Principles
Final Remedies
•	Monetary Remedies
•	Compensatory (harm to plaintiff)
•	Restitutionary (benefit to defendant)
•	Punitive (unrelated to harm or benefit)
•	Performative Remedies
•	Specific Performance
Questions
•	Monetary v Performative
•	Monetary remedies are usual, performative remedies exceptional: Why?
•	Punitive v Compensatory
•	Compensatory monetary remedies are usual, punitive remedies exceptional:  Why?
•	Compensatory v Restitutionary
•	Compensatory monetary remedies are usual, restitutionary remedies exceptional:  Why?

Questions
•	Monetary v Performative
•	Monetary remedies are usual, performative remedies exceptional: Why?
•	Punitive v Compensatory
•	Compensatory monetary remedies are usual, punitive remedies exceptional:  Why?
•	Compensatory v Restitutionary
•	Compensatory monetary remedies are usual, restitutionary remedies exceptional:  Why?

Policy Goals of Remedies
Policy Goals of Remedies
•	Compensation
•	Compensate victim for harm suffered
•	Backward looking
•	Deterrence
•	Prevent future harms
•	Forward looking
•	Minimize administrative costs

Tort Law
Functional Rationale
•	In the trilogy this Court affirmed that the purpose of awarding damages in tort is to put the injured person in the same position as he or she would have been in had the tort not been committed, in so far as money can do so. The plaintiff is to be given damages for the full measure of his loss as best that can be calculated. But he is not entitled to turn an injury into a windfall. 
•	Ratych v Bloomer per McLachlin J.
Functional Rationale
•	The functional rational for the award of damages adopted in the trilogy . . . underlines the necessity of using the plaintiff's actual loss as the basis of his or her damages. The award is justified, not because it is appropriate to punish the defendant or enrich the plaintiff, but because it will serve the purpose or function of restoring the plaintiff as nearly as possible to his pre-accident state or alternatively, where this cannot be done, providing substitutes for what he has lost.
•	Ratych v Bloomer per McLachlin J.
Functional Rationale
•	The trilogy follows the modern trend in the law of damages away from a punitive approach which emphasizes the wrong the tortfeasor has committed. The link between the moral culpability of the tortfeasor and his obligation to pay damages to the person he injures is frequently tenuous in our technological and mechanical era. 
•	Ratych v Bloomer per McLachlin J.
Functional Rationale
•	A moment's inattention is all that is required to trigger astronomical damages. The risks inherent in such activities as the use of our highways by motorists are increasingly recognized as a general social burden. In this context, the maxim that compensation must be fair to both the plaintiff and the defendant seems eminently reasonable. 
•	Ratych v Bloomer per McLachlin J.
Functional Rationale
•	That fairness is best achieved by avoiding both undercompensation and overcompensation.
•	Ratych v Bloomer per McLachlin J.
Compensation as a Goal
Why Compensate?
•	Why compensate?
•	It is administratively cheapest to let the loss lie where is falls
Why Compensate?
•	Why compensate?
•	It is administratively cheapest to let the loss lie where is falls
•	“Loss spreading”
•	Secondary costs
•	E.g. pay for rehabilitation to return to productive work
•	Risk aversion
•	Society as a whole is better off if the loss is spread
Quantum of Compensation
•	From a compensation perspective, what is the best measure of damages?
•	How much is enough to avoid the harms caused by failure to compensate?
Quantum of Compensation
•	From a compensation perspective, what is the best measure of damages?
•	How much is enough to avoid the harms caused by failure to compensate?
•	“But for” causation
•	Put the victim in the same position she would have been in but for the accident
Over- Compensation
•	From a compensation perspective, what is the best measure of damages?
•	How much is too much?
•	Is there anything wrong with over-compensation?
Descriptive Problems with
Loss Spreading
•	Not compatible with fault or even causation requirements
•	If my house is struck by lightening, why shouldn’t K.C. Irving pay for the loss?
•	Why shouldn’t you all be required by law to chip in, regardless of fault?
•	Excellent loss spreading
Descriptive Problems with
Loss Spreading
•	Implies that party who, on the facts of the case, has deep pockets should bear the loss 
•	“The party with insurance loses”
•	But who has insurance?
•	Anyone can buy insurance
•	Should we say you can only recover if you chose not to insure
•	Who is better able to insure?
Normative Problems with
Loss Spreading
•	A right to claim against another party (e.g. tort / contract law) is a terrible form of victim insurance
•	Unreliable
•	Need to establish fault
•	Fault is irrelevant to victim compensation
•	Expensive

