Consider the following as an analogy for thinking about negligence and the law, the area of Lachlan Caunt’s doctoral research. If every time you got a parking ticket a mysterious stranger paid your ticket for you, would you be more or less inclined to park legally next time? More likely than not you would not drive the extra few blocks to find free parking, and simply park illegally, knowing that any fine you might get would be paid by this mysterious stranger. Such a system would make little sense: you (the driver) would not be deterred from illegal parking, therefore illegal parking would proliferate. Such an incoherent arrangement obviously does not occur anywhere.
Yet, strangely enough, something very similar exists in the world of the law. When you sue someone for being negligent, in 96 per cent of cases the person that you’re suing doesn’t pay the damage award – their insurer does. Much of the purpose of having a system in which you can sue someone for being negligent involves deterring potential wrongdoers from being negligent in the first place. Imagine, for example, that it costs $100 to ensure your ginger beer bottles are snail-free. If you knew that the damage award would be $6800 if someone were to drink from one of your snail contaminated bottle, you almost certainly would pay the $100 to avoid the $6800 fine. If, however, you had to pay the $100, but someone else would pay the $6800, it is far less certain that you would spend that $100 to avoid the negligent infliction of harm.
Lachlan’s doctoral dissertation uses multi-level qualitative and quantitative analysis to attempt to determine if, after an insurer pays out a damage award, they make the wrongdoer ‘pay’ for their negligence in some fashion. This would include tactics such as the insurer refusing to pay for future claims arising from similar negligence, increasing the amount that the insurer charges for coverage, or requiring training to avoid that particular kind of negligence.
Lachlan’s doctoral dissertation is intended to uncover the missing link between insurers and potential wrongdoers. If insurers pass on the cost, or at least compellingly threaten to, then potential wrongdoers will likely be deterred from being negligent. If they do not pass on this cost, then potential wrongdoers are not meaningfully deterred from being negligent. Much like the proliferation of illegal parking in the presence of the mysterious stranger, such an outcome would really call into question the use of having a system in which you could sue wrongdoers.
Lachlan is an Allard Law Graduate Fellow, and has held research assistantships in areas from anti-trust law to consumer law, animal rights, pedagogy, legal theory and anything in between. He writes in tort theory, conflicts of law, and legal pedagogy. He is especially excited at the prospect of working to implement the TRC calls to action in his teaching and scholarship – especially in the area of torts, where so much can be but has not been done to overcome centuries of wrongs.
