lsa.mcgill.calsa.mcgill.ca/pubdocs/files/extra_contractualobligations/... · Web viewCaparo...

ContentsINTRODUCTION to ECO...............................................................................................................................7

1457 CCQ.............................................................................................................................................9

INTRODUCTION to the Nature and Functions of Extra-Contractual Liability (I)...........................................9

Shifting losses model.........................................................................................................................11

Crim, punitive damages and Compensation......................................................................................12

INTRODUCTION TO THE NATURE AND FUNCTIONS OF EXTRA-CONTRACTUAL LIABILITY (II)....................12

Pappadatos v. Sutherland [1987].......................................................................................................12

1621 CCQ...........................................................................................................................................13

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – The Meaning of Fault..13

The Reasonable Person test..............................................................................................................13

Learned Hand Formula......................................................................................................................14

Bolton v. Stone [1951] [UK]................................................................................................................15

Wagon Mound 2 (Overseas Tankship v. Miller Steamship) [1967](Australia)....................................15

Labelle v. Gatineau............................................................................................................................16

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Critique of the Reasonable Person Standard.....................................................................................................................16

Subjective elements to the Reasonable Person Test.............................................................................17

Oeuvres des terrains de jeux v. Cannon.............................................................................................18

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – The Defendant’s Abilities and Context I.............................................................................................................................................18

Role of Capacity - Children....................................................................................................................18

Ginn v. Sisson [1969] (Quebec) (see p ? for case relating to father’s fault---this is just to determine child’s)...............................................................................................................................................19

McHale v. Watson[1969] (Australia)..................................................................................................20

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – The Defendant’s Abilities and Context II............................................................................................................................................20

Context..................................................................................................................................................20

ter Neuzen v. Korn [1995] (Quebec)...................................................................................................21

Roberge v. Bolduc[1991]....................................................................................................................21

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Fault’s Relationship to Specific Norms...........................................................................................................................................22

1

Waldick v. Malcom............................................................................................................................22

Canada v. Sask. Wheat Pool [1983]...................................................................................................23

Morin v. Blais [1977]..........................................................................................................................24

Roberge v. Bolduc (same as above)...................................................................................................25

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Introduction...........................................................25

Special regimes - MODIFICATIONS OF FAULT........................................................................................25

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by the Acts of Others (I) 29

Parents..................................................................................................................................................29

Articles 1459-1462 CcQ.....................................................................................................................30

Gaudet v. Lagacé [1998]....................................................................................................................32

Ginn v. Sisson [1969]..........................................................................................................................32

Statute lists the factors that are to be taken into account in the determination of fault (restrictive list).....................................................................................................................................................33

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by the Acts of Others (II)..................................................................................................................................................................34

Employers..............................................................................................................................................34

a. 1470...............................................................................................................................................35

Ira S. Bushey v. United States [1968].................................................................................................36

Le Havre des Femmes v. Dubé...........................................................................................................37

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by the Acts of Others (III)..................................................................................................................................................................37

Bazley v. Curry...................................................................................................................................37

Jacobi v. Griffiths................................................................................................................................39

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by Things.......................41

Articles 1465-1467 CcQ.....................................................................................................................41

Rylands v. Fletcher.............................................................................................................................41

Doucet v. Shawinigan Carbide...........................................................................................................44

City of Montreal v. Watt and Scott....................................................................................................45

a. 1465...............................................................................................................................................46

a. 1466...............................................................................................................................................46

a. 1467...............................................................................................................................................46

1468 CCQ...........................................................................................................................................47

2

Lambert v. Lastoplex..........................................................................................................................47

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Nuisance / Trouble de voisinage............................48

976 CCQ.............................................................................................................................................49

Drysdale v. Dugas..............................................................................................................................49

Appleby v. Erie Tobacco.....................................................................................................................50

Canada Paper Co. v. Brown................................................................................................................51

Miller v. Jackson.................................................................................................................................51

CONAGHAN AND MANSELL.............................................................................................................................52

ESTABLISHING A CAUSAL LINK – Approaches to Assessing a Factual Link (I).............................................53

THE ‘CONDITIO SINE QUA NON (“BUT FOR”) TEST................................................................................53

Causation and its general difficulties:................................................................................................53

1. Plurality of causes.........................................................................................................................54

Impact of burden and standard of proof...........................................................................................55

**ANOTHER TRY AT SUMMARIZING FACTUAL CAUSATION*** (compliments of Khoury)........................56

INHERENT UNCERTAINTY IN CONNECTION TO CAUSATION..............................................................57

2. PRESUMPTIONS (e.g. based on risk)..............................................................................................58

3. LOSS OF CHANCE..........................................................................................................................59

INHERENT UNCERTAINTY IN IDENTIFYING THE WRONGDOER..........................................................59

Barnett v. Chelsea..............................................................................................................................60

Athey v. Leonati.................................................................................................................................61

ESTABLISHING A CAUSAL LINK – Approaches to Assessing a Factual Link (II)............................................62

Resurfice Corp. v. Hanke,...................................................................................................................62

St-Jean v. Mercier..............................................................................................................................62

Gburek v. Cohen.................................................................................................................................63

Bailey v. The Ministry of Defence & Anor – UK..................................................................................63

ESTABLISHING A CAUSAL LINK – Inherent Uncertainty in the Connection (I)............................................64

McGhee v. National Coal Board.........................................................................................................64

Snell v. Farrell....................................................................................................................................65

ESTABLISHING A CAUSAL LINK – Inherent Uncertainty in the Connection (II)...........................................65

Laferrière v. Lawson...........................................................................................................................65

Cook v. Lewis.....................................................................................................................................66

Fairchild v. Glenhaven Funeral Services - US......................................................................................66

3

Sindell v. Abbott Laboratories............................................................................................................67

INJURY – Restitutio in Integrum................................................................................................................68

Jim Russel v. Hite [1986] – Quebec....................................................................................................69

Ouellet v. Tardif [2000] Quebec.........................................................................................................69

DELIMITING THE SPHERE OF THE ECO.......................................................................................................70

According to the nature of the injury........................................................................................................70

1) Moral injury.......................................................................................................................................70

Augustus v. Gosset [1996].................................................................................................................71

a) A $100,000 cap..................................................................................................................................72

o Andrews v. Grand & Toy Alberta................................................................................................72

ter Neuzen v. Korn [1995] – Quebec..................................................................................................72

b) Limitations on admissibility of claims................................................................................................73

Curateur Public v. Hôpital St-Ferdinand [1996]..................................................................................74

Calculating compensation using same 3 conceptions............................................................................74

Tort of Battery (CML).............................................................................................................................75

Malette v. Shulman [1990] Ont. C.A..................................................................................................75

Fundamental Rights and Civil Liability - Public L / Private L divide dealing w/ ((unlawful interference))...............................................................................................................................................................76

Seneca College v. Bhadauria [1981] S.C.R..........................................................................................76

Quebec Charter of Human Rights and Freedoms – Art 49.................................................................77

Can Charter of Human Rights and Freedoms.....................................................................................77

(Delimiting the sphere of ECO according to nature of the injury)..........................................................78

2) Economic loss (Injury to ec. Interests) (PEL)......................................................................................78

Ec Loss suffered by a Secondary Victim (SV)......................................................................................78

Injury caused to SV through Primary Victim (PV)...............................................................................79

Why some systems have problems w/ ECO compensation of pure ec. Loss......................................79

Models for delineating liability – to restrict claims............................................................................80

Weller v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569...........................................80

Elliot v. Entreprise Côte Nord [1976] C.A. 584...................................................................................82

J.E. Construction v. G.M. Canada [1985] (Qc Court Ap) – not in CP but mentioned..........................82

3)Wrongful life, birth and conception...................................................................................................83

Limitations on recovery of damages..................................................................................................83

4

Types of problematic losses...............................................................................................................83

Examples of responses to problematic losses....................................................................................84

Distinction b/w CML and CVL.............................................................................................................84

5TH approach - New/developed in Bevilacqua v Altenkirk..................................................................84

MacKay v. Essex Area Health Authority [1978]– England - wrongful birth/life..................................85

McFarlane v. Tayside Health Board [1999] – UK – wrongful conception...........................................85

Cooke c. Suite [1995] (Quebec) – wrongful conception.....................................................................86

Perrush..............................................................................................................................................87

Impact of Cultural Norms and Concerns............................................................................................87

??Mass torts (personal injury) (done in first term)??.............................................................................88

According to the nature of the relationship b/w parties...........................................................................88

1)The concept of “duty of care”............................................................................................................88

1457 CCQ & Donoghue......................................................................................................................88

Role of duty in CVL liability................................................................................................................89

Donoghue v. Stevenson [1932] (UK)..................................................................................................89

Reformulation of Donoghue..............................................................................................................90

Home Office v. Dorset Yacht [1970] – UK...........................................................................................91

Anns v. Merton London......................................................................................................................93

City of Kamloops v. Nielsen [1984].....................................................................................................93

Caparo [1990](in UK only) – not in CP or PowerPoint but mentioned in class – need to know??.....93

Cooper v. Hobart [2001]....................................................................................................................94

Childs v. Desormeaux [2006]..............................................................................................................95

Palsgraf v. Long Island Railroad [1928] – US.....................................................................96

2)”Secondary” victims...........................................................................................................................98

Methods employed to circumscribe liability......................................................................................99

Alcock v. Chief Constable of South Yorshire [1991] (House of Lords) – not in CP but talked about in class and imp...................................................................................................................................100

Augustus v. Gosset [1996] SCC (CVL)...............................................................................................101

Régent Taxi v. Congrégation des petits frères de Marie [1929] SCR................................................102

3)Good Samaritan/duty to assist.........................................................................................................103

Jordan House v. Menow [1973] – SCC – not in CP but mentioned in class......................................104

Murphy v. Little Memphis [1996] – not in CP but mentioned in class..............................................105

5

Crocker v. Sundance Northwest resort [1988].................................................................................106

DEFINING THE SCOPE OF CVL LIABILITY...................................................................................................110

Revisiting the causal connection : directness and forseeability (legal causation)................................110

Factual causation.............................................................................................................................110

Legal causation................................................................................................................................110

Two techniques for assessing legal causation (scope of liability)....................................................111

- Directness................................................................................................................................111

In Re Polemis and Furness................................................................................................................111

- Foreseeability (reasonable).....................................................................................................112

Wagon Mound 1 (Overseas Tankship).............................................................................................112

Eg of directness vs foreseeability.....................................................................................................113

Falkenham v. Zwicker (Nova Scotia, 1978)......................................................................................113

Flexibility in the language of directness...........................................................................................114

Joly v. La Ferme Re-Mi [1974] CVL...................................................................................................114

Brisson v. Potvin [1948] - CVL..........................................................................................................115

Morrissette v. McQuat and Sons [1958] – CVL.................................................................................117

Flexibility in the language of foreseeability.....................................................................................118

Hughes v. Lord Advocate [1963] - UK...............................................................................................119

Tremain v. Pike (1969) UK (Lower court).........................................................................................119

RF just/fair in the case of individual susceptibility?....................................................................120

Causa proxima (one causation theory…include rest?).....................................................................120

Multiple Wrongdoers and Multiple Causes.........................................................................................121

Mechanisms to overcome hurdles both of:.....................................................................................122

1)factual connection........................................................................................................................122

2)the appropriate scope of responsibility........................................................................................122

- Divisible Injury.........................................................................................................................122

o Causal Approach......................................................................................................................122

