Legal wrongdoings, victim rights: the framework of liability
MetadataShow full item record
AbstractSuppose there is an automobile accident. Driver Diane rear ends driver Jerry, who gets whiplash. Jerry would sue Diane directly, and must prove that Diane's lack of care while driving caused the whiplash. Then there would be the question of whether Jerry had done anything which made the injury worse; for instance, whether he was wearing his seatbelt. Third, there would be the question of how much Jerry should be paid in damages. If he had a pre-existing injury, Diane would be liable only for the aggravation of the injury. This is not to say that an injurious act cannot be both a tort (private or civil wrong) and a crime (a public wrong). It often is. Nevertheless, the sanctions, the paths to the respective sanctions, and the persons who benefit from those sanctions are definitively in separate categories (see chart below). Suppose that an over-zealous fan attacks a referee after a hockey game. The police could charge this fan with the crime of assault, for which if convicted, the fan could go to jail. However, the referee might also decide to sue the fan for money damages. The referee would sue in the tort of battery and would receive any money damages awarded. Intention for doing or not doing something is an unsteady horse. Intention must be inferred from surrounding circumstances and actions. Occasionally, the accused will have said something to others which may indicate intention. Most of the time, the evidence of intention is equivocal: the Crown argues that it was demonstrated, but the accused denies any intention to go along with actions. Only the accused really knows what his or her intention was. This dilemma is acknowledged for regulatory offences.
Article deposited after permission was granted by the editor of LawNow magazine, 06/28/2010.