Abraham, Environmental liability insurance law: an analysis of toxic tort and hazardous waste insurance coverage issues (Englewood Cliffs, NJ: Prentice Hall Law & Business, 1991), Ch 1, 4, 6. 31 Violette Motors Ltd v Bellavance et al; Canadian General Insurance Co, [1975] 55 DLR (3d) 625. 32 Dashwood v Pillars Club & Lounge, [2002] NBQB 92.  17 their insured. What is required is a resolution—evidently both cannot pay out, which would double compensate the plaintiff; 33 nor can neither pay out, which would result in the plaintiff going without the indemnity which they are promised.34 There is no scope for the first and third-party liability insurers to split compensation given the absence of any such provision from insurance contracts. What is needed is a resolution of which form of insurance is actually implicated—namely which insurer needs to pay the injured party and which does not. This is the hidden process that sits behind nearly every negligence decision. If there is a successful case in negligence, then the third-party insurer has to pay out, as their insured is tortiously responsible for the losses they caused, which triggers their third-party insurance. If there is an unsuccessful case in negligence, the first party, if its insurance is actually implicated,35 in many cases must pay out, as there are no other third-party insurance provisions implicated.  It is in these ways that the interests of insurers are implicated. The vast majority of disputes as to which of the two implicated insurers should pay out for a person’s loss is the battle behind the more apparent battle between the plaintiff and defendant. Evidently, if both the injured party and the injurer are insured by the same insurer, then there is little insurance point in litigating, so the matter would be settled between the insurance policies before it reached court. Equally, the vast majority of cases that might be resolved in court are settled before—generally well before—the case would make it to trial. In this way, in all injuries, insurance is implicated—but the resolved-in-court style of litigation that most studies examine are only a potentially unrepresentative tip of the iceberg.    33 Andrew McGee, McGee: The Modern Law of Insurance (LexisNexis, 2018) at 311. 34 Hilliker, supra note 26 at 4–5. 35 Under, for example, a home insurance policy Gilbert, supra note 29 at 507.  18 2.5 Whose Interests are Implicated by An Insurer’s Involvement in Negligence: The “Duty to Defend”   Insurers are much more involved in the process of actually litigating a claim than is often understood. Almost all insurance contracts have a provision typically known as the ‘duty to defend’ provision,36 from auto to homeowners to commercial general insurance.37 As Pryor notes,  when a person purchases insurance, they actually purchase one obligation and one promise: firstly, the obligation to pay out any claims against that person; and secondly, a promise to provide a legal defence to our claim, irrespective of the costs of the lawsuit. The duty to defend is the second duty, the duty to pay is the first. The duty to defend is both an obligation and a right by an insurance company. The insurer, by having the obligation to defend the case, ensures that insureds effectively always have representation in court if their policy is implicated. In an insurance policy, the duty to defend clause is typically written as follows:  as respects such insurance as is afforded by the other terms of this policy, the insurer agrees to defend in the name of and on behalf of the insured claims suits, or other proceedings which may at any time be instituted against the insured for any occurrence covered by this policy, although such claims, suits, proceedings or allegations and demands may be groundless, false, or fraudulent.38 The proceedings can only invoke the duty to defend if matter is within the scope of the insurance policy between the insured and their insurer.39   The insurer also has a right to manipulate the litigation in a manner that favours their interests. For example, if a third party insurer believes that they will lose the case if they  36 Ellen S Pryor, “The Tort Liability Regime and the Duty to Defend” (1999) 58:1 Md L Rev 1–54 at 4. 37 Pryor, supra note 36. 38 Hilliker, supra note 26 at 60. 39 Bacon v McBride, 1984 Supreme Court of British Columbia at para 151.  19 contest liability, they will almost inevitably settle before the case makes it to court. All that is required is that they exercise reasonable care and skill in resolving their litigation.40  The typical clause in an insurance contract reads that the insurer may settle any claim “as may be deemed expedient by the insurer”.41 Equally, if a third party insurer is concerned that a case may lead to broader exposure to risk for their other clients—for example, by converting an area that may potentially generate liability into an area that will definitely generate liability—then the insurer also has right to force the case to settle, even if they are not certain that the case will be resolved against their client.   