- Indivisible Injury.......................................................................................................................122

o Multiple wrongdoers only........................................................................................................122

Solidarité / Joint and several liability.......................................................................................122

Deguire v. Adler [1963] – CVL..........................................................................................................124

6

Caneric Properties, Inc. v. Allstate Compagnie D’Assurance et Ville de Montreal [1995] – CVL.......125

o Intervening Innocent Act.........................................................................................................126

Bonnington Castings v. Wardlaw.............................................................................................126

- Novus Actus Interveniens.........................................................................................................127

City of Montreal v. Watt and Scott..................................................................................................128

Q v. Minto Management Ltd. [1985] (Ontario High Court of Justice) – not in CP but discussed in class.................................................................................................................................................129

PLACING THE VICTIM/PLAINTIFF UNDER SCRUTINY............................................................................130

Predisposition of the Victim................................................................................................................130

‘Thin skull rule’ / take your victim as you find them............................................................................130

- Discount...................................................................................................................................130

= ‘Crumbling Skull’...........................................................................................................................130

Smith v. Leech Brain [1955] – UK.....................................................................................................131

Athey v. Leonati...............................................................................................................................132

Marconato v. Franklin......................................................................................................................134

Corr v. IBC Vehicles [2006] - UK........................................................................................................135

VICTIM’S BEHAVIOUR..........................................................................................................................136

Victim’s ‘negligence’............................................................................................................................136

Allocation of responsibility..................................................................................................................137

- Historically…............................................................................................................................137

- Today: two responses..............................................................................................................137

o Apportionment........................................................................................................................137

Gaudet v. Lagacé [1998]..................................................................................................................138

o Intervening Acts (Novus Actus Interveniens) (rarely)...............................................................138

Girard v. Hydro [1987] – CVL...........................................................................................................139

Voluntary Assumption of Risk..............................................................................................................139

Waldick v. Malcom..........................................................................................................................140


Conclusions / Critiques of Tort Law.....................................................................................................142

3 Kinds of RF at dif stages of ECO analysis..................................................................................144

7

INTRODUCTION to ECOECO

- Responsabilité civil- something goes wrong –effects - accidents which cause harm / or obligations- responds to / remedy accidents

o Compensation by shifting losses ---debtor to creditor type relationship money as means of compensation

o spreading loss (insurance)- Torts

o Juridical link b/w 2 or more persons by which one owes someone else – usually in terms of obligation to repair

o In order to demand reparation – must have good reason for obligation (eg negligeance)

8

1457 CCQ

Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

- Quebec civil law doesn’t allw ECO to cover a sit in which there is a K (even if it’s food poisoning in a resto)

- Common law has no cat “law of obligations”

INTRODUCTION to the Nature and Functions of Extra-Contractual Liability (I)

Relationship b/w morality and crime

- Dif b/w Crim and ECOo Crim seeks to punish –o Although sometimes ECO used in similar way and more effective (eg OJ Simpson)

9

Notions central to ECO

- Individual resp for one’s own actions (this aspect stems from religion)- Respect for the dignity of indiv- Obligation to conduct oneself reasonably (this aspect comes from the bible

Modern conceptions of the role of ECO ---(CANE talks about these different aspects)

- Attributing resp for wrongdoingo Often times torts cases don’t actually pay damageso In countries like Can, gov often takes care of injuries w/ social security etc so often

person (guilty) not responsible for damages- Compensation

o Debate over whether ECO rules are the best way to get compensation—should compensation be ECO’s primary goal

Most wrongdoers don’t have financial means to pay ECO really expensive to operate – more than social security systems ---for both

time and resources ECO reaches a limited amount of victims b/c ECO MUST BE ABLE TO

ATTRIBUTE FAULT in order for compensation CANE – notion of those lucky enough to be injured through negligeance

rather than born w/ disability or illness- Deterrence/ Prevention

o Civil liability deters negligent behaviour -- CANE o Problems

Accidents often caused by unconscious action ---not always a conscience decision

Arg that if not deterred by personal injury how will a fine deter Also doesn’t affect corporations ---cost passed onto consumer Deterrence affected b/c of insurance – VINEY –“le responsible se cache derriere

l’insureur” but increase in premiums can deter Can raise awareness about prevention Insurance companies can take preventative measure to guard against this

--or may themselves reduce a risk b/c beneficial to them –VINEY w/ too much deterrence and too much liability –too much preventative action and

can cause over-protection which is an issue for eg. Physicians –w/ defensive medicine, too may tests for patients, -wasteful and unnecessary

-or eg of drunk drivers suing party hosts- Punishment

o Issue of punitive damages ---or should punishment be left solely to crim- Ec efficiency

o (CANE ) –more used in US ---GENERAL DETERRENCEo Notion that ECO should be trying to attain ec. efficient redistribution of losses –

protecting imp playerso Deterrence theorists not interested in compensation but in COST REDUCTION –

PUTTING COST ON PERSON WHO WILL HAVE LEAST EFFECT ON EC Instead of backward looking, look to future

10

Seeks to put costs on person most likely to prevent action (so is most likely to commit it)

Problem that this might not be the person at fault Also CANE gives eg of parking –where accident might happen if car

parked illegally and while might receive a ticket, if an accident happens, driver is attributed most of responsibility while fault is likely more of parked cars

o And this would side step issue of developing cars that resist damage better

Also arg that w/ greater costs to company causing damages –will be passed on to consumer and consumer will chose another brand/product --market controlling for future prevention of accidents/compensation

Scenario – one person sues –and company shuts down, and a large amount of people lose their jobs, gov has to give unemployment etc- could have such an effect on ec that transfer of damages shouldn’t happen according to this theory

- Non-monetary damages (restoring dignity)

Shifting losses model

3 models / approaches

- ***Individualistic / Moralist approach*** (primarily used)o Attribution of indiv resp to actors who are blameworthy

Finger pointing, compensation is just the consequence Greatly linked to attributing resp part of Torts Corrective justice

- Communitarian / Social approacho Notion that collectivity should bear burden of blame even if is indiv blameo Social resp to take care of victimso Some activities in society are more at risk than others and some indivs bear burden of

society Eg victim of vaccination –for social good –social compensation Eg society is shocked by nature of injury or amount of people injured ----like

HIV Eg work related injuries Viney talks about these things in France –and how France dealt w/

o Collectivization of risks through insurance obligations –privateo TRIGGER – Ahuntsic ---resp placed on group and group decides who’s at fault

11

o For collective response Answer questions why and if there is a source that can compensate collectively

- Instrumentalisto Could fid individualistic approach o Make choice as to what ECO should pursueo In can mostly focus on attributing resp and compensation

Residential schools

- Reparation- Eg of ECO being used where compensation wasn’t the ultimate goal ---so to educate public,

apology –also as imp precedent for eg deaf schools ---also good for getting better provision of needed therapy, accountability ---RESTORING DIGNITY

Crim, punitive damages and Compensation

- Damages o Restitutio in Integrum

- Punitive damages (exemplary)o Punishment, deterrence, preventiono But usually focus is on plaintiff ---how can sit be made better for themo CML = trad allowed but only in outrageous circumstances—outcomes tend to be low

amountso CVL = trad not available but –b/c attached to notion that punishment is under crim ---

only in sits where legislator grants right to claim under a statute (like art 49 of Quebec charter)

Controversy over whether or not money awarded should be punitive

- Completes crim’s gaps ---or we could try to reform gap- But punishment / deterrence better handled by crim courts (?)- Goals of compensation kept separate from punishment - Issue of double punishment (Pappadatos)- Windfall ---arg that if money goes to victim –they get compensation twice

INTRODUCTION TO THE NATURE AND FUNCTIONS OF EXTRA-CONTRACTUAL LIABILITY (II)

Pappadatos v. Sutherland [1987]Facts

- Sutherland tortured by Pappadatos - P sentenced to 10 years in prison under crim L, - Appeals judgement that he must pay respondent (S) $18000, $7000 of which was

exemplary damagesIssue

- Should appellant pay exemplary damages if already received crim punishment

12

(double punishment)?Held

- No (reduced damages by $7000)Reasoning

The “unlawful” and “intentional interference” requirements are met under a. 49, but since the appellant was already sufficiently punished, further punishment by way of exemplary damages was not required

“a.49 of the Quebec Charter was not intended to permit a court to award exemplary/punitive damages in a civil action where the defendant has already been prosecuted and punished for the same acts in the criminal courts.” (Rothman)

In the case that the criminal law sanctions are inadequate, exemplary/punitive damages can be granted – but in this case, the criminal law punishment (10 years in prison) was deemed adequate

(also 1621 CCQ?)Ratio:

- Exemplary damages should not be granted if there has already been sufficient punishment by criminal law courts will not allow “double punishment” since deterrence/punishment objective has already been met.

1621 CCQ

Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person.

- Also Art. 49 of the Quebec Charter of Rights and Freedoms (annexed to the CcQ)

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – The Meaning of FaultFault encompasses a variety of behaviours and is difficult to define

The Reasonable Person test

- What is the Reasonable Persono Ordinary persono Normal intelligence and skillso Has prudence as his-her guide of conducto Sometimes makes mistakes

13

Simple non-intentional act of negligence Behaviour intended to harm

o Not a superhuman or a genius / Not highest skills- Does this test reflect morality

o Ignores personal qualities of defendanto Does not require consciousness of moral wrongdoingo Does not pay attention to seriousness, dangerousness of behaviour (CANE , 180)

- How would the RP have behaved in the same circumstances?o Would the RP, placed in the same circumstances, have foreseen that his actions would

cause injury? Foresight of the reasonable person = what the defendant should have foreseen That some injury will arise out of his conduct – no need to have the precise

injury that occurred in mind Focus on conduct

That could bring about possible injuryo IF SO, what kind of precautions would the RP have taken to guard himself against

causing injury? Not all precautions are “reasonable” The RP does not take every single precaution RP may even nevertheless run the risk of foreseeable injury and take no

precaution **If foreseeable –one approach = BALANCING ACT b/w

Probability of injury arising from the risk created Gravity of potential harm

o As gravity rises, probability needs to lower Burden of being careful ((also consider the social utility of the conduct

Learned Hand Formula

- POSNER ’s version – LH = simple app of a cost-benefit analysis

o B=Cost of avoiding incidento P=Chance or likelihood that harm will culminate o L=Cost of accident if it occurso Where --- P x L = Cost that precautions would have averted

Probable = more convinced than not that a fault has been committed (>50%)

Possible = less convinced that fault was committed (<50%)

Foreseeable = usually something merely ‘probable’ is considered ‘foreseeable’ – but, can be easily manipulated to mean what it is wanted to mean

14

Judge does not have to decide fault 100% - can use a balance of probabilities –as long as it is more probable than not

Bolton v. Stone [1951] [UK]Facts:

Respondent was injured when she was struck by a ball during a cricket game The position of the playing field, the fence, the road, and the low population of the

area were such that the chances of being struck were very lowIssue: Were the appellants at fault for not preventing the accident?Held: NoReasoning:

The accident may have been foreseeable, but the degree of risk was very low – the reasonable person is expected to guard against likely or probable injuries, not “fantastic possibilities”

Lord Reid never really tackles issue of how serious the potential injury was but his overall assessment is the risk was small

Ratio:Common law will do a “balancing exercise” to determine fault – reasonable person is not expected to take precautions if the precautions necessary are disproportionate to the very low risk involved

- In which case ---only option for prevention if risk is substantial is not to undertake activity

Wagon Mound 2 (Overseas Tankship v. Miller Steamship) [1967](Australia)Facts:

Furnace oil spilled from the appellant’s ship into the harbour where the respondent was doing work on his vessel

Oil caught fire when sparks from welding fell in; fire broke out and damaged the respondent’s vessel

Issue: Was the appellant at fault?Held: YesReasoning:

It was foreseeable that oil spilling into the harbour would cause an accident (to the reasonable engineer)

15

Although the probability of a fire starting was very low (b/c of high flash point of furnace oil), the cost of the accident was high (gravity of harm is high)

The precaution (shutting off the valve) was easy to take and at a low costRatio:

Risk that is minimal (low possibility) should not be ignored if the precautions that can be taken against it are minimal (Lord Reid corrects/clarifies himself from Bolton v. Stone )

- Only risk that is “far-fetched” that can be ignored (but, does not say how to distinguish between ‘far-fetched’ and ‘minimal’)

CVL equivalent of RP – “bon père de famille” ----but still basically same as RP in CML[?]

