Know Your Torts: Basser Book Review

Reena Basser, Paralegal

Paralegal and instructor Reena Basser reviews “Tort Law: Cases and Materials” – Ernest Weinrib, Emond Montgomery Publications, 2003. It examines the philosophy and history behind legal torts that affect paralegals in civil law matters.

Am I actually reviewing a textbook about tort law? Yes! We paralegals deal with torts in practice through negligence and emotional distress. This book explores theory and expression. This is refreshing and will give you perspective the next time you approach a case in torts.

Weinrib is a professor at the University of Toronto Law School and writes extensively on the subject of tort law. This textbook is divided into the major categories of tort, and includes the leading cases on the subjects: Nuisance, Remedies, Negligence, Duty and Remoteness, Cause in Fact, Defences, Intentional Torts and informed consent, Nonfeasance, and Strict Liability. All of those well-known cases that we studied in paralegal courses come to light here. In “duty and remoteness,” Donoghue v. Stevenson is replete with lines like this one, describing the case:

“The bottle contained the decomposed remains of a snail which were not, and could not be, detected until the greater part of the contents of the bottle had been consumed. As a result she alleged [Ms. M’Alister] and at this stage her allegations must be accepted as true, that she suffered from shock and sever gastro-enteritis.”

The case in negligence here opened the door for millions of other such cases. Until the 1930’s, negligence law was more strict, more linked to the obvious connection between the damaged party and the one who committed the alleged tort. In time, negligence took on a greater role. As Lord Atkin cited the Bible, in his dicta on the case, “I am my brother’s keeper,” and therefore he put the higher standard of care in the manufacturer’s world. This is related to key tort factors: duty of care and remoteness.

Weinrib draws on many Canadian cases, so the book is right on point for our cases. Even if your client is seeking a remedy through insurance, you still need to know the terms to use, the terms not to use and how to evaluate whether your client has a sue-worthy case. Just last month a client contacted me to retain me for a dog bite that he sustained while working in a public park. Even though the insurance was certainly going to pay for his injuries, time off work, and some other matters (including the ever-expanding psychological shock and trauma), I had to review my tort law in order to draft the claim with terms drawn from the precedent cases. The Dog Owner’s Liability Act embodies many of the major tests of tort, but it was still helpful to be able to realize that my client had a good case.

The final chapter of “Tort Law: Cases and Materials” addresses the rather thorny problem: “Should tort law be replaced,” and includes a selections of essays on the subject, primarily discussing the role of insurance in the world of personal injury.

    Reena Basser, B.A., M.A., Ph.D., is a licensed paralegal and Professor in the Humber Paralegal program.

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