The duty to defend effectively gives the insurer control over the insured’s litigation—it is the insurers legal team, after all, who represents the client, not a legal team picked by the insured themselves. If a person is injured—and they are covered by insurance—they will obtain compensation from their own insurer if their injury is not caused by the fault of another. First party insurers also have a duty to defend and represent that is operative upon them. The court system is effectively determining whether or not the defendant caused the injury through their faulty conduct—and if a court determines that the defendant did not cause the injury, then often, the plaintiff’s first party insurer will be obliged to pay out the insurer under their first party insurance policy.42 So, when it comes to litigation, the plaintiff is often represented by their first party insurer who is seeking to make the defendant, who is represented by their third-party insurer, the faulty and thus financially culpable party. In cases where the first party insurer is not representing their insured, a litigation funder can come into play.43 This litigation funder effectively pays for the case to proceed, and then takes a  40 Joe v Insurance Corp of British Columbia, [1984] 11 DLR (4th) 633 at 121. 41 Hilliker, supra note 26 at 74. 42 See McGee, supra note 33 at 455–457. 43 Terrence Cain, “Third Party Funding of Personal Injury Tort Claims: Keep the Baby and Change the Bathwater” (2014) 89 Chicago Kent Law Review 11.  20 (significant) percentage of the eventual damage awards that are paid out.44 These litigation funders have expansive control over how a matter is litigated, often up to and including the full disposition of the matter.45 This is yet another manner in which nominally third parties have their interests strongly implicated in the practice of negligence.  It is as a result of the duty to defend that insurers wrest control from the individual plaintiff and defendant,46 converting the litigation into a shadow struggle between first and third-party insurers, each of which do not wish to pay.   2.6 Whose Interests are Implicated by an Insurer’s Involvement in Negligence: Subrogation & Subrogated Claims  Insurers are evidently of vital importance to the practice of negligence.47 The insurer role allows injured parties to often have reassurance that the person they are suing in negligence will have enough money to pay them if they are injured. What is common in the law of negligence, and in the insurance world, is to subrogate a claim so that the legal matters can be resolved without overly disturbing the underlying interests of the defendant and plaintiff.48 For the purpose of negligence law,  subrogation is the substitution of the plaintiff and/or defendant (often both) in respect to an insurance claim, with the rights and duties associated with that claim moving from the insured to their insurer.49 Effectively, an insurer pays out the claim to their insured, then steps into their insured’s shoes to litigate the matter  44 Ibid. 45 Ibid. 46 Douglas R Richmond, “Liability Insurers’ Right to Defend their Insureds Annual Nebraska Survey” (2001) 35:1 Creighton L Rev 115–152. 47 Ellen S Pryor, “The Tort Liability Regime and the Duty to Defend” (1999) 58:1 Md L Rev 1–54. 48 When Can an Insurer Exercise Its Right of Subrogation?, SSRN Scholarly Paper, by Nicholas Pengelley, papers.ssrn.com, SSRN Scholarly Paper ID 2222167 (Rochester, NY: Social Science Research Network, 2013). 49 See McGee, supra note 33 at 289.  21 to recover the money they paid out to their insured.50 An example would be where a plaintiff had a claim against someone for negligently storing vaccines in a manner that damaged them.51 The case was covered at both ends by insurance: the plaintiff had comprehensive commercial insurance that covers their losses; and the defendant had liability insurance which covers any losses that they may cause to third parties such as the plaintiff.52 In this case, the real interest is not who is as at fault in terms of the vaccines prematurely expiring: the question is whose insurance policy is implicated. The insurers in this case, and many other similar cases where the real question is more of an insurance than a tort one, step in to subrogate the claim and take control of the litigation.   In this manner, what appears to still be a case where two parties are seeking a resolution of a negligence related matter becomes an insurance matter through subrogation.   2.7 Whose Interests are Implicated by an Insurers Involvement in Negligence: Reinsurers Insurers survive in a persistently tough market on razor thin margins only through the strength of the reinsurance market. Although liability insurance can trace its mainstream influence only really to the early to mid 20th century,53 reinsurance can be traced as far back as 1384.54  Insurers are only one of the hidden major players in the practice of the law of negligence.55 As the figure behind the defendant, insurers matter greatly to plaintiffs in terms  50 Gregory R Veal, “Subrogation: The Duties and Obligations of the Insured and Rights of the Insurer Revisited” (1992) 28:1 Tort & Ins LJ 69–89. 