- Deals w/ fault more generally

1457 (2) CCQWhere he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

- Under fault – 3 cats of liability = for one’s own deeds (BASED ON FAULT), for deeds of others(BASED ON FAULT OR PRESUMPTION OF FAULT), for deeds of animals and things (BASED ON FAULT, PRESUMPTION OF FAULT, OR STRICT LIABILITY)

Labelle v. GatineauFacts:

Three boys climbed over fence to get to garbage dump (not sure how high the fence was – ambiguity in factual evidence) –fence was broken in certain areas [?]

Boy fell into garbage fire.Issue: Was there fault on the part of the garbage dump? (Should reasonable person have foreseen and taken precaution to prevent injury?)Held: Yes (Yes)Reasoning:

There was foreseeability because the children had been known to go to the dump in the past – it was an attraction

Fence was insufficient in this case – should have maintained and built fence better to prevent children from coming in (does not undertake an analysis of the burden of taking precaution)

Dissent: Not clear if there was foreseeability – garbage dump not exactly an ‘attraction’ for

kids Nothing in evidence to show that the dump wasn’t properly fenced Assesses precaution in terms of burden – found that the only way to keep children

out was by building a ‘prison-like’ fence – too burdensome, so reasonable person would not have taken precaution

(this mirrors what was said in first instance)Ratio:

16

Anyone maintaining a dangerous site must take reasonable precautions to prevent entry.

- Civil law doesn’t really do the balancing exercise that common law courts do (although dissent did).

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Critique of the Reasonable Person Standard

Is the standard value-free? / Who is the reasonable person

- Type abstrait - modèle de conduite prédeterminé to which we avoid attributing the particularities affecting the

personality or situation of the person whose conduct is under review (VINEY , para462). - Personification of a social ideal ---ideally should reflect consensus of society as to social

behaviour / reasonable conduct- What about minority viewpoints ---- gender-specific values – Conaghan – feminist critique

reasonable person as alternative to reasonable man o Herbert’s fictional eg of Fardell v. Potts

Where woman isn’t found at fault b/c Reasonable Man notion was used and that no reasonable woman notion is found in CML of England ---thus a woman couldn’t possibly be expected to be reasonable

- Is the RP test abstact? ---VINEY o Stability and predictability of the lawo Avoidance of judge’s subjectivityo Minimum standard that applies to all o Philosophical premise - libre arbitre

But, is it realistic and desirable?

Subjective elements to the Reasonable Person Test- Also see (VINEY) - Both common and civil law have recognized that you must put reasonable person into the same

circumstances that the defendant was in = element of subjectivity- Argument for subjective test : If fault is about moral blameworthiness, then we should take into

account some subjective elements- Argument for purely objective test : Ensures stability and credibility of law – easy to know in

advance the standard that a person is going to be held to; do not want the standard of care to be influenced by the subjectivity of the judge; belief that this test will create a minimal standard applied to everyone

Which subjective elements are we going to take into account?

- Generally, the courts refuse to take into account “idiosyncrasies” of the defendant – most of time these relate to internal circumstances (circumstances that are linked to the person) – e.g. slow-witted, quick-tempered, absent-minded, inexperienced, memory, confidence, dexterity, maturity, etc.

17

- Generally, the courts will take into account external circumstances – e.g. weather, daylight, the state of the emergency, the activity that is carried out, the profession, place where the events happened, etc.

- Some internal elements are taken into account (but this is very limited):o Ageo Physical disabilitieso Special skills above those of an average persono Mental health – is a difficult issue – common law is very unclear; civil law is more clear

To what extent are these characteristics going to modify the reasonable person test?

- (looking at capacity and age)- Premise behind the RP test is that the person can choose between behaving well and behaving

badly; assumption is that the defendant can distinguish between right and wrong- Only if the defendant has the ability of choosing between right and wrong can that person be

placed against the reasonable person standard- Both systems have accepted modifications to the reasonable person test in assessing children,

but they do not take into account age in the same way…

Oeuvres des terrains de jeux v. CannonFacts : Two girls went to skating rink before hours and one was injured sliding down a small slope.Issue: Was the defendant (OTJ) at fault? (Did the defendant act in the same way as the “bon pere de famille”?)Held: No. (Yes)Reasoning:

Foresight: It was obvious that the skating rink was icy – court takes for granted that injury was foreseeable.

Precautions: Prudent “bon pere de famille” would still have allowed the children to play there – judge Letourneau identifies himself with the reasonable person

Ratio:- Civil law uses the reasonable person (“bon père de famille”) test to determine if the

defendant was at faultComments

- Who is the reasonable person??- Here the judge is presenting himself as the reasonable person- Note too how case is situated in time –parents don’t really send kids out to play by

themselves in the snow no

18

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – The Defendant’s Abilities and Context I

Role of Capacity - Children

- Objective element of fault = UNLAWFULNESS –in comparison to RP- Subjective element of fault = issue of oral reprehensibility --- CULPABILITY ---

o To what extent should objective statement be infused w/ subjectivity

Capacity comes to play on two levels ( for cases concerning children ):

- In discernment (civil law)o Capacity to discern b/w right and wrong –in quebec usually childre under 7 years old

don’t have capacity –also handicapped adults might not either If don’t have discernment = 2 consequences

Discernment is necessary for person to be at fault If discernment absent – conduct may be objectively wrongful

(objectively at fault) and can lead to liability of someone else (note – discernment and fault are separate requirements

o if there is no discernment, not necessary to turn to reasonable person test to determine fault (since discernment is necessary condition for fault)

o even if no discernment, reasonable person still applies and can establish fault (faute objective) (since discernment is separate from fault) –but this is also used for determining fault of guardian, no??1457 (2) CCQWhere he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.1462 CCQNo person is liable for injury caused to another by an act or omission of a person not endowed with reason except in the cases where the conduct of the person not endowed with reason would otherwise have been considered wrongful.

Ginn v. Sisson [1969] (Quebec) (see p ? for case relating to father’s fault---this is just to determine child’s)

19

Facts: Boy (son of Sisson), 6 and 9 months before turning 7, threw stone in direction of

group of girls and hurt one of them (daughter of Ginn)Issue: Was the boy liable for causing the injury, despite his age? (Was the boy at fault?)Held: Yes (Yes)Reasoning:

Criteria for assessment of fault is the ability to distinguish right from wrong Throwing stone is objectively wrong, an objective fault Boy knew that it was wrong to throw stones –was actually quite intelligent (had

discernment) – he said his father would have scolded himRatio:

Children under 7 can have discernment – as long as they can tell right from wrong Civil law will find a child liable if he has discernment and if he has committed a fault

Comments:- Standard is adjusted here as well as in McHale- Parents did not fail in their obligation to teach their son right from wrong and to

supervise him as appropriate, therefore, father was not at fault (although he did have to pay for his son’s fault). ----see p ?

- In the modification of the RP standard (common law)o Instead of asking if defendant acted as a ‘reasonable person’, both systems will ask, “did

the defendant act as a reasonable person of the same age” CVL – unusual for subjectivity to go further than age CML – sometimes court takes into account more than just age (see McHale v.

Watson ---where judge compared defendant to a child of like age, experience and intelligence

McHale v. Watson[1969] (Australia)Facts:

Boy (Watson), age 12, sharpened piece of metal and threw it in direction of a wooden post, not intending to hit anyone with it

It deflected off post and blinded a girl (McHale) standing nearbyIssue: Was the boy at fault?Held: NoReasoning:

McTiernan: Ordinary 12-year old boy with like intelligence, level of development, and maturity

of mind would not have reasonably foreseen that the sharpened metal would bounce off the pole and hurt the girl

Kitto: Boy’s actions should be judged against a standard of other 12-year olds – any other

12-year old could reasonably have made the same mistake / error in judgment, would not have foreseen the accident, and caused the girl harm

Menzies (dissent): Compared the boy’s actions against those of a reasonable man (didn’t take into

account age) (doesn’t want to adjust standard)

20

Ratio:Reasonable person test was modified to take age into account: What would a reasonable child of the same age have done? spectrum of subjectivity – modified subjectively to different degrees by different judges (although normally you won’t see the purely objective and subjective ends – courts usually only take into account age)-childhood is not an ‘idiosyncrasy”

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – The Defendant’s Abilities and Context II

Context- Emergency- Weather- Time/place- Activity and profession carried out at time alleged fault is committed- Substandard character and ability

o Law makes exceptions for persons w/ imp/major disabilities But imposes correlative obligation to be more careful when the disabled person

undertakes an activityo Law doesn’t take into account greater than avg capabilities unless the person w/ these

capabilities advertises these higher-than—avg skills Standard usually determined by experts Even if they don’t have skill but profess to have it

ter Neuzen v. Korn [1995] (Quebec)Facts:

Ter Neuzen contracted HIV through artificial insemination through infected sperm Korn failed to warn her of the risk of HIV infection from the procedure (it wasn’t

known HIV was an STD at the time) Korn also failed to properly screen donors for STD’s and follow up with donors

Issue: Should the doctor have known of the risk of HIV in this procedure? (Technical matter) Was screening/follow-up of donors adequate/reasonable? (Was the doctor at fault?)

(Non-technical matter)Held:

No Unclear – go back to first instance

Reasoning: Korn adhered to standard of medical care at the time Court did not interfere with expert testimony that determined that the doctor acted

within the reasonable practices of the time – this was a highly technical matter In non-technical matters, courts can decided that if a practice is “fraught with

obvious risks” it will be faulty – since this will require a further finding of fact, must

21

go back to first instance courtRatio:

Courts will not interfere with expert testimony in highly technical matters- Courts are willing to assess reasonability on their own in non-technical matters – i.e.

matters of common sense and practices that are “fraught with obvious risks”

Roberge v. Bolduc[1991]Facts:

Roberge wanted to buy building, asked notary to see if building was in proper order Notary (Bolduc) found that there was a defect in the transaction (mistake in title),

this was incorrect! Because of this finding, Roberge did not purchase building; vendor sued them; and

now Roberge is suing BolducIssue: Was the notary at fault?Held: YesReasoning:

Notary acted according to generally acceptable notarial standards, but this community standard was unreasonable

Given the evidence about what steps the notary could have taken to find out who owned the land, it was unreasonable for him not to take those steps, even if they weren’t standard practice

Ratio:Judges will use their own expertise to decide that a standard is unreasonable if the technical matter is related to law.

