Tort Law Research Group’s Travels in Australia

January 18, 2016


(l-r) Professors Chamberlain, Neyers & Sinel

Western Law’s Tort Law Research Group members Erika Chamberlain and Zoë Sinel made the cross-world trek this December to Australia to present papers at the "Private Law in the 21st Century" conference hosted by the University of Queensland in Brisbane. The conference provided a forum in which legal scholars could address the key questions and challenges that private law is likely to face, nationally and internationally in the modern world.

Chamberlain presented “Snooping: how should damages be assessed for harmless breaches of privacy?” which examined the “conventional” damages award set out in the 2012 Ontario Court of Appeal decision in Jones v Tsige.

The paper explored the possible justifications for damages in cases where the defendant intrudes on the plaintiff’s private affairs but does not disclose or otherwise misuse the information. Possible justifications include vindication, deterrence, the causation of emotional distress, and interference with autonomy.

She concluded that the last of these justifications is the most consistent with privacy legislation and the availability of damages for other harmless torts, and provides the most convincing basis on which to calculate damages for these claims.

Professor Sinel, in a paper co-written with Professor Anne Schuurman, a colleague from Western’s Department of English, addressed the complicated role that emotions play in tort law. In particular, their paper, “Matter over Mind: Tort Law’s Treatment of Emotional Injury,” examined tort law’s prioritization of physical over emotional harm and the challenges that recent advances in neuroscience might pose for tort law’s differential treatment of the two.

Ultimately, they concluded that tort law’s orthodox rules are correct, but they require a new justification.

"Contrary to leading tort scholars, it is not the case that tort law protects our emotional well-being less than our physical well-being because the former is more under our control than the latter: rather, tort law’s weaker safeguarding of emotional interests reflects its overarching commitment to the equal freedom of defendants and plaintiffs," said Sinel. "To place a defendant under a legal obligation not to harm others emotionally that is equivalent to the obligation not to harm others physically places an unjustifiable limit on his/her ability to act in the world," she added. 

Professor Jason Neyers also attended the conference in Brisbane. He later traveled south along the coast to Sydney to attend Contracts in Commercial Law, 2015, an international conference hosted by the University of New South Wales.