51 Sanofi Pasteur Limited v UPS SCS, [2015] 124 OR (3d) 81. 52 Ibid. 53 See citation to Andre Tunc in Jonathan Morgan, “Tort, Insurance and Incoherence” (2004) 67:3 The Modern Law Review 384–401. 54 PT O’Neill, ed, The Law of Reinsurance (London: Sweet & Maxwell, 2019) at 51. 55 Steve Hedley, “Making sense of negligence” (2016) 36:3 Legal Studies 491–512.  22 of whether there is money available to pay compensation awards. Of enormous significance to insurers themselves is what are called reinsurers. Reinsurers are the figure behind the somewhat spectral insurance figure in the law of negligence.56 P.T. O’Neill notes “individuals and businesses do not have or if they do have, cannot set aside funds that would be required to be able to cope financially with all the things that may happen, but may not. So they insure, and the insurer puts that money by.”57 What the reinsurer does is ensure that that money that is put by is sufficient, by insuring the risk that it is not.  Reinsurance works by a reinsurer purchasing some of the risk to which insurers are exposed to in exchange for a portion (sometimes a disproportionate one) of the insurance premiums from that pool of insureds. This way there are radically more resources available for an insurer if their claims exceed the premiums that they earn from that pool—the risk is spread, and thus diversified, onto the reinsurer as well. In cases of catastrophic risk, where unanticipated risks flood a market,58 reinsurance is the only way in which insurers, who operate on razor thin margins as it is, can survive without declaring bankruptcy. Nonetheless, reinsurance is not a perfect shield for insurers—as a result of asbestos related conditions (largely the fatal cancer mesothelioma), the vast majority of front line insurers and many reinsurers were forced to declare bankruptcy.59 They were forced to do so because the liability for claims radically outstripped the ability of individual insurers and even their reinsurers to pay.60   56 Rob Merkin, “Insurance and reinsurance in the Fairchild enclave” (2016) 36:2 Legal Studies 302–325. 57 O’Neill, supra note 54. 58 See the saturation of the US insurance market as a result of mesothelioma claims in Stapleton, Jane, “Two Causal Fictions at the Heart of US Asbestos Doctrine” (2006) 122 Law Quarterly Review 190. 59 Stapleton, Jane, “Factual Causation, Mesothelioma, and Statistical Validity” (2012) 128 Law Q Rev 221–231. 60 Merkin, supra note 56.  23 In relation to interests that are live in a negligence case, reinsurers are of high importance. Much like the duty to defend, reinsurers can contract with insurers to have a degree of control over the litigation that their reinsurance affects. In this manner, another interest is implicated in what initially seems like a binary between plaintiff and defendant.   2.8 Whose Interests are Implicated by an Insurers Involvement in Negligence: Society   As is often observed, tort law does not occur in a vacuum.61 What happens in the law of negligence affects and changes legal orders in society at large. The relationship between broader society and the law of negligence is, formally, a one-way street. The binary nature of the court process, and the binary relationship between plaintiff and defendant, are the primary concerns of a court. In this way, society itself does not formally change the law of negligence, because ‘society’ does not have a party or a specific claim in any negligence case. However, when changes occur in the law of negligence, these changes are clearly found in society at large. When, for example, before the Trilogy cases62 were handed down, courts varied how they awarded damages by a significant margin, insurers were affected by the uncertainty, resulting in those insurers upping their premiums and exclusions in a way that was deleterious to society’s interests. Equally, after the courts found there to be a case in negligence for breast implants that ruptured at a higher than expected rate, breast implants rates were reduced, and doctors changed their procedures for selecting and inserting implants.63 The law of negligence doubtlessly affects society at large.64   61 Hugh Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustment (Transaction Publishers, 1970). 62 Arnold v. Teno, supra note 23; Thornton v School Dist No 57 (Prince George) et al, [1978] 2 SCR 267; Andrews v Grand & Toy Alberta Ltd, [1978] 2 SCR 229. 63 See the effects of Hollis v Dow Corning Corp, [1995] 4 SCR 634. 64 Andrew Robertson, “Policy-based reasoning in duty of care cases” (2013) 33:1 Legal Studies 119–140.  