- Eg of technical –community standard norm ---judge could be expert in this case- Also eg of adherence to elementary standard of care—but where courts deem

elementary standard as unreasonable

PERSONAL WRONGDOING AS THE BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Fault’s Relationship to Specific Norms

Norms of conduct

- Statutory norms of conduct- Community norms

o Technical Where judge has some expertise Where doesn’t

o Non-technical

22

Waldick v. MalcomFacts:

Malcolms didn’t shovel or salt driveway Waldick slipped on driveway and injured himself No one in the community salted/shoveled their driveways even though required by

law.Issue: Were the Malcolms at fault?Held: YesReasoning:

Evidence did not support the existence of community standard Even if there were a community standard, it was not reasonable (obiter)

Ratio: Two questions: (1) Was there a community standard? (2) Was the standard

reasonable?(1) The onus of showing a community standard is on the defendant.

The court can find that a community standard is unreasonable and a person can be at fault even though they followed that standard.

- Eg of non-technical community standard

Canada v. Sask. Wheat Pool [1983]Facts:

Canada seeks damages from Saskatchewan Wheat Pool for the delivery of infested grain to one of the Canada Wheat Board’s grain elevators contrary to s. 86(c) of the

23

Canada Grain ActIssue: Was the Sask Wheat Pool at fault?Held: NoReasoning:

Court rejects the notion that a breach of statutory norm constitutes fault per se – it can be evidence of fault, but it is not determinative

What is determinative is the reasonableness of conduct of defendant (i.e. reasonable person standard) which falls under the tort of negligence

There was no evidence of unreasonableness in this case and there was therefore no fault

Adhered to acceptable standards of trade Board didn’t prove statutory negligence or failure to take care on the part of the Pool

Ratio: A breach of a statutory norm may be evidence of fault, but it does not constitute fault per se - Breach of statutory norm falls under tort of negligence, so the reasonable person

test applies- Didn’t prove negligence

Morin v. Blais [1977]Facts:

In 70-80% darkness, Blais was driving his tractor at 18-20 mph Morin approached from behind at 55-60 mph; he did not see Blais’s tractor soon

enough and struck its left rear wheel, swerved into the oncoming traffic lane and struck Legacé, who was approaching from the opposite direction

The red light on Blais’ left rear fender was not working (constituting a breach of regulation) and the right rear light was barely visible due to a white light on the rear fender

The Quebec Superior Court held that Blais was wholly liable, while the Quebec C.A. held that Morin was wholly liable

Issue: Is Blais wholly liable because his rear red light was not working (contrary to a statutory regulation)?

Held: Not solely liable; joint liability between Blais and MorinReasoning:

24

The function of a particular statutory regulation is important – if it establishes an “elementary standard of care”, its breach will be equivalent to fault

If the fault (i.e. the breach of statutory regulation) is immediately followed by an accident which the statutory regulation was expressly designed to prevent, it is reasonable to presume that there is a causal link between the fault and the accident

The cause of the accident was not entirely Blais’ fault – Morin’s lack of care and prudence in driving prevented him from seeing and avoiding Blais

Both parties didn’t meet reasonable standard as adapted to particular sitRatio:

In general, the breach of a statutory norm is not sufficient to show fault Only when a statutory regulation establishes an “elementary standard of care” will

breach of that regulation constitute fault Where the statutory regulation is designed to prevent accidents and the breach of

the regulation is followed by an accident, the court will presume that there is a causal link between the fault and the injury

Comments:- Dissenting opinion (De Grandpré J): Lack of the regulation red light was not the

cause of the accident – the cause was Morin’s failure to see the tractor (which should have been clearly visible), so Morin should be wholly at fault

Roberge v. Bolduc (same as above)

- Note –elementary standard of care adhered to but courts rule that elementary standard isn’t good enough

For breach of statutory norms of conduct to constitute a fault

Note also that fault is proven through RP test

25

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Introduction

Special regimes - MODIFICATIONS OF FAULTIntroduction to modified fault:

Fault is assessed differently from cases dealing with liability for one’s own wrongdoing the defendant committed no fault in direct relation with the injury

Civil law: a. 1459 and onwards deals with these special regimes (liability for the acts of others and for deeds of things/animals)

Common law: these regimes are treated differently from the tort of negligence In both common law and civil law, the fault requirement is modified within a context of special

regimes something other than fault is the requirement = “fait generateur du dommage”-goal of regimes is to assist victim

Two regimes for dealing with fault:

( Liability based on fault = default for tort of negligence etc. these others are for the special regimes)

1. Presumption of fault of the defendant: Fault of the defendant is presumed, but the defendant has the possibility of proving absence of fault

2. Presumption of responsibility of the defendant (called strict liability in the common law): Responsibility is taken for granted – defendant cannot prove absence of fault as a

defense – the law will hold the defendant liable regardless of whether or not the fault was actually committed

Only defense available is “force majeure” (or “act of God”) Deciding between presumption of fault and presumption of responsibility regimes depends on the facts of the case and the context (i.e. if it is a parent-child relationship, employer-employee, etc.)

[Liability based on fault is the general regime used in the tort of negligence]

1457 (3) CCQHe is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.1463 CCQThe principal is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his recourses against them.

Liability based on fault vs liability based on risk (–also see KEATING )

Liability based on fault = used in both the common law and the civil law Liability based on risk = defendant is found liable for creating a risk within which the damage

arose fault is irrelevant; liability is assigned on the basis of risko Idea is that people who derive benefits from creating a risk must also assume the

consequences/costs of that riskso Developed after industrializationo Idea is that perhaps the collective should assume some responsibility for the damages

that arise from those risks

26

Liability based on risk has not been adopted in Canadian common law or Quebec civil law; but in some contexts, the idea can be found to underlie the law (e.g. Automobile Insurance Act in Quebec)

Idea behind the presumption of responsibility falls within this idea of liability based on risk because fault doesn’t have to be proven (only have to prove that the defendant created the risk of damage)

But, liability based on fault is still the basic principle underlying both the common law and the civil law – so every idea that departs from this general fault-based principle must be justified

27

Liability for the Acts of others

28

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by the Acts of Others (I)

ParentsRationale (for parental liability): Because parents have authority over their children, they must assume part of the responsibility when the child causes damage to others. Parents should be liable where they have failed in their parental duties. Further, with presumption of fault, we encourage parents to take these responsibilities more seriously.

Three parties: child, victim, and parent

Action of child has actually caused the damage to the victim Victim sues parents of child (claim is against both child and parents, but chances of liquidity are

greater with the parents)

29

Common law and civil law differ: CVL: presumption of fault; CML: general (fault-based) regime under tort of negligence (except for special statutory regimes)

Civil law: Presumption of fault regime

Articles 1459-1462 CcQ

1459. A person having parental authority is liable to reparation for injury caused to another by the act or fault of the minor under his authority, unless he proves that he himself did not commit any fault with regard to the custody, supervision or education of the minor.A person deprived of parental authority is liable in the same manner, if the act or fault of the minor is related to the education he has given to him.1460. A person who, without having parental authority, is entrusted, by delegation or otherwise, with the custody, supervision or education of a minor is liable, in the same manner as the person having parental authority, to reparation for injury caused by the act or fault of the minor.Where he is acting gratuitously or for reward, however, he is not liable unless it is proved that he has committed a fault.1461. Any person who, as tutor or curator or in any other quality, has custody of a person of full age who is not endowed with reason, is not liable to reparation for injury caused by any act of the person of full age, except where he is himself guilty of a deliberate or gross fault in exercising custody.1462. No person is liable for injury caused to another by an act or omission of a person not endowed with reason except in the cases where the conduct of the person not endowed with reason would otherwise have been considered wrongful.Victim can seek compensation either through a. 1457, a. 1459(1), or 1460: (Ginn v. Sisson sought compensation through both 1457 and 1459(1))

a. 1457: fault-based regime; claim is against the child (through parents) a. 1459(1): presumption of fault regime; claim is against the parents a. 1460: those entrusted to supervision (temporarily) of child are also liable (where they are

being paid)

Under a. 1459(1), the victim must only prove:

1. Minority (i.e. below 18)2. Filiation (parental relationship)3. Act or fault of the minor:

o Fault : a. 1459: fault committed by child only if the child is capable of discernment – apply adapted reasonable person test (i.e. test of reasonable child of like age placed in the same circumstances)

30

o Act : a. 1462: must prove that the act of the minor would be considered a fault if the minor had discernment (“would otherwise be considered wrongful” “acte objectivement fautif” – i.e. fault without discernment) must pretend that defendant has discernment and then apply the reasonable child of like age test

But, this is criticized because it is difficult to imagine a child of a certain age (usually under seven) with discernment because the law recognizes that children under seven usually don’t have discernment – so how can the reasonable person test apply to someone who has no reason?!

Two ways of avoiding this problem: Use reasonable seven-year-old test? Never find child liable when child has no discernment?

o Relevance distinction between “act” and “fault”: In the case of “fault”, both the child and parents can be liable for damages. In case of an “acte objectivement fautif”, only the parents can be held liable

(child cannot be held liable without discernment). The two tests are similar – but reasonable person of like age test makes less sense in

the case of “acts”

(1, 2, and 3 replace the fault of parents – there is a presumption of fault in the custody, supervision, and education of the child)

4. Injury5. Causation between act or fault of the minor and the injury

a. 1459(1) demonstrates that the civil law adopts the presumption of fault regime for parental liability – i.e. the plaintiff does not have to prove fault on the part of the parents. The parents can defend themselves only if they prove absence of fault (still a fault-based regime) in (all three):

1. Custody (usually considered alongside supervision given their interrelation)2. Supervision – must show that they exercised custody and supervision reasonably in both the

direct and immediate control over the child at the time of the event, as well as in the general supervision of the child

3. Education – courts will look at the family situation – e.g. if the parents are good role models, if parents have tried to teach their children to distinguish right from wrong, whether there is communication, whether the child obeys his/her parents, child’s behaviour and results at school, etc.

Factors the courts take into consideration re: custody, supervision, and education:

Age of the child – if child is very young, courts will require stricter supervision and education of child, but the courts recognize that parents cannot supervise their children at all times (particularly when children are older).

Character of the child – the more the difficult and disobedient the child is, the more parents will have the obligation to supervise and educate the child.

Foreseeability is crucial – if the parents were not able to reasonably foresee that the child would act the way that she did, then the parents will never be liable.

31

Tolerance of dangerous activities – if parents have tolerated the use of dangerous objects in the past by the child, then the courts will be more severe.

Gaudet v. Lagacé [1998]Facts:

Three 12-year old boys (Steve, Michel, Daniel) went to the woods to light stuff on fire Steve was terribly burned – sues Michel and Daniel and their parents Court concluded that the three children knew that it was dangerous; they committed

a fault, there was an injury, and there was causation children are liable (including Steve)

Issue: Are the parents of the children liable?Held: No.Reasoning:

Minority, filiation, fault of minor (they had discernment), injury, and causation were proven

Courts take age into account – 12 year olds don’t need to be supervised at all times and parents do not have to lock up dangerous objects for children of that age no fault of supervision on the part of the parents

There was no reasonable foreseeability – parents were not aware that the children had planned this and the children had not done this before

Ratio: Age, foreseeability, and tolerance of the use of dangerous objects are taken into account in

assessing the parents’ absence of fault defense (concerning custody and supervision specifically)

Comments:Courts did not discuss education of children – taken for granted

Ginn v. Sisson [1969]Facts:

Boy (son of Sisson), 6 and 9 months before turning 7, threw stone in direction of group of girls and hurt one of them (daughter of Ginn)

Issue: Was the boy’s father liable for the injury caused by his son?Held: No parental liabilityReasoning:

Minority, filiation, fault of child (because he had discernment), injury, and causation were proven

Father proved absence of fault in education – taught his son right from wrong; adequate discipline

Obligation of supervision is relative – must be evaluated taking into account circumstances of time and place – concluded that a certain autonomy of a school boy is necessary

Son had never posed a problem before Parent could not have foreseen or prevented.

