While tort law as a whole refers to the branch of law that deals with non-contractual issues, the issue of tort reform is somewhat smaller. Within the realm of tort is negligence law, and it is this area that provides the arena for debate over the place of tort law within today’s society, and its possible reform. When the topic of tort reform is broached, the question inevitably asked is whether elected officials should be attempting to reduce the number of lawsuits? While some may argue a straight out ‘yes’, it may be more pertinent to argue in favor of small reform, which will produce less frivolous lawsuits while still retaining the fairness and justice individuals expect out of the legal system.

   There is no question tort cases account for a large proportion of the civil cases a judge may hear. These cases often create a backlog in the legal process, and require a great deal of resources to complete. This is the argument of those who want big tort reform. However, if there was only a reduction in cases that didn’t need to go to court, the cases that have little legal merit, or are purely a cash-grab, the legal system would be more effective for those who really need it. It would reduce cases like the 2008 case Mustapha v. Culligan of Canada Ltd (Tibbes, 2008). Mustapha brought the suit against Culligan claiming “debilitating psychological injury” (Tibbes, 2008) as a result of finding a dead fly in his bottled water. The case highlights what is wrong with the legal system; cases that cannot reasonably prove the minimum standard for suing- that the injuries inflicted were reasonably foreseeable- (Tibbes, 2008) are taking up resources that could be used on cases that have more legal merit.

   Limiting which type of cases could be heard, or legislating maximum damages for a specific injury are ways in which elected officials can help to reduce the number of lawsuits. In Alberta, a soft tissue injury claim cap was put in place for that specific purpose. Under the cap, those with soft tissue injuries resulting for a vehicle accident could claim a maximum of $4,000 for their injuries (Alberta judge rules that soft tissue injury claim cap is unconstitutional, 2008). Under this system, those who experience injuries are still compensated, but are unable to use the system to sue for damages that may reward them compensation far exceeding the extent of their injuries, perhaps in the millions of dollars (Macaulay et al., 2007).

   An issue that arises with this kind of small tort reform imposed by elected officials is whether these reforms violate any pre-existing laws. In the soft tissue injury claim cap set by the Alberta government, a case was won against the government on the basis that it discriminated under the Charter of Rights and Freedoms (Alberta judge rules that soft tissue injury claim cap is unconstitutional, 2008). Since the precedent-setting ruling was made insurance settlements have stalled and the system is backing up with claims that will sit until the matter is resolved (Rusnell, 2008). In this instance, small tort reform has worked at reducing the number of cases that go to court (Alberta judge rules that soft tissue injury claim cap is unconstitutional, 2008), and reliving the pressure on an overburdened legal system, but further reform must be instated to remove any perceived discrimination against victims.

   It should be noted that by eliminating negligence tort cases all together (big tort reform), and settling compensation through a compensation board, there can be no argument made that one injured group is given preferential treatment, thus no discrimination suits. New Zeland instituted this type of reform in 1973, and since the victims are injured through no fault of their own, they receive a set amount of compensation based on their injuries (Klar, 2008). This is based off a communitarian view of society, where those injured should be compensated quickly and fairly; the funds otherwise spent on the court proceedings instead go directly to compensation (Klar, 2008). The downside to this version of reform, and what stops many countries from adopting it, is that it removes the accountability of the offender, and in many ways removes the sense of ‘justice’ or ‘fairness’ that comes from a court based suit.

   When the idea of tort reform is discussed, the question inevitably falls to whether elected officials should take a more active role in reducing the number of lawsuits a judge hears. Small tort reform is the answer to those who believe reform is necessary, but still wish to retain the ‘justice’ aspect of taking a suit to court. It is not a perfect solution to reducing frivolous or ‘cash-grab’ suits, and pose problems of discrimination, but small tort reform will go a long way to preserving limited resources and speeding up the legal process (Alberta judge rules that soft tissue injury claim cap is unconstitutional, 2008), two of the biggest arguments against the legal system as a whole.


Works Cited

Alberta judge rules that soft tissue injury claim cap is unconstitutional. (2008,02,08). The Chronicle.

Klar, Lewis. (2008,10,03). Law and Politics, Political Science 390. Guest Lecture. University of Alberta.

Macaulay, S., et al. (2007). Law in Action. Foundation Press.

Rusnell, Charles (2008,02,15). Alberta to seek stay of cap ruling on Thursday. Edmonton Journal.

Tibbetts, Janice (2008,05,23). Fly in water case swatted by court; Man's fear of showers reason for payout. Edmonton Journal, p. A3.