24  Informally, however, society does have a partial role to play in the negligence process. At multiple stages—especially at the duty of care section of an analysis—courts are compelled to reflect on whether or not society would be positively or negatively affected.65 In this manner, society gets a say—through judicial interpretation and a judicial lens—in what outcomes a court reaches in a negligence action.66   Society has an effect upon negligence; and negligence affects society. The interests of society are clearly implicated in the practice of negligence—but these interests are only indirectly represented in the court process in order to maintain the important role of the law of negligence as private67 (as opposed to public) law.   2.9  Whose Interests are Implicated by an Insurer’s Involvement in Negligence: Judicial Perspectives  Contrary to the practice of the law of negligence, insurance is not meant to be formally part of the rubric of liability.68 Although the provision of insurance documents is mandatory between parties in most jurisdictions in Canada,69 judges are not allowed to view insurance coverage or limits, likely through legitimate apprehension that doing so would encourage plaintiff sympathy in the face of an insured defendant. The American view differs significantly from that of the other common law countries. Justice Traynor in Escola v Coca Cola Bottling stated “the cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and  65 Jane Stapleton, “The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable” (2003) 24:2 Australian Bar Review 135–148. 66 Robertson, supra note 64. 67 Donal Nolan, “Causation and the Goals of Tort Law” in Andrew Robertson & Tang Hang Wu, eds, The Goals of Private Law (London: Hart, 2009) Ch. 7. 68 See Jane Stapleton, “Tort, Insurance and Ideology” (1995) 58 Modern Law Review 820–845. 69 Supreme Court Civil Rules (B.C.).  25 distributed among the public as a cost of doing business”70—which certainly gives the appearance of a strong endorsement of insurer interests being explicitly implicated in considering liability in negligence. A more orthodox view, noted well by Weinrib,71 is that of Justice Stephen in the High Court of Australia:  If loss-inflicting consequences of an act are reasonably foreseeable and the necessary proximity is shown to exist, the present state of the law of torts, unreformed by any fundamental departure from fault liability, suggests no reason why the tortfeasor should not bear the consequences of his conduct. The task of the courts remains that of loss fixing rather than loss spreading and if this is to be altered it is, in my view, a matter for direct legislative action rather than for the courts. It should be undertaken, if at all, openly and after adequate public inquiry and parliamentary debate and not worked towards covertly, in the course of judicial decision, by the adoption of policy factors which assume its desirability as a goal and operate to further its attainment…But there is, I think, no justification for the courts, when deciding actions in tort between private litigants, to make use of such views as policy determinants in the absence of any independent opportunity to test their soundness and without parliamentary sanction for the departure from pre-existing goals of the law of torts which their espousal involve72  Justice Stephen clearly enunciates the judicial leeriness of stepping over the line of considering the parties as solitary, discrete entities and stepping into the realm of acknowledging the complex interests that are at play in every case. If, as Justice Stephen reasons, courts begin to look beyond the plaintiff-defendant binary and start looking at who stands behind the defendant, then what is to stop a court from considering the financial resources of the plaintiff, or the interests of the family of the plaintiff? Breaking out of this  70 Escola v Coca Cola Bottling Co, [1944] 24 Cal 2d 453. 71 Ernest Weinrib, “The Insurance Justification and Private Law” (1985) 14:3 The Journal of Legal Studies 681–687. 72 Caltex Oil Pty Ltd v The Dredger “Willemstad”, [1976] 136 CLR 529 at 580 emphasis added.  26 binary is a potential solution to the dilemma of perverse outcomes in negligence law—but should only be done with great caution and care.     2.10 Conclusion  The law of negligence is more complicated, and less binary, than it seems at first blush. Far from being a purely private affair in which two private parties resolve their dispute, there is a rich tapestry of interests which affect the law of negligence in implicit and explicit ways. The practice of the law of negligence must be mindful not only of the interests of the parties they are representing, but their insurer, their subrogator, their college, their organisation, and that of society at large. The practice of the law of negligence is a complex practice—and the diversity of interests that are represented, and the effects upon those interests, are challenging to track and be mindful of. The remaining chapters of this dissertation proceed to track some of these interests, and is mindful of how negligence affects the legal and social environments in which it rests.    