Ratio:Proof of absence of fault in education, custody, and supervision of the child is enough to ensure

32

that the parent is not liable.

Common law: Tort of negligence (fault-based regime) – except Manitoba and Ontario

No presumption of fault – still a fault-based regime under the tort of negligence (except for Manitoba and Ontario) plaintiff must still prove:

1. Duty of care2. Fault (of parent)3. Injury 4. Causation

Manitoba Act – Presumption of fault

Liability of parents is restricted to intentional acts of the child When the act is intentional, the parents are presumed to be at fault, but can defend themselves

either by proving reasonable supervision or that they exercised reasonable efforts to convince their child not to engage in the activity that led to the damage

Compensation is limited to $7500 Can only claim for material damages (physical injury is covered under general regime under tort

of negligence) Deliberate behaviour

Ontario Act [p. 313] – Presumption of fault

Can only claim for material damages (physical injury is covered under general regime under tort of negligence)

Parents will not be liable if they can prove:o Reasonable supervision overt the child at the time the child engaged in the activity that

caused the loss or damageo They made reasonable efforts to prevent or discourage the child from engaging in the

kind of activity that resulted in the loss or damageo The activity that caused the loss or damage was not intentionalo Intentional behaviour

Statute lists the factors that are to be taken into account in the determination of fault (restrictive list).

33

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by the Acts of Others (II)

EmployersTwo ways in which employer can be liable for damage caused directly by an employee: (similar in both the common law and the civil law)

1. General regime: a. 1457/tort of negligence: fault-based regime (would have to prove fault of employer, injury, causation, and duty to act with care in common law)

o could prove that the employer told the employee to act negligently or that the employer committed a fault in hiring the employee (but these are very difficult to prove)

2. Strict liability/presumption of responsibility: a. 1463/tort of vicarious liability – do not have to prove fault of employer (strict liability/presumption of responsibility applies if conditions for this claim are met)

o absence of fault is not a defense (but Act of God/Force Majeure could be defense)

Justification for vicarious liability: no consensus, still evolving, but there are five general ones:

1. Presume that if the employee has caused injury to third party, there must have been a fault in the choice, in the supervision, or in the control of the employee (this justification is no longer used because now there is reduced liberty to choose, supervise, and control employee; and it doesn’t matter if employer has committed fault because there is already presumption of fault)

2. Legal substitution - Some consider that an act of employee is an extension of an act of the employer (but this justification is rarely used because of presumption of fault of employer)

3. Protection of victims – should give victim a debtor that is insured and solvent (deepest pockets)(usually employees don’t have insurance) to increase chance of compensation of victim’s loss, place liability on employer (but the courts sometimes reject this as a sufficient justification)

4. Employer takes profits and benefits of enterprise – therefore, it should also absorb the losses (liability of employee should be considered loss)

i. this is a preferred view5. Enterprise must bear the consequences of the risks it creates (example of strict liability regime)

– predominant/most modern view (Bazley/Children’s Foundation, Jacobi, Ira Bushey)

Civil law: a. 1463 – presumption of responsibility

1463 CCQThe principal is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his recourses against them.

Must show:

34

1. Principal-Agent(employer)/Servant relationship(employee) can use the test of subordination – “Is the employer empowered to give precise and

specific orders and instruction on the aims pursued in the employment, on how to do work, and when and where to do the work?”

i. – “Independent contractors” will not engage vicarious liability (note: relationship is more difficult to prove in the modern world – employees are more independent, highly-skilled – not being told how to do the work)

2. Fault of Agent/Servant (no need for principal to be at fault)3. Fault committed in the performance of his/her duties connection between fault of agent

and employment in questiono Was there a benefit or interest of principal or personal interest of agent/servant ? if

there is benefit to the principal, then there is the connection; if the benefit is exclusive to agent, then there is no connection to principal

o Applies even if: Act was criminal or intentional wrongdoing Negligence or lack of competence Disobedience to orders Outside of time and premises of employment No benefit is actually given to employer

o E.g. Vaillancourt – drastic example where shooting was in interest of HBC because of asserting authority over other employees

1, 2, and 3 replace proof of fault of principal

4. Damage5. Causation

This is a presumption of responsibility regime – cannot prove absence of fault as a defense; must prove “force majeure”/ “superior force” (a. 1470)

a. 1470:

A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.

A superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.

Common Law: Tort of vicarious liability (strict liability)

Must show: (Do not have to prove duty of care)

1. Employer-Employee relationship Element of control is the test – employer must be empowered to give precise and specific orders on what to do and how to do it (subordination test)

2. Fault of employee3. Fault committed in the course of employment

o CML also uses benefit or interest of employer

35

o Connection between employee’s wrongdoing and employment ( Salmond test ) Authorized Acts (employer is liable) Unauthorized mode of committing authorized act – wrongful, intentional,

criminal (employer is still liable) Conduct so unconnected to employee’s job as to be separate from it (only in

this category will the employer not be held liable) Difficulty in distinguishing between authorized acts and “unauthorized mode of committing authorized act”

Bazley and Jacobi tried to establish a clearer test – 2-step test :

(1) Look for precedent(2) If there is no equivalent precedent, must ask if vicarious liability should be imposed

in light of broader policy rationales? a. policy objectives are fair compensation and deterrence (and Binnie J

added fairness to employer) b. court must ask if the employed had significantly increased the risk of

harm in light of these policy objectives 1, 2, and 3 replace proof of fault of employer

4. Damage5. Causation

Ira S. Bushey v. United States [1968]Facts: Seaman (employed by US) returned drunk to a ship being repaired on the dry-dock and turned valves – resulted in a ship sinkingIssue: Should the government be held liable for the seaman’s actions?Held: YesReasoning:

Court rejected the argument that the employee’s actions do not serve any purpose of the employer

Policy reasons unable to justify vicarious liability:o Suggestion that imposing liability will allocate cost and achieve deterrence by

forcing enterprise to screen employees better – but court does not think that this is a good reason –isn’t convinced that it will actually deter

o Imposing liability will give victim a better debtor – but court decides that this is not a sufficient reason

Instead, main justification for imposing vicarious liability: the risk that led to damage was foreseeable and was linked to employment foreseeable risk was that some damage could be caused by seamen

Ratio: Vicarious liability will be justified if the employer created foreseeable risk that led

to the damage.Comments:

- But, justifying strict liability regime with idea of foreseeable risk relates to notion of fault and we are in regime of presumption of fault (can be confusing).

36

Le Havre des Femmes v. DubéFacts:

Havre – non-profit organization helping women with emotional problems Employee of Havre knew Dube’s problem with alcohol and that Dube had a

substantial amount of money Havre policy not to have beneficiaries over to personal residence Employee invited Dube to live with her; during this time, employee convinced Dube

to “lend” her $27 000Issue: Was the Havre vicariously liable for Dube’s loss?Held: NoReasoning:

a. 1457 regime: Court rejected that there was fault on the part of the employer – no fault in hiring process, did not have to tell clients that there was risk of extortion

a. 1463 regime: That it was a criminal act and that it was in direct disobeyance of policy are irrelevant. However, fraud committed was not in the interest of employer (the act was for the employee’s sole benefit); the act committed was so far removed from her tasks that the behaviour was outside the course of employment.

Ratio: - In assessing if there is a connection between the fault and the performance of the

employee’s duties, the civil law asks if there was a benefit to the employerComments

- Eg of FAULT COMMITTED IN THE PERFOMRANCE OF HIS/HER DUTIES –OR NOT IN THIS CASE

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by the Acts of Others (III) Common law:

Salmond test:

1. Authorized act 2. Unauthorized mode of committing authorized act3. Conduct so unconnected to employee’s job as to be separate from it

(first two makes fault lie in course of employment, third one separates fault from course of employment) But, how to distinguish between (2) “unauthorized mode of committing authorized act” and (3) “conduct so unconnected to employee’s job as to be separate from it”? (McLachlin in Bazley v. Curry comes up with a further test)

Bazley v. Curry

37

Facts: Curry, employee of Children’s Foundation (a home for emotionally troubled children), sexually abused Bazley while under his care. Foundation encourages its employees to act as father-figures to the children and develop an intimate relationship.

Issue: Is the Children’s Foundation vicariously liable? (Was the fault committed in the course of Curry’s employment?)Held: Yes (Yes)Reasoning:

Uses Salmond test as starting point, but since Salmond test does not distinguish between the last two categories, devises new test (see Ratio)

Finds that there is no precedence that is close enough to this case, but there is a common feature that the employer’s enterprise created risk of fault on part of employee

Five factors in assessing risk : 1. Nature of employee’s job was to become close to children2. Employee was not trying to achieve employer’s aims in committing fault3. The fault was linked to the intimacy created between the employee and the

victim4. The employee was given a parental role through his employment5. Children at the home were vulnerable

Ratio: Two-step test to supplement Salmond test :

o Precedence: Does precedent unambiguously tell us where current case falls?o Policy considerations: If not precedent, should VL be imposed in light of

broader policy objectives? Has employer created or significantly increased risk? (showing

connection to employment)

weighed against

Other policy factors: Fair compensation: Providing the victim with a solvent defendant. Deterrence: Enterprises will try to prevent these acts from occurring

again. Fairness to employer: Don’t want to place an undue burden on the

employer. (more developed by Binnie J in Jacobi) General principle : If employer has created or enhanced the risk of the wrong happening,

then there will be a significant connection between the fault and the employment in deciding if there is vicarious liability, first ask if the enterprise created or enhanced risk; if yes, then have to see if this response is consistent with the policy considerations

Five factors in assessing risk : 1. Opportunity afforded to employee to abuse power 2. Whether was employee furthers employer’s aims (same as previous test)3. Extent to act is related to friction, confrontation, intimacy, etc. inherent in

enterprise 4. Extent of power conferred to employee in relation to victim 5. Vulnerability of potential victims to exercise of employee’s abuse of power

Non-profit organizations are not immune from vicarious liability

38

Comments:Takes for granted that fair compensation can be achieved even though this is a non-profit organization.

