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Full-Text Articles in Law
Betterment, Michael G. Pratt
Betterment, Michael G. Pratt
Dalhousie Law Journal
When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however often possible only by replacing old materials with new materials that enhance the value of the property, generating "betterment." In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the …
Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy
Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy
Dalhousie Law Journal
Common law courts, in Canada and elsewhere, currently insist on proof of a recognizable psychiatric illness (RPI) before granting damages to plaintiffs seeking compensation for stand-alone mental harm caused by negligent acts. This article argues that the time has come to revisit this well-entrenched principle. The inquiry focuses specifically on the policy concerns underlying the current rule. As a first step, policy considerations for and against limiting the extent of actionable mental harm are canvassed and assessed. The author concludes that some of the perceived advantages of the RPI rule, in particular predictability,are debatable and that insistence on the traditional …
Re-Thinking Whitbread V. Walley: Liberal Justice And The Judicial Review Of Damages Caps Under Section 7 Of The Charter Of Rights And Freedoms, Jeremy Taylor
Dalhousie Law Journal
This paper advances a theoretically-driven reconstruction of s.7 Charter doctrine, which currently precludes protection for personal injury damages. Proceeding from a standpoint built on deontological strains of tort theory, the author dissects the reasoning in Whitbread v. Walley, the governing authority on the applicability of s. 7 to legislated damages caps. In three stages, the author argues that in the contemporary context, theoretical and doctrinal support for Whitbread is weak. First, when tort rights are theorized non-instrumentally, rights to personal injury damages fall squarely within the irreducible sphere of personal autonomy now protected by s. 7. Second, recent developments, both …
Charles Handbook On Assessment Of Damages In Personal Injury Cases, Roger Harris
Charles Handbook On Assessment Of Damages In Personal Injury Cases, Roger Harris
Dalhousie Law Journal
This is the second edition of Professor Charles' aptly titled Handbook. The first edition was a simple reprint of a thirty-three page article that was originally published in the Canadian Cases on the Law of Torts, together with the 1978 Supreme Court "Trilogy"judgements themselves. While it provided a convenient capsulization of the issues, it clearly lacked the depth necessary to deal fully with many of the complexities involved, and the rationale for its publication was questionable (no matter how eminent its author or handsome its presentation, can any case comment really be worth $40.00?). Happily, the second edition has developed …