27 Chapter 3: Methodology  “That’s one of the big downsides when people write about research methods – it is all so neat and pretty. The messiness of much of it just doesn’t come through in the books”1  3.1 Introduction   I strive in this section to not make my methodology look falsely “neat and pretty”, and to reflect some of the inherent “messiness” in the process of determining how deterrence is effected through the law of negligence. After all, “research is a messy business”,2 and frankness better suits description than false elegance. This research process was a deductive one. Initially, many paths seemed open and valid ways in which to reach the research goals of this project. Interviewing judges, quantitative analysis, viewing commercial in confidence materials and running regression analyses were all promising options that through different exigencies did not become part of this research project. The process settled upon for the methodology of this research project was to interview broadly within the Canadian insurance and legal communities in order to get an accurate perspective of what the practitioners on the ground saw as the law and its effects. Reaching this methodology, to adhere to the acknowledgement of the messiness of the empirical research, took a year of adjudging appropriate pathways, including seeking other pathways that were, for various reasons, closed to this researcher. These reasons are detailed in the ‘paths not taken’ subsections below. The final methodology, I feel reassured, is the best one that was available. The choices made along the way in arriving at this methodology may or may not have been  1 Norman K Denzin & Yvonna S Lincoln, The SAGE handbook of qualitative research, fifth ed (Thousand Oaks, CA: Sage, 2018) at 18. 2 Ibid c 23.  28 objectively perfect ones. It is hoped that in this section, I am sufficiently clear about the research design choices made that future researchers can model similar studies on the best sections of this research without falling into the pitfalls of the imperfect sections.   3.2 Goal of this research   The research goal for this dissertation is to clearly and accurately demonstrate whether the purported deterrent effects of the law of negligence exist. If this dissertation casts light on whether and how negligence gives rise to deterrence, this research goal will have been satisfied.   3.3 Design and methodology 3.3.1. Scope of the Research This section provides an indication of the subject and breadth of the research conducted for this dissertation. Because of the traditionally low turnout associated with surveys, and because interviews can provide a nuanced and detailed description, I chose to use interviews as the basis of my qualitative data gathering process. This dissertation research has two dimensions: the doctrinal and empirical.  The doctrinal research came first chronologically, and had three stages: initial research, detailed research, and corroborative research. The doctrinal research sought to identify relevant trends and fields of practice that relate to the law of negligence, deterrence, and insurance.  This research looked equally at Canadian and common law jurisdiction cases and secondary materials (such as journal articles and books) in its initial phase, and sought to paint for me a clear picture of how the field of negligence is practiced, and how it should be practiced. Beyond this initial phase, I conducted an inspection of the literature in the relevant sub-fields of the law of negligence, insurance, reinsurance, contract, subrogation and others  29 occurred in order to give me a clear, detailed understanding of how the fields of negligence operate. The final stage of doctrinal research occurred during and after the interviews were concluded.  The qualitative research involved exactly 50 interviewees. This research started slowly, with prior contacts forming the first three interviews, and snowball sampled interviewees forming the next seven interviewees. After this initial stage, I abandoned the temerity of only interviewing those who were known to me, and I cast the net wide and sent out hundreds of individually written cold call emails. These had substantial, although intermittent, success.  The research for this dissertation consisted of interviews, primary and secondary materials, and some—albeit very limited—use of data from relevant organisations. This scope was deliberately limited to make sure that the data that was gathered was of high quality, useful, and on point—without any secondary materials that may conflate or confuse the final findings.   3.3.2. Theoretical Approach   This research is intended to be a pragmatic hybrid of Conley & Williams3 approach to business ethnography and a Bourdieusian theory of practice.4 Throughout, I prioritise representing the field of law in as real of a light as possible. I resist the temptation to describe law as a formal process in order to have a clearer structure—instead, I follow the curvature of  3 John Conley & Cynthia Williams, “The Corporate Social Responsibility Movement as an Ethnographic Problem” (2008) All Papers, online: <https://digitalcommons.osgoode.yorku.ca/all_papers/51>. 