Jacobi v. GriffithsFacts:

Griffiths sexually abused children outside of hours and place of employment Employee’s job was less “parental” than Bazley (employee was mostly in charge of

taking care of the children and being a role model, no real intimacy)Issue: Should the Club be held vicariously liable?Held: NoReasoning:

Binnie finds that test is not met from facts in the caseMcLachlin (dissenting): finds that factors do meet test No precedent Five factors for risk:

1. Yes, trust relationship/adult mentoring afforded employee the opportunity to abuse power

2. Act was not to further employers’ aims – but the development of a trust relationship was business of employer

3. Yes, the Club encourages intimate relationship to develop between Griffiths and the children

4. Enterprise afforded “god-like” authority to Griffiths5. Troubled teenagers were vulnerable

Policy considerations: Fair compensation – not judged solely on ability to pay, but also in terms of

internalizing the risk created. Deterrence also served by holding employer liable even though this is a non-

profit organization.Binnie (majority): Finding the Club vicariously liable would force/prompt a lot of non-profit

organizations who have as a role the mentoring of children to close their doors Precedence – cases show strong reluctance to impose vicarious liability for sexual

abuse by employees Five factors for risk were not met employer did not create/enhance risk

1. Griffiths was never supposed to be alone with the children (so no opportunity for abuse of power)

2. Intimacy and favouritism was against policy and not in interest of employer3. 4. 5. No inherent element of intimacy close to situation in Bazley

risk/vulnerability was not created or enhanced by enterprise Physical contact was minimal (different from Bazley) Not part of Griffith’s job to entertain children at home after hours;

mother gave permission for child to go to his house Act is contrary to moral values that the Club was trying to uphold

Policy considerations: Fair compensation – would not be achieved for non-profit organizations –

39

they have no ability to pass this cost onto someone else (e.g. consumer or taxpayer).

Deterrence – should be achieved by prison sentence (but this is deterrence of employee, not employer! – but can be seen as argument that if prison is not deterrent, then employer will not be able to do anything)

Ratio: Reluctance to hold non-profit organizations vicariously liable

Comments:Different result from Bazley v. Curry – different relationship formed between plaintiff and defendant

--((don’t use 1463 for vicarious liability ---only for employee if at fault, if employer is at fault sue under 1457 – negligence [?????]))) yup, pretty sure about this b/c then you wouldn’t really be suing the ‘employer’, you would just be suing another person

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Liability for Injury caused by Things

Articles 1465-1467 CcQ

40

1866 was the year that started it all in both the common law and the civil law

Categorization:

In Quebec (CVL):

- In the first instance, any injury caused could be sued for under the general liability regime (CCQ 1457).

- However, there is a special regime (CCQ 1465) for the deeds of things (all things) which carries the presumption of fault.

- A further special regime (CCQ 1466-7) for the deeds of animals and immoveables (mostly buildings) exists within it which carries a presumption of responsibility.

- There also exists another special regime (outside of the realms of the first two that deals with annoyances of neighbourhood (voisinage). There it is still debate about whether it carries a presumption of responsibility.

In CML:

Rylands v. Fletcher is a strict liability (presumption of resp) regime within negligence (in terms of needs of fault of act). This is beside nuisance, also in the negligence category.

Common law:

General regime: Tort of negligence (must prove duty of care, fault, injury, causation) – CVL – presumption of fault

Rule in Rylands v. Fletcher (was a case, has since become a tort)

JOSSERAND – focus on risk creation ---if thing causes risk owner is at fault --***stricter form of product liability

Rylands v. FletcherFacts:

Rylands was running a mining operation on lands adjacent to where Fletcher built a reservoir

In building the reservoir, Fletcher’s engineers discovered old shafts, but continued construction regardless and did not inform Fletcher.

Fletcher’s reservoir burst into the mining shafts below, causing severe damage to Ryland’s mining operation.

At trial, the defendants were found not to be at fault, having taken all reasonable care (although his contracted builder did not)

“Thing” = water in this case

The rule:

Blackburn J: “The person who, for his own purposes, brings onto his land, and collects and

41

keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape”

Three conditions in this rul e: 1. Thing was not naturally on the land: defendant brought the thing onto the land

and the “thing” escapes not in the normal course of nature (i.e. it escapes in artificial or foreign way)

2. Thing is likely to do mischief if it is escapes (this is a relatively easy condition to meet when looking in retrospect at mischief already occurred)

3. Thing must escape from a place where defendant has control to a place where defendant has no control (courts were originally very liberal in this condition)

If these three conditions are met, then a strict liability regime will be imposed – i.e. “in at his peril” implies that whether or not the defendant took precautions is irrelevant, so absence of fault is not a defense (his only defenses are “force majeure”/”Act of God” or fault/act of a third party)

Note: this 1st condition has been modified with subsequent jurisprudence (see Lord Cairns’ decision)

House of Lords: Generally agrees with Blackburn J (i.e. that strict liability regime should be imposed), but when trying to rephrase the conditions, they changed slightly what was said: Lord Cranworth : “If a person brings or accumulates on his land anything which, if it

should escape, may cause damage to his neighbour, he does so at his peril. If it does escape and cause damage, he is responsible however careful he may have been and whatever precautions he may have taken to prevent the damage.”

eliminates any doubt that this is regime of strict liability Lord Cairns : “If the defendant used their close for a non-natural use – for the purpose

of introducing into the close that which, initial natural condition was not in or upon it, and if as a consequence of doing so the thing came to escape, the defendant were doing what they were doing at their own peril.”

strict liability regime, but also introduces the idea of “non-natural use” – simply meant that the thing was not naturally on the land (therefore doesn’t really change Blackburn’s test) BUT… subsequent jurisprudence used “non-natural use” to render Rylands v. Fletcher much more restrictive than was originally intendedDevelopment and current application of Rylands v. Fletcher

Theoretically, the three conditions are quite flexible; on the face of them, the courts could have chosen to apply them liberally and could have transformed them into a general regime for the liability for the deeds of things… BUT, the courts decided to read Rylands v. Fletcher narrowly by applying the three conditions restrictively eventually “non-natural use” came to be interpreted as dangerous use so the bringing of the “thing” onto the land had to be dangerous (although that’s not what Rylands v. Fletcher had said originally)

The regime set out in Rylands v. Fletcher was also restricted through the introduction of new defenses (beyond just the “Act of God” defense). Although they didn’t accept absence of fault as a defense, the courts did admit other defenses.

Development of tort of negligence and tort of nuisance have eventually covered much of what Rylands v. Fletcher covered initially

42

Policy considerations (avoidance of strict liability) and uncertainty about deeds of things vs. human intervention could also be argued to have led to avoidance by courts of Rylands liability.

Because of these three factors, Rylands v. Fletcher was applied less and less and, today, it is rarely used in the common law… BUT, it is a tort that still exists – it had the potential to be a broad tort, but because of historical developments, it is the most limited tort that exists today in CML.

Civil law:

Two civil law traditions (France and Quebec) felt compelled to create a special regime around the same time due to the industrial revolution

- with industrialization, use of machines increased and new machines were created and more workers were injured by these machines,

- but the problem was that under the regime of a. 1053, CcLC, workers had to prove that the injury caused by the machine happened because of a fault of the enterprise (this was difficult to prove and thus many workers could not get compensation).

The courts created this special regime through a novel interpretation of existing code articles (1054(1) and 1054(6)). This was abnormal due to interpretation of introductory paragraph as establishing a separate regime and civilian tradition that avoids creating law through jurisprudence.

43

Doucet v. Shawinigan CarbideFacts

- Worker operating furnace and ended up having eyes burnt –sues for damagesIssues

- Is employer resp for accident that occurred to one of workers while they were using the company’s equipmen?

Held- yes

Reasoning Link to JOSSERAND article –regardless of fault the owner is liable Sir Fitzpatrick: 1054(1) as presumption of responsibility (strict liability) based on

risk/guard (custody) Girouard: No presumption of fault under 1054(1).

o But fault has been proven in the case at bar Anglin

o Defect does not necessarily entail faulto No direct evidence of fault / Mere occurrence of explosion does not lead to

inference of negligenceo Sees value of applying par. 6 to par. 1, but declines to do ito Seems to favour presumption of responsibility but no need to determine if

absence of fault because the defendants provided no absence of fault Idlington

o He finds the defendant liable but uses principles of evidence to do this This principle sis not used any more, but the mechanism behind it is

used in evidence o Presume fault based on ‘factual presumption’ (res ipsa loquitur)

When courts don’t have direct evidence of a fact but general clues of the existence of a fact they can infer the fact

o Not reversed by defendant Duff (dissenting)

o No direct evidence of fault (contra trial judge) o No inference of fact (factual presumption) possible

The court thus decided that there is a legal presumption of fault given that paragraph 6 applied to paragraph 1 – this has been the story since then

o Absence of fault may be used as defence

City of Montreal v. Watt and ScottFacts:

Sewer running along respondent’s premises; respondent’s cellar was connected to the sewer

Sewer became full and overflowed into the cellar SCC: sewer became full because of “Act of God”, so the City was not responsible for

the damage; SCC decided that the defendant would only have to pay half of the

44

damages calculated by the trial judge (the plaintiff could have avoided some of damage, so they were partly responsible)

Issue: Is the City of Montreal liable for the damage caused by the sewer system? (Does a. 1054(6) apply to a. 1054(1)?)Held: Yes (Yes)Reasoning:

Reviews divergence of opinions and takes the position in favour of applying par. 6 to par. 1

Therefore concludes that if the storm was indeed a force majeure and if the appellants have shown that they constructed a sewer in a way that is reasonable, then they can show absence of fault (under par. 6)

However, the City of Montreal does not show absence of fault because the court identifies different precautions that could have been taken

Note: Court never required Watt and Scott to prove faultRatio:

a. 1054(1) sets out a more general regime for the deeds of things.Decides conclusively that a. 1054(6) applies to a. 1054(1) and thus it is a presumption of fault regime (not presumption of responsibility regime) that is adoptedComments

- affirms decision from Doucet v. Shawnigan Carbide

CcLC CCQ

a. 1053 a. 1457 General regime – fault-based regime

a. 1054 a. 1465 Presumption of fault regime

a. 1055 a. 1466, a, 1467 Presumption of responsibility regime

a. 1465: Presumption of fault for the general liability for the deeds of things (applicable to all things)

a. 1465: A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.

5 conditions must be met for a. 1465 to apply:

1. Custody – don’t need to be the owner of the thing, only need to prove power/control over the thing

2. Thing 3. Autonomous act (most difficult to prove)

a. Absence of immediate human interventionb. Dynamism

(1 to 3 replace fault)

4. Injury5. Causation

a. 1466: Special regime – presumption of responsibility (applicable to animals)

45

a. 1466: The owner of an animal is liable to reparation for injury it has caused, whether the animal was under his custody or that of a third person, or had strayed or escaped.

A person making use of the animal is, together with the owner, also liable during that time.

a. 1467: Special regime – presumption of responsibility (applicable to buildings)

a. 1467: The owner of an immovable, without prejudice to his liability as custodian, is liable to reparation for injury caused by its ruin, even partial, where this has resulted from lack of repair or from a defect of construction.

6 conditions must be met for a. 1467 to apply:

1. Owner 2. Immovable 3. Ruin (partial or total) 4. Ruin resulting from a lack of repair or defect of construction(1 to 4 replace fault)

5. Injury6. Causation

Parallels between the two systems (an attempt):

Civil law Common law

a. 1053 CcLC/a. 1457 CcQ Tort of negligence

a. 1054 CcLC/a. 1465 CcQ Rylands v Fletcher??? (If it had been broadly interpreted… but, it’s not really a parallel)

a. 1055 CcLC/a. 1466-1467 CcQ ---

a. 976 Tort of nuisance

Product Liability –also see HOWELLS and VAN GERVEN

1468 CCQ

The manufacturer of a movable property is liable to reparation for injury caused to a third person by reason of a safety defect in the thing, even if it is incorporated with or placed in an immovable for the service or operation of the immovable.

The same rule applies to a person who distributes the thing under his name or as his own and to any supplier of the thing, whether a wholesaler or a retailer and whether or not he imported the thing.

