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Through Legal Eyes
Canadian Perspective
Stable, but Busy
There have not been any recent wholesale legislative reforms of tort law
in Canada. Canadian principles of tort liability and damages have avoided
many of the perceived excesses of our neighbour to the south. Although
there have been few examples in the sporting field, the boundaries of tort
law are nevertheless being regularly challenged. For example, concerted
efforts, ultimately rebuffed by the Supreme Court of Canada, have been
made to impose liability on social hosts for damage done by or to inebriated
guests after leaving the host’s premises. The relative stability of tort liability
in Canada has not, however, deterred litigation. A wider acceptance and
use of contingency fee arrangements, as well as a trend towards expand-
ing the range of defendants sued in any given situation, have resulted in
more actions against more people. In the sports context, this means more
lawsuits that name not just the persons directly concerned with an alleged
wrong causing an injury but, also, officials, clubs, leagues and the owners
and operators of facilities used for sport (including schools and other public
authorities).
A related trend has been an increased awareness on the part of claim-
ants’ lawyers about what needs to be pleaded to engage a liability policy held
by a defendant. Intentional acts and negligence are often pleaded in the
alternative, triggering a duty to defend. Even where a target defendant is
uninsured and possibly judgment-proof, the risk that a co-defendant could
be held 1% liable (and thus, because of principles of joint and several liable,
vulnerable to a claimant recovering the
full judgment from the solvent, in-
sured, client), is often enough to cause
parties with strong liability positions to
compromise. Good liability insurance
coverage with provision for defence of
liability lawsuits becomes all the more
important in such cases.
On the other hand, defendants
and their insurers have frequently been
taking more robust stances against un-
meritorious claims, in an effort to deter
opportunistic cases. As in other parts
of the Commonwealth, in Canada, the
loser pays some of the winner’s legal costs and on occasions sports defend-
ants have pressed for and collected such costs. The use of alternative dispute
resolution has also been strongly promoted by federal, provincial and terri-
torial levels of government. For example national sport bodies who receive
federal funds must now use the federally funded Sport Disputes Resolution
Centre of Canada, rather than courts, to resolve certain disputes that they
become involved in.
Graeme Mew is a partner with Nicholl Paskell-Mede LLP in Toronto (gmew@
npm.ca) He is also an arbitrator for the Court of Arbitration for Sport and a
Judicial Officer for the International Rugby Board.
UK Perspective
Winds of Change or Hot Air?
The last 10 to 15 years have seen the UK become embroiled in an
American-style culture of complaint, leading to more personal injury and
clinical negligence claims than ever before. The government has reacted by
proposing reforms to streamline the process and make it smoother, easier
to understand and cheaper to conduct. The problem for us is that, as things
stand, all we have are proposals, with few or no actual changes being made.
Rousing talk of the winds of change from Lord Falconer has left us all look-
ing over our shoulders, unsure of what it is we’re looking at.
As well as introducing changes to push us towards mediation, fixed
timetables and free legal advice to resolve matters before they get to court,
proposals include raising the fast track limit from £15,000 to £25,000, to
create greater flexibility, resulting in a greater number of cases being heard
in the appropriate track. There has also been talk of raising the limit for
small claims, to lift a large number of claims from the fast track into the
small claims track, to deal at a stroke with a problem we have all faced –
huge costs being wracked up over claims that are worth a small amount.
This would be an advantage to defendants, as many claims would then be
moved into the bracket of claims where legal costs cannot be recovered. The
problem is that it would leave a large number of claimants without access
to legal representation. Whilst it may be said that they will get assistance
from judges, the reality is that the majority of cases settle long before they
get to court, so there is a real risk that
justice will fail to be done and the most
vulnerable will suffer. The problem the
government faces is that, in the current
climate, doing nothing is no longer an
option.
One hope we all have is that any
changes which are introduced, togeth-
er with the passing of the Compensa-
tion Act and the Solicitors Regulation
Authority taking a firmer stance, will
stamp out the unscrupulous behaviour
of claims management companies who
have dragged the name of personal injury lawyers through the mud – the
general public is not our biggest fan at the best of times, and the “ambulance
chasers” we see on the TV are doing little to improve our image.
Reform in the legal sector is vital to improve consumer confidence
in its ability to deliver justice. Are we heading in the right direction? Your
guess is as good as mine.
Surjit Dubb is a solicitor with Eastwoods Solicitors in London.
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