4 See Pierre Bourdieu & Loïc J D Wacquant, An Invitation to Reflexive Sociology (University of Chicago Press, 1992); Pierre Bourdieu, Outline of a Theory of Practice (Cambridge University Press, 1977); Pierre Bourdieu, The Logic of Practice (Stanford University Press, 1990).  30 my participants’ observations of how the field operates.5 I rejected approaches that interrogated formalism as part of the essential inquiry, and also steered clear of more American, instrumentalist approaches to the law.  This research is premised upon a survey of the legal field as it relates to the law of negligence. As Metzger and Black observe:  An ethnographic description of law, then, is an ethnographer's attempt to learn about and describe whatever behaviour, if any, is found to fall within what people conceive "law" to be in the culture he is studying. This implies (1) that these people conceive of a domain that is "law";  (2) that an anthropologist can tap, or inventory, their relevant conceptions; and (3) that he can report this ideology to his fellow anthropologists in a way that is both understandable and subject to precise verification or disproof by colleagues who do not wish to take his word6 In relation to first point, it is doubtless that my participants conceived of the area as ‘law’. The core of my interviewees were lawyers, and I was interviewing them about the core of their legal practice. Interestingly, the interviewees did not consider the intersection of insurance and other informal processes as being separate from the ‘law’, but rather viewed the intersection of these less formal legal processes as part of the formal law itself. As interviewee 486, a senior defence counsel, notes, despite the fact that the formal law of negligence upholds the interests of only the plaintiff and defendant “So typically, when we defend a case, we do have two clients. We have the insured and the insurers’…defence counsel.”7 Essential to their view of the law as formal practice was that, even though only  5 See the counsel provided in Lee Epstein & Andrew D Martin, An introduction to empirical legal research, first ed (Oxford: Oxford University Press, 2014) at 7–15. 6 Mary Black & Duane Metzger, “Ethnographic Description and the Study of Law” (1965) 67:6 American Anthropologist 141–165 at 141. 7 Interviewee 486, interviewed late 2019/early 2020.   31 one of their clients is named in the court action, this formal legal interest contained both the insured and the collateral process of their insurer involving themselves in the proceeding.  In relation to the second point, I maintain that I can tap or inventory the relevant conceptions of how my interviewees conceive of the law. Through precise questioning and persistent lines of inquiry, I regard my interview style as at least partly of capable of tapping and assessing how my subjects conceive of the law. It must be observed at this point that as an interviewer, I rely on my interview subjects to be both honest and candid. The fact that interviewees are in the top echelon of legal practice and that they are being interviewed anonymously and confidentially is intended to ensure that the interviewees have, respectively, an accurate view of legal practice, and an incentive towards candour and honesty.  In relation to the third point, I regard my methodology as capable of both precise description and capable of verification by disbelieving colleagues.  My goal, as described above in part 3.2, the scope of this research, as described in part 3.3.1, also above, is to provide a clear picture of how the practice of negligence works in relation to deterrence. All claims made in the body of this dissertation are not premised upon individual opinion alone—which is anticipated to be beneficial for precise verification by those sceptical about these claims. Where possible, claims are verified either by multiple corroborating interviewee observations or by applying cases or secondary research to corroborate these views. Care is taken to not rest any argument on the slender reed of one interviewee’s personal views, especially given the widely varying perspectives of the interviewees on fundamental questions pertinent to this dissertation.    32 3.3.3 Whom I Interviewed  This research project viewed the relevant habitus as the legal practice that encapsulates how the law of negligence is practiced in Canada.8 This project sought to generate a clear picture of exactly how the legal community views the practice of negligence in Canada, both generally, and in relation to medical malpractice, motor vehicle negligence, occupier’s liability, and liquor liability. The willingness of often remarkably busy lawyers, and insurance and medical professionals to speak at length with me was surprising and notable. Only two lawyers below the level of partner were interviewed, and in the business, insurance and medical fields, almost all personnel interviewed were at an executive level or above. There were two categories of interviewees recruited: Legal Practitioner participants, and Insurance, Medical, and Business (IMB) participants. Legal practitioners formed the vast majority of the corpus of interviewees.   