1469 CCQA thing has a safety defect where, having regard to all the circumstances, it does not afford the

46

safety which a person is normally entitled to expect, particularly by reason of a defect in the design or manufacture of the thing, poor preservation or presentation of the thing, or the lack of sufficient indications as to the risks and dangers it involves or as to safety precautions.1473 CCQThe manufacturer, distributor or supplier of a movable property is not liable to reparation for injury caused by a safety defect in the property if he proves that the victim knew or could have known of the defect, or could have foreseen the injury.Nor is he liable to reparation if he proves that, according to the state of knowledge at the time that he manufactured, distributed or supplied the property, the existence of the defect could not have been known, and that he was not neglectful of his duty to provide information when he became aware of the defect.

Lambert v. LastoplexFacts:

Lambert, an engineer, bought some lacquer manufactured by Lastoplex, and was using it in his basement.

There was no defect in the product There were 2 gas appliances with pilot lights in the next room; he turned off the

furnace and was using the product as directed The vapor and the pilot lights caused an explosion. The warning on the can said “Keep away from fire, heat and open-flame lights” and

specified that it was inflammable and should be ventilated – it was a general warning (i.e. it did not specifically warn against use near pilot lights)

A competitor’s label specifically warned about pilot lights near the working area.Issue: Is Lastoplex liable for the damages caused by the explosion?Held: YesReasoning:

General warning was not sufficient – it was too broad – the label should have been explicit about the dangers of using the lacquer in a residence that is serviced by gas

User could not be reasonably expected to know that pilot lights in the next room could cause an explosion

Competitor’s label had this specific warningRatio:

Situations in which the duty to warn will arise: o Product is placed on the market for use by the general publico Product is dangerous when it is used for its intended purposeo Manufacturer knows or should know about the danger

Public does not have the same awareness of the danger as the manufacturer

OTHER BASIS FOR EXTRA-CONTRACTUAL LIABILITY – Nuisance / Trouble de voisinageBoth systems: strict liability/presumption of responsibility

47

Both systems: concerned with the interference with the use and enjoyment of land and property (physical damage, health, comfort, enjoyment) – not really concerned with enjoyment of property rights because even if you are not the owner of the property, can still make claim

The fact that this exercise of rights is legitimate and legal is irrelevant – nuisance focuses on the consequences of the action, not the behaviour of the defendant.

sic utere tuo ut alienum non laedas: Must not use things in a way that would hurt others (i.e. use property so as to not injure your neighbour)

Courts are concerned with the balancing of conflicting rights of neighbours – to decide which right will be given priority You have to put up with an ordinary degree of inconvenience – not every interference constitutes nuisance

Common law: Tort of private nuisance

Plaintiff can be:o The owner who is actually in possession of lando The owner who is not occupying lando The tenant (but only the person who has signed the lease can invoke the action)

Defendant will be either:o The creator of the interference; oro The possessor of the neighbouring land from which the interference comes (even if he is

not the owner) Fault is usually not a condition, except when suing the possessor of the adjoining land from

where the nuisance comes from where he has no role in creating the problem Will have to prove “unreasonable interference ” to be successful – but,

o “reasonableness” is not used in the same sense as in the tort of negligence reasonableness relates to the character and extent of the harm caused

o the focus is on the nature of the injury rather than the behaviour of the defendant, which means that the defendant cannot prove reasonableness by showing that he took all reasonable precautions to prevent the nuisance (absence of fault is not a defense)

o the defendant must prove that the injury was reasonable, not that the behaviour was reasonable strict liability

Circumstances taken into account : 1. Character of the neighbourhood –tolerance should be higher in industrial area rather

than residential2. Intensity3. Duration

Nuisance must not be trivial annoyance – must last certain amount of time at a certain intensity

4. Time of day, day of week5. Zoning designation – BUT, majority opinion is that zoning designation is not really a

factor because it is the character of the neighbourhood that matters, not what it is officially designated as

6. Utility of defendant’s activity – the more useful the activity, the more likely the citizens should have to put up with the annoyance

48

7. Nature of defendant’s conduct – if the defendant acts with malice (intentionally interferes with the use and enjoyment of land), courts will be more severe

8. Sensitivity of the plaintiff – sensitivity of the land itself, of the activities the plaintiff is carrying out on the land, or of the physical or mental make-up of the plaintiff (i.e. if the plaintiff is more sensitive than average, the defendant will be more easily forgiven) – Robinson v. Kilvert – damage to cardboard boxes in neighbour’s warehouse, but boxes were deemed to be abnormally sensitive.

9. Fact that plaintiff has come to the nuisance – BUT, this argument is rejected despite Denning’s opinion in Miller v. Jackson – can make successful nuisance claim even if you came to it

976 CCQ

Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom

Drysdale v. DugasFacts:

Drysdale erected a stable in residential neighbourhood Odour, noise, and urine penetrated into the basement of Dugas Drysdale took all reasonable measures to prevent these problems

Issue: Is there nuisance?Held: YesReasoning:

Plaintiff suffered discomfort which is an interference with the ordinary enjoyment and use of property

Value of his property decreased because of the odour, noise, urine a. 1053 CcLC covers abuse of rights The fact that the stable was built in a residential area is an important factor

(standard of tolerance was lower) Coming to nuisance argument is irrelevant Gwynne (dissenting): Public policy argument: if this case constituted a nuisance, then there would be no

more stables in all of Montreal (because the defendant took all precautions necessary)

Ratio: Physical injury/damage more likely to constitute nuisance (in this case it was the

depreciation of the property value) Coming to the nuisance is irrelevant in the civil law

Factors considered by the civil law: character of the neighbourhood, damage to property (depreciation)

49

Appleby v. Erie TobaccoFacts:

Erie’s factory produces an unpleasant odor that interfered with Appleby’s enjoyment of the neighboring property

Erie contends that their lease entitles them to carry out such activities.Issue: Was there nuisance? What was the appropriate remedy?Held: Yes. Injunction – give defendant six-month period to adjustReasoning:

The odor is highly disagreeable and it does not need to be a health threat so long as it interferes with the plaintiff’s enjoyment of his premises.

The fact that the defendant acted reasonably is no defense There is no standard applied across all localities, but the standard may change

according to the locality Damages might be adequate when the interference is with the value of the property;

but when the interference is with the use and enjoyment of the property, then damages are not adequate

Ratio: Discomfort is enough to constitute a nuisance (does not need to be a health threat)

Injunctions are appropriate remedy for interference with use and enjoyment of property (damages are not enough)

Canada Paper Co. v. BrownFacts:

Brown owned a summer residence (ancestral house) Sought an injunction against a pulp mill because of the fumes Defendant used sulfate which produced the fumes

Issue: Was there nuisance? Should an injunction be granted?Held: Yes. Yes.Reasoning:

Nuisance? Enjoyment and use of property is affected to a substantial degree – odours and gases

emitted were so offensive that they materially interfered with the ordinary comfort of the plaintiff

Injunction?(Anglin) Granting the injunction will not cause the activities of the defendants to stop – they

can find alternatives (e.g. by making the sulfate somewhere else)(Duff) Impact on defendant will not be that great – company/industry will continue to

operate and defendant will not have to leave town because of the injunction Interests of both parties must be taken into account (although residents’ interests

prevail)Ratio:The courts will take into account the interests of the defendant in deciding whether or not

50

to grant an injunction – the fact that the defendant’s operation would not be seriously affected was a factor in deciding to grant the injunction

Miller v. JacksonFacts:

Millers bought a house on the edge of a small cricket pitch. Balls are not infrequently hit into their garden and have damaged the house, despite

the erection of an extra fence The club offered to pay all damages and take any means necessary to prevent balls

from invading, but the Millers refused and sued in negligence and nuisance and sought an injunction, which was granted in lower courts

Issue: Was there a nuisance? Should an injunction be granted as a remedy?Held: Yes. No.Reasoning:

Nuisance:(Lane): There was a risk of physical damage (whether actual or potential) Courts will conclude to the existence of nuisance if the activity has the potential to

physically hurt people (intensity) Fact that the club has remained there for such a long time is a factor (although there

is established jurisprudence that coming to the nuisance is not a defense)(Cummings-Bruce concurring): Issue is balance and Lane is correct – interference is too great on the plaintiffs(Denning dissenting): Before the real estate development was built, there was no nuisance – building of a

house next to a cricket ground cannot transform into a nuisance if there was no nuisance before (coming to the nuisance – minority opinion)

Balancing of interests of both parties – interest of cricket players is more important than interest of plaintiff Public interest vs. private interest – cricket has played there over 70 years to the benefit of the community prior to the building of the house; young people are playing cricket as opposed to doing other things; green space is also preserved; so public interest should prevail over private (utility of defendant’s activity).

Issue of property or physical damage is not really an issue because the cricket club has already offered to pay damages

Plaintiffs should have known that there would be cricket balls falling into their garden

Plaintiffs can go out, sit in front yard during cricket game – or they can move outInjunction:(Denning) Injunctions are exclusionary – should not be allowed(Cummings-Bruce concurring) Plaintiff has come to the nuisance (even though coming to the nuisance is not

relevant in deciding if there was nuisance)(Lane dissenting)

51

Damages cannot provide adequate remedyRatio:

Courts are more likely to find nuisance if there is a risk of physical damageComing to the nuisance might be relevant in deciding whether or not to grant an injunction, but the majority view is that it is irrelevant in deciding if there is nuisance

CONAGHAN AND MANSELL - Also mentions Cambridge Waters case

- Ciment du St-Laurent v. Barrette (QuéCA, 2006)- (Full text and notes on the case - which I wrote right after the case came out - posted

under “student tools”)

- The theory of risk has been rejected as a general rule in Quebec civil law: Lapierre v. PG Québec;

- Art. 976 CcQ provides for property rights, NOT personal rights;- The only remedies available for breach of this property right are “action confessoire”

and “action négatoire” which allow to require the illegal behaviour to cease;- Liability attaches without any fault on the part of the defendant, but this liability is

independent from any personal obligation;- This interpretation is in conformity with the location of art. 976 CcQ: it is in the

section on property, not in Book 5 that deals with obligations;- If one seeks the liability of an owner of immoveable property, one has to prove fault,

injury and causation. The sole proof of the abnormality of the inconvenient is insufficient

Remedies

- Injunctiono Prohibitory

Cessation of activity- Mandatory

o Requires positive steps- Interlocutory (interim)

o If serious question + irreparable harm will be suffered if no immediate intervention

- Damageso Past losseso Future losses (reluctance…)

- Abatement (‘Do it yourself’)o Only if emergency

52

o Precludes from claiming damages

ESTABLISHING A CAUSAL LINK – Approaches to Assessing a Factual Link (I)

THE ‘CONDITIO SINE QUA NON (“BUT FOR”) TESTRequirement under a. 1457 and tort of negligence and most other torts (but not required in tort of battery) It is necessary for the plaintiff to prove a link of cause and effect between the fault of the defendant and the injury suffered by the plaintiff ----balance of probabilities

a. 1457(2): Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

a. 1607: The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default.

Causation and its general difficulties:

Although it is clear that causation is a requirement in both systems, no one tells us how to assess (i.e. prove) causation (no definition of causation is given) but, in most cases, causation is relatively easy to assess

Three main problems:

1. Plurality of causes2. Uncertainty as to the chain of events3. When defendant is unidentified

1. Plurality of causes

When you know what the injury is, but there are several hypotheses as to what caused it

o Multiple cumulative causes –use material contribution test Applies when there is multiple cumulative causes in cases where but-for test is

unworkable or produces unfair results

Examples:

53

St. Jean v. Mercier: debate about the causes of paralysis: car accident or fault of orthopedist? Not enough facts to determine if neurological damage had occurred at the accident or at the hospital

Gburek v. Cohen – debate about causes of deafness: insufficient testing (fault on the part of the doctor) or natural occurrence of deafness?

