Waiver of tort is an archaic legal doctrine through which a plaintiff can choose to relinquish the right to compensation for damages and instead receive disgorgement of the defendant's wrongful gains.
The author argues that both the traditional understanding of waiver of tort and the conception of waiver of tort as an independent cause of action are untenable.
Over the last decade, the antiquated doctrine of waiver of tort has re-emerged in Canadian law, raising concerns.
Current manifestations of waiver of tort purport to provide a meaningful remedy for the plaintiff in situations where tort losses are too difficult to prove.
The primary reason why waiver of tort is sometimes thought of as an independent cause of action is due to a misunderstanding of the difference between causes of action and remedies, and how they relate to various legal concepts.
Part I examines the traditional application of waiver of tort as a doctrine that is parasitic on other legal wrongs.
Part II traces the rise of waiver of tort as an independent cause of action.
Waiver of tort has become a hollow and internally inconsistent doctrine, leaving judges and litigants confused about how and when a cause of action might support disgorgement.
After the forms of action were abolished by the Judicature Acts between 1873 and 1875, waiver of tort survived in situations of implied contract and extinctive ratification.
Jackson v Penfold illustrates the application of waiver of tort under both implied contract theory and extinctive ratification within the context of a bailment.
This could be understood as a typical application of waiver of tort in the implied contract theory, where Heinz is deemed to owe the Board a debt rather than suing for a proprietary tort.
While it neglected donors' property interests, the working group simply assumed that a waiver of tort
claims would burden donors, and without any offsetting benefit to donors or science.