The idea behind interviewing legal practitioners instead of, for example, negligent parties or potentially negligent corporations, is based upon Bourdieu’s concept of the habitus.9 The law is not necessarily how it is legislated or dictated by the common law, nor is the law generally replicated perfectly in single instances. The law is how the law is practiced—so, as I am attempting to understand how law of negligence is practiced, there is no informant better placed than legal practitioners. They serve as an excellent proxy for what is occurring in the legal habitus, as they are both guardians and actors in the legal space—and have the vision to see past, present, and future cases all at once. A lawyer is, first and foremost, an advisor10—they can be trusted, at a minimum, to have a clear-eyed perspective  8 See Bourdieu, supra note 4. 9 Pierre Bourdieu & Angela Zanotti-Karp, “Structuralism and theory of sociological knowledge” (1968) Social Research 681–706. 10 See Gary A Munneke & Theresa E Loscalzo, “The Lawyer’s Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions” (1989) 9:3 Pace L Rev 391–450.  33 of the domain they work in. Legal practitioners also have the benefit of being the party that sees multiple iterations of like and unlike cases, and thus can develop a clearer picture of both the average case and the novel case. In interviewing legal practitioners, I was aware, however, that longevity in the industry and legal skill are good proxies for clear minded-ness. As such, I recruited almost all of my cold calls from the 2018, 2019 and 2020 editions of “Canada’s Best Lawyers”,11 a list that is recognised as portraying an accurate picture of the best and brightest of the Canadian Bar. This list is peer-reviewed, and has a clear indication of which lawyers are recognised as excelling in any single or multi-year period.12 Equally, I ensured that I interviewed almost exclusively partners in law firms, so that interviewees would have maximal experience and proficiency in their practice of law.   Insurance, Medical and Business (IMB) participants were also interviewed, but they formed a much smaller portion of all interviewees. IMB participants were used to fill in gaps of understanding by those within the legal community habitus. For example, even the most experienced medical malpractice lawyer did not have a clear picture of how standards for surgeons were set in Canada, necessitating, for example and among others, interviews with senior staff at various societies and medical organisations. IMB participants were used to develop an understanding of the collateral fields to the legal practice habitus: namely insurance, medicine and business. Each of these three fields has a remarkable effect upon the legal practice field, but knowledge of how these three fields operate by legal practitioners was sometimes surprisingly spotty. For example, there was general ignorance among legal practitioners about how insurance premiums were set and altered—even in reasonably discrete fields like motor vehicle negligence.   11 “Best Lawyers in Canada | Best Lawyers”, online: <https://www.bestlawyers.com/canada>. 12 “A Purely Peer ReviewTM Methodology | Best Lawyers”, online: <https://www.bestlawyers.com/methodology>.  34  3.3.4 Why I Interviewed Whom I did Interview   The justification for interviewing those whom I did interview is closely linked to both the goal of this project and to the theoretical underpinning of this project. The goal of this project was to show the practice of the law of negligence as it is—rather than as it is supposed to be. The theoretical underpinning of this project was based on the Bordieuan conception of the habitus—with the legal community that form the core of the interviewees forming this relevant habitus.   Lawyers are, in this author’s view, the most clear-eyed representatives of the legal habitus. Lawyers have the benefit of seeing the entirety of case—from its inception to its conclusion—in an iterative, long-term fashion. Lawyers practice law, and far from being simple observers, make the decisions that affect a clients’ legal outcome consistently and persistently. Lawyers also see a wide variety of cases over a long period. Senior lawyers—at the partner level as a floor, not a ceiling—provide the best survey of all lawyers, as these lawyers have the broadest perspective. These senior lawyers have, over their years of practice, seen every aspect of the legal habitus: from the drudgery of discovery to the arcane details of managing the finances of a practice. Senior lawyers live the law on a day to day basis—and their frank, candid perspectives were regarded to be the most credible source of how the law is practiced, and what effects the practice of the law has on the Canadian legal community. Lawyers are the ultimate repeat players:13 they are likely to see the same clients if those clients continue to be negligent, and given the long time-frames of litigation, are able  13 Kevin T McGuire, “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success” (1995) 57:1 The Journal of Politics 187–196.  