Can we really understand the law?

“Law is a system of rules and guidelines which are enforced through social institutions to govern behaviour…” (Wikipedia definition).

In the 21^st century, the caution exercised in protecting the rights of others – including not damaging their property or causing them injury (physical, reputational, mental, emotional) – shapes almost every area of life: from owning assets to workplace relationships; from economics to politics; from recreation to marriage and family life.

It is therefore essential that sensible, well-educated citizens have a fairly clear understanding of what constitutes a “reasonable duty” under the law, and conversely what is legal negligence.  Otherwise how are we to objectively assess our own actions, or to understand when the actions of others are potentially violating our common-law or statute rights?

We all understand that the application of the law can be highly technical and complex.  Sometimes court decisions as reported in the media appear to blatantly defy common sense, and we rationalize that there may be more to the story.

But where different judges reach radically different conclusions on the same set of facts, citizens can be forgiven for losing confidence in the “layman’s” ability to understand common law as it governs our lives.

Take the instance of 7040 homeowners in Port Colborne, Ont. (pop 18,600).  Inco (now Vale) closed a local refinery in 1984, and most of the town joined forces to sue the nickel giant for allegedly diminished property values resulting from soil contamination.

In July 2010, the Ontario Superior Court awarded the townspeople a total of $36 million.

But the victory was short-lived.

In a 70-page ruling released in October, a 3-judge panel on the Ontario Court of Appeal overturned the original decision, disagreeing with the lower court judge on at least 4 key issues!

This illustrates that the application of legal principles may be more art than science.  Although the ability to request appeal is a legal right to ensure fair justice, the widely differing decisions in this example may cause an erosion of confidence in the stability and fairness the law is designed to provide.

Tags: duty, law, Liability, negligence, risk