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Deterrence in the law of negligence Caunt, Lachlan

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 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.

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Attribution-NonCommercial-NoDerivatives 4.0 International

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