Hasson, R. A.

English

York University, Osgoode Hall Law School

Osgoode Hall Law School of York UniversityOsgoode Digital CommonsArticles & Book Chapters Faculty Scholarship1976Book Review: Assessment of Damages for PersonalInjury and Death, by Harold LuntzR. A. HassonOsgoode Hall Law School of York UniversityFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/scholarly_worksThis work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works4.0 License.This Book Review is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted forinclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons.Recommended CitationHasson, R. A. "Book Review: Assessment of Damages for Personal Injury and Death, by Harold Luntz." Canadian Bar Review 54.1(1976): 184-186.184	THE CANADIAN BAR REVIEW [VOL . LIVday when one of these lawyers is frantically searching through hisCanadian Criminal Evidence to see if he can find a case on pointsome wise and honest judge will lean over and exclaim: "whocares!" He will then decide the fate of the offered proof bymaking a simple judgment based on the few principles thatunderlie any rational adjudicative process and that are oftenobscured in these books beneath a myriad of cases.NEIL BROOKs*Assessment of Damages for Personal Injury andDeath. By HAROLDLUNTZ. Sydney : Butterworth Pty Ltd. 1974 . Pp. xxxii, 350.(No Price Given)This is an outstanding book : it is certainly one of the best mono-graghs on any branch of the law of tort that has appeared in thecommon law world in the last thirty years. This must have beena particularly difficult book for the author to write for not onlyis the subject he has chosen to write about an intrinsically com-plicated one but the author feels that the whole system of commonlaw damages should be jettisoned in favour of periodic benefitspaid on a no-fault basis. Indeed, one gets the impression that Mr.Luntz would be very happy if there were no need for successiveeditions of his book .If there is an aspect of the law of damages which has notbeen extensively and acutely discussed, I have not been able tofind it . Whether he is dealing with the rule in Brunsden v.Humphrey,' the rule in B.T.C . v. Gourley,2 the collateral sourcerule, actuarial methods of computing damages and many othertopics, the author is always clear, exhaustive and forceful .All this does not mean that I would agree with all of Mr.Luntz's recommendations. Thus, in a "no-fault world", Mr. Luntzwould abolish the private action for damages for assault andbattery but the reasons he gives for this recommendation are notconvincing. He argues that punitive damages do not make sensein a world of liability insurance . This is true, but presumably, in ano-fault regime liability insurance will be a thing of the past.Alternatively, even with liability insurance, there is no reason why* Neil Brooks, of Osgoode Hall Law School, York University,Toronto .1 (1884), 14 Q.B.D . 141 .2 [1956] A.C . 185 .1976]3 Ibid .4 (1874), L.R . 10 Ex . 1 . ,5 My emphasis .Book Reviews 185the insurance should be held to cover awards of exemplary orpunitive damages. Finally, there is no need to fear that the wrong-doer will be punished twice. It should be possible within a singleproceeding to make sure that the wrongdoer only pays one penaltyand it should be possible to divide that penalty between the victimand the State .Although the question is a very difficult one, I am unable toshare Mr. Luntz's support of B.T.C . v. Gourley.3 Insurers do notpay tax on the sums they retain under Gourley. This seemsparticularly difficult to justify when the law (certainly in Canadaand the United Kingdom) already gives very generous tax treat-ment to insurers . It is hard to justify this amount of generosity,unless one can be fairly certain that premium rates would besignificantly lowered. There is another aspect to the problem: atpresent awards for damages do not take inflation into account.If the plaintiff in Gourley had had £.37,720 (instead of L6,695)to invest, this would have given greater protection against theravages of inflation. Mr. 1-untz would argue that the way to dealwith the inflation problem is for the courts to expressly take thisinto account in assessing damages. This idea obviously has meritbut until that change is accomplished, I would favour the pre-Gourley law.I would also-given the present fault regime-not tamperwith the collateral benefits principle which the author would liketo have totally removed from the law, even to the extent ofdeducting (at least some) charitable gifts from the victim'sdamages. The author delivers a devastating broadside at Bradburnv. G.W. Railway.4 Although it is true that the reason given by thecourt in Bradburn in support of the rule, namely, that the insuredhad paid his premiums, is weak, I would not make the parallelwhich the author makes between property and personal injuryinsurance. In the former case, even with the revenue-producingproperty, there is not usually present the problem of measuringcontinuing5 loss which arises in all cases of serious personal injury.Again my fear is that with the refusal on the part of the courtsto take into account inflation and given also their reluctance touse actuarial tables, that the level of dam-ages will be inadequateto compensate victims even for their economic losses during theperiod of their disability . I should add that even in a "no-fault186	LA REVUE DU BARREAU CANADIEN [VOL. LIVworld", I would see no objection to, for example, unions pur-chasing group accident insurance, the effect of which might putemployees in a better position financially while injured than whileworking.Thelaw of damages relating to personal injury is, of necessity,in a thoroughly unsatisfactory state. All too often one is forced atthe present time not to choose the "best solution" (because it isunavailable) but rather the "least bad" alternative.Occasionally, I have differed from Mr. Luntz in my choiceof the "least bad" solution but this is not to deny that he haswritten a book of the first-rank . I am certain that it will come tobe so regarded, both by academics and by the legal professionthroughout the Commonwealth .R. A. HASSON*Cases and Materials on Criminal Law and Procedure. FourthEdition. Edited by M. L. FRIEDLAND . Toronto: Universityof Toronto Press. 1974 . Pp. xv, 1021 . ($25.00)The first thing one notices about the new edition of ProfessorFriedland's well-known casebook on criminal law and procedure'is that there has been a vast increase in size over the last edition,from 701 pages to 1021 pages-a not inconsiderable expansionfor a set of materials which, unlike its major competitor,' purportsto deal only with the general principles of criminal law and doesnot contain chapters on the better known substantive offencessuch as murder, assaults, theft and fraud. This said, however, theincrease in coverage has been very well used indeed so that thisvolume, which sells at a special student price, is almost certainlythe best casebook in the field available to Canadian law teachers .Indeed, the great improvements over the third edition come assomething of a surprise on account of the very modest prefaceto this new edition which tends to place emphasis on the factthat the basic structure has remained the same. While this is true,the expansions and additions are such that this work now standson its own as a very complete treatment of the subject area andthe usual law teacher's desire to supplement with further personal* R. A . Hasson, of Osgoode Hall Law School, York University,Toronto.1D. A . Schmeiser, Criminal Law : Cases and Comments (2nd ed.,1973) .

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