35 to see a likely multi-year snapshot of how plaintiff, defendant, and other legal members operate.14   Equally, the IMB community is taken to have a broad and useful perspective in how their own, collateral fields operate. There are some blind spots within the legal habitus: lawyers, at times, know that something works as it does, but do not necessarily know why it is so. For example, insurance premiums, exclusions, and modifiers are widely known as realities within the legal community: but who actually determines these three important insurance dimensions was noted to not be particularly well known. Equally, there is only partial knowledge of how businesses respond to the legal imperatives: lawyers have (reasonable) assumptions about business responses, but without being personally at the discussion table, their assumptions are only that: assumptions. By ensuring that in my interviews with the IMB community occur exclusively with highly senior practitioners, it is expected that these interviewees will be able to fill in the lacunae of understanding that the legal practitioners have. The IMB community was accessed at multiple points throughout the interviewing process—effectively, wherever there was an area where multiple Legal Practice interviewees identified something both as important and something beyond their understanding, I flagged the area as one to investigate further through research. If my research was not able to unearth a clarification, then I sought an interviewee who could cast light on the matter in the IMB field.    3.3.5 Recruitment  Fifty interviewees participated in the interview process. All but one of these interviewees had their conversations recorded, transcribed in full, and returned to them for verification of accuracy. The one interviewee (for whom the recorder failed to operate) had notes taken  14 Ibid.  36 verbatim by computer. The interviewees came from three sources: cold calls, prior professional contacts and snowball sampled interviewees. The majority of interviews came from cold calls that in turn generated snowball sampled interviewees.   3.3.5.1 Cold Calls  Cold calls were both the most and least successful method of obtaining participants. The majority of interviewees were recruited via cold calls—with a surprising spread of interviewees consenting to be interviewed. It was initially feared that partner level lawyers would be too busy or generally unwilling to be interviewed for this research project. Such fears were not justified. Nearly every lawyer who consented to interview for this project was at partner level or above.. The eventual interviewees reflected closely those interviewees who were willing to be interviewed, and not necessarily those interviewees who were approached. It is estimated that for every participant who consented to interview, 8 potential participants did not respond to the request to interview, and 1 interviewee did respond but declined nonetheless to be interviewed. Therefore, hundreds of emails were sent out to achieve the number of cold-call interviews reached. All interviews were individually written and tailored to the experience and book of business of the particular lawyer involved. The methodology for selecting cold calls was based on an interest in having the most skilled and experienced lawyers as interviewees. Three different methods were used to determine which interviewees should be approached.  Firstly, in attempting to find legal practice interviewees, the credible, peer-reviewed “Best Lawyers” guide was used to find the names and contact details of relevant lawyers in Canada. In seeking the names of lawyers to cold call through this guide, I searched for relevant areas of expertise to this dissertation, namely the following terms: “medical malpractice”, “products liability” “motor vehicle”, “class actions”, and “negligence”. I used  37 these terms to narrow the search area so that all interviewees could be relied upon to be both highly credible in their field, and also knowledgeable in the areas germane to this dissertation.  Secondly, also in attempting to find legal practice interviewees, I used significant cases from the relevant areas of negligence law in order to find which counsel had represented the named parties. By looking at these significant cases, and the counsel that appeared in them, it was expected that these lawyers would be representative of high-quality lawyers in the field. Giv