Normative Problems with
Loss Spreading
•	First party insurance is essentially always the cheapest form of compensation
•	Transaction costs are lower
•	The victim is always best able to buy insurance
•	Victim is best able to price their loss
•	You know your likely loss better than that of a random stranger 
Insurance and
Loss Spreading
•	What if the victim doesn’t actually have / can’t get insurance?
•	Should we wait for universal no-fault public insurance?
Insurance and
Loss Spreading
•	Many / most victims have first-party insurance
•	Because liability is such bad insurance
•	It is expensive to use private law to protect those who do not
•	To reduce cost, could we say that only victims without first-party insurance can recover?
•	This is contrary to established law
•	Moral hazard, esp in contract
Insurance and
Loss Spreading
•	What about when first-party insurance is unavailable?
•	What if first-party insurance is too expensive?
•	What if it just doesn’t exist?
Problems with
Loss Spreading as a Goal
•	Loss spreading is incapable of explaining rules of law
•	Rule = Deep pockets bear the loss
•	May explain many cases in practice
•	But not as a matter of doctrine
•	OR
•	Rule = The loss should lie where it falls
•	Use first-party insurance for compensation
Compensation as a Goal
•	Pro
•	Loss-spreading reduces overall social harm due to accidents
•	Con
•	First-party insurance is a cheaper form of compensation than tort law
Deterrence 
•	Compensatory remedies also serve a deterrence function
•	Payment by the injurer to the victim deters the injurer at the same time that it compensates the victim
Problems with Deterrence as a Goal
•	Why link the “fine” with the harm to the victim?
•	Why pay the victim rather than the state?
Problems with Deterrence as a Goal
•	Why link the “fine” with the harm to the victim?
Punitive v Compensatory Remedies
When is it right to do wrong?
Punitive v Compensatory Remedies
•	If we want to deter future wrong-doing, why not use punitive remedies?
•	Rule = “If you negligently damage someone else’s car while driving, you must personally pay a $100,000 non-insurable fine.”
•	What is wrong with this rule from a deterrence perspective?
•	Will it deter auto accidents more effectively than the current regime?
Efficient Precaution
•	Hypothetical
•	New technology is available which will alert a driver when the corners of her car are near an obstacle.  It will essentially eliminate dented panels when one car backs into another in a parking lot.  The average driver will avoid one $1000 ‘fender bender’ over the life of a car.  The technology costs $3,000 per car. Should the technology be installed? 
Efficient Precaution
•	Will the technology be installed with a punitive remedy?
•	Rule = Any driver who dents another car must pay a $100,000 fine
•	Will the technology be installed with a compensatory remedy?
•	Rule = Any driver who dents another car must pay for the cost of the repair to the other car
•	What if the price of the technology falls to $500?

Efficient Precaution
•	What if the price of the technology falls to $500?
•	Should it be installed
•	Will it be installed:
•	With a punitive remedy?
•	With a compensatory remedy?

Efficient Precaution
•	What if drivers are different.  With current technology, the average driver of a large SUV causes $5,000 in damage from fender benders, while the average driver of a Smart Car causes $50 in damage?
•	Should / will the technology be installed:
•	If the price is $3,000 per car?
•	If the price is $500 per car?
Efficient Precaution
•	Is the answer different when life is at stake? 
•	A proposed new law, if backed by a sufficiently severe punitive sanction, is guaranteed to save 50  Canadian lives every week.  Should the law be enacted?
Quantum of Deterrence
•	From a deterrence perspective, what is the best measure of damages?
•	What is the minimum necessary damages to provide the correct deterrence?
Quantum of Deterrence
•	From a deterrence perspective, what is the best measure of damages?
•	What is the minimum necessary damages to provide the correct deterrence?
•	Optimal precautions = cost of harm avoided
•	Optimal expected damages = expected harm to victim
•	Optimal deterrence = Optimal Compensation
Quantum of Deterrence
•	Optimal deterrence = Optimal Compensation
•	The goal is deterrence => The method is compensation
Deterrence & Compensation
•	If compensatory remedies are ultimately aimed at deterrence, why does the victim get the money?
•	Why not use a fine instead of damages?
•	Why are government regulatory / criminal sanctions often punitive?
Deterrence & Insurance
Third-Party Insurance
•	Does the widespread availability of third-party liability insurance defeat the deterrent effect of tort law?
Deterrence & Insurance
First-Party Insurance
•	Deterrence goal is consistent with the legal rule that the fact that the victim has first-party insurance is irrelevant to recovery