2. Uncertainty as to the chain of events

Example: cases where science cannot explain the development of a disease – difficult to determine origin (etiology)

McGhee : etiology of dermatitis was not very well known – is it caused by single abrasion on skin or a series of abrasions? Didn’t know if taking of a shower would have prevented dermatitis

3. When the defendant is unidentified

Don’t know who actually committed the fault that caused the injury

Example: Cooke v. Lewis – two hunters fired at the same time, same gun, similar bullets – both at fault for firing – but only one bullet strikes the plaintiff

Causa sine qua non theory – equivalence of conditions (CVL) // but-for test (CML)

Retain as causes of an injury all the facts without which the damage would not have occurred No selection between these causes – only thing that you ask is: “would the injury have occurred

but for a certain element?” In both common law and civil law, this theory helps to identify the conditions that led to the

injury In civil law, this theory has lost favour (movement towards adequate causation theory)

Causation is usually assessed in two different steps:

1. Factual causation : asks “What happened? What factors arose to give rise to the injury?” both systems use the causa sine qua non theory in this step

2. Legal causation (next term) : selection of causes that will lead to juridical consequences (can decide that there is just one legal cause or that there are more than one) this is used to limit liability y

Impact of burden and standard of proof

- When a victim cannot prove causation, he has a problem proving both burden and standard of proof

BURDEN OF PROOF STANDARD OF PROOF

54

Actori incumbit probatio

a. 2803: A person wishing to assert a right shall prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation.

Balance of probabilities

a. 2804: Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof.

Burden of proving causation on the appropriate standard of proof is on the plaintiff if the plaintiff is not able to prove causation based on the appropriate standard, the claim will be rejected

Must prove that the existence of causation is more probable than its non existence (> 50%) must make the balance tip in favour of the recognition of causation – plaintiff never has to prove with certainty that there is a causal link (> 50% is enough, but 50% is not)

Difficulties w/ causation

Contradictory evidence

Eg St. Jean v. Mercier

Unknown cause/etiology

Eg McGhee v. National Coal Board

Several (mutually exclusive) explanations

Eg Gburek v. Cohen

Unidentified defendant

Eg Cook v. Lewis

**ANOTHER TRY AT SUMMARIZING FACTUAL CAUSATION*** (compliments of Khoury)

Basic factual causation test is but-for testo Eg. Barnett

55

Sometimes courts are dissatisfied by the but-for test b/c it leads to results they find unacceptable has lead to ‘material contribution to the injury test’ **CML**

o Eg. where fire starts b/c of two independent reasons negligent fault of a person and non-negligent short circuit

Def could argue if hadn’t lit fire, would have occurred anyways In this case PL would only have to prove that def participated in a more

than trivial (de minimis) amount/way to injury’s occurrenceo Eg. Bonnington Castings if hadn’t been for negligently

produced dust lung disease still could have happened b/c of non-negligently produced dust but b/c contributed in a more than minimal way, employer is 100% liable

Where there is causal uncertainty, task of proving causation is very challenging techniques to facilitate its demonstration

o Factual presumption(CVL)/Factual interferences(CML) Argument that many facts proven in evi points towards causal connection Often is hard arg to make

o Inferences based on increase of risk Rejected in St. Jean v Mercier used in McGhee (UK industrial disease case)

effect of showers at work for employee not clear if would have allowed PL to avoid dermatitis but it was known that would have reduced reduced risk of such a disease b/c time brick dust was on skin would have been reduced courts found causation based on that basis

o Loss of chance Laferriere v Lawson rejected this

Can’t prove dr. caused death so argue that had chance of survival at time of misdiagnosis and dr. caused this loss of chance and thus must compensate

- When causal difficulty lies in indeterminacy of defendant = very generous approaches o Cooke v. Lewis (also art. 1480) two guns but one bullet injures each def can say

wasn’t them this works on pure but-for level each def has a 50% chance of having caused injury

Solution in Can = reversal of burden of proof onto shoulders of def where def’s resp to make the balance of probabilities shift in his favour

Also eg. Sindell case in US DES drug each company had burden of proof reversed onto them and held each liable for their share of the DES market at the time

INHERENT UNCERTAINTY IN CONNECTION TO CAUSATION

56

Focus on cases where there are different possibilities for the cause of an injury, but there is only one real cause

Similar approach in both systems

In Farrell v. Snell and Laferriere v. Lawson, the plaintiff could not meet the balance of probabilities (i.e. could not meet the burden and the standard of proof)

Mechanisms to lessen the burden and standard of proof for the plaintiff: (only for cases where probability = 50%)

1. Reversal of the burden of proof2. Presumption of causation3. Loss of chance

1. REVERSAL OF THE BURDEN OF PROOF

Puts the burden of proof on the defendant – the plaintiff will only have to prove fault and injury it is up to the defendant to disprove causation

If the plaintiff has the burden of proof and the probabilities of causes are equal, the defendant wins

Reversal = If the defendant has the burden and the probabilities of causes are equal, the plaintiff wins

When should the burden of proof be reversed?

If the defendant has increased by his fault the risk that the plaintiff will suffer injury the burden of disproving causation will be on the shoulders of the defendant

Cases:

CML – McGhee v. National Coal Board o Lord Wilberforce (minoritarian): by not providing showers, the employer increased the

risk that the plaintiff would suffer dermatitis, so the burden of proof should be reversed CVL – Gburek v. Cohen

o Beauregard J (minoritarian): absence of testing in discovering if there is a problem with the plaintiff taking toxic antibiotics – court was unable to say that if there were tests, the problem would have been discovered – reversed burden of proof because the absence of tests increased the risk of injury

o But, there was no proof of increase of risk! (Beauregard took for granted that the risk was increased)

Rejected in Snell v. Farrello Rejection of what Lord Wilberforce said in McGhee

57

Both the common law and civil law have decided that the reversal of burden of proof will not be adopted in general (they were used by the minoritarian decisions in McGhee and Gburek and explicitly rejected in Snell v. Farrell)

2. PRESUMPTIONS (e.g. based on risk)

Takes for granted an element of fact that is not otherwise proven

Two types:

Legal presumptions: Presumptions that the law sets out (e.g. a. 1459 presumes the liability of parents) – BUT, there are no legal presumptions in causation

Factual presumptions: Both systems: permission is given to judges for drawing general presumptions (some elements of fact can lead to the presumption of a fact that cannot be proven otherwise)

a. 2849: Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions into consideration.

When do we presume causation?

- If the defendant has increased by his fault the risk that the plaintiff will suffer injury causation is presumed/inferred (the plaintiff does not have to prove causation)

- BUT… different from the reversal of burden of proof because if the court is still undecided (after presuming causation and listening to the defendant’s argument), the plaintiff still loses (the burden is still on the plaintiff’s shoulders)

Cases:

CML – McGhee v. National Coal Boardo Majority decision: Plaintiff should get compensation because the absence of a shower

increased the risk of dermatitis – presumed there was causation and the defendant was unable to show that causation did not exist

CVL – Gburek v. Coheno Majority decision: Presumed that hearing loss flowed from the medical treatment (not

due to some external factor), that the prolonged use of the antibiotic is dangerous (the more you use it, the more the increase in deafness), and that the failure of the plaintiff to test was a fault which could have revealed signs of the problem which could have then led to the remedying of the problem

Rejected in CVL – St. Jean v. Mercier o Gonthier (obiter): If there was uncertainty, cannot presume causation

Common law: has established that the courts can presume causation even if no medical expert could give a firm conclusion

58

- (e.g. Snell v. Farrell – no conclusive expert opinion doesn’t mean that court cannot presume a cause – Snell v. Farrell has rejected the reversal of the burden of proof, it did not reject the presumption/inference of causation)

Civil law: This presumption of causation approach was rejected in an obiter dictum by Gonthier J in St. Jean v. Mercier

3. LOSS OF CHANCE

Applies when there is < 50% chance of causation – can only sue for that percentage of the injury (not for the entire injury)

Common law: rejected!

Civil law: rejected! cannot ignore that balance of probabilities is not met – must always go back to the balance of probabilities

- Lafferiere v. Lawson

INHERENT UNCERTAINTY IN IDENTIFYING THE WRONGDOER

Situation of alternative causes – cannot choose between the two

Common law: reversal of burden of proof and “solidarily liable”

Civil law: reversal of burden of proof and “solidarily liable”

a. 1480: Where several persons have jointly taken part in a wrongful act which has resulted in injury or have committed separate faults each of which may have caused the injury, and where it is impossible to determine, in either case, which of them actually caused it, they are solidarily liable for reparation thereof.

Justifications for the reversal:

1. Willingness to assist the plaintiff partial causation is demonstrated in these cases – two causal links are involved; partial causation means that the first causal link has been proven (i.e. first causal link was that the plaintiff was shot; second causal link was who shot)

a. All defendants are identifiedb. The defendants are all at fault

2. Clear that injury is not cause by non-faulty (neutral) conduct – there are two tortfeasors, so they are both morally blameworthy unacceptable that the traditional rule will be that the plaintiff’s injury will fall in between

3. Limited number of defendants – if there are a large number, there would be no justification Victim deserves compensation – if compensation is refused, then probability of unjust compensation would be 100%; if you grant compensation, then there is a 50% that the compensation would be unjust

4. Both defendants have created a risk and the injury is a result of this risk

59

5. Both defendants have prevented the plaintiff from proving causation – Sopinka J in Snell gives this a lot of importance – reason why victim cannot prove causation is linked to the faulty behaviour of both defendants, so why impose the consequences of the uncertainty on the shoulders of the plaintiff when the uncertainty is caused by both defendants?

Barnett v. ChelseaFacts:

Barnett and 2 others drank some tea at work, and then began vomiting 3 hours later, they went to the casualty ward of the hospital The nurse on duty called the doctor, who, himself sick, told the nurse to send them

home They left, and Barnett died of arsenic poisoning.

Issue: Was there causation between the doctor’s instructions to send them home and the injury?Held: NoReasoning:

Causa sine qua non theory: “Would Barnett have died but for the doctor sending him home?” YES, because even if Barnett had been treated, it is very difficult to reverse arsenic poisoning; the antidote must be given immediately.

Ratio: Example of the causa sine qua non theory (asks “but for”?)

Comments: Civil law would have gone through the same steps in analysis

Duty of care in this case is not important

Athey v. LeonatiFacts: Athey had a pre-existing back problem. He suffered back injuries in two successive car accidents. As his condition began to improve, his doctor suggested he resume his normal exercise routine. While stretching at a health club, Athey felt a pop and herniated a disc in his back.Issue: Whether the disc herniation was caused by the injuries sustained in the accidents or whether it was attributable to the appellant’s pre-existing back problems (tortious v. non-tortious causes).Held: Defendants are liable.Reasoning:

The plaintiff must prove on a balance of probabilities that the faults of the defendants materially contributed to the injury (material contribution as a substitute for the ‘but for’ test).

The general test for causation is the “but for” test – but this is not conclusive The “but for” test is unworkable in some cases, so causation is established where the

defendant’s negligence “materially contributed” to the occurrence of the injury A contributing factor is material if it falls outside the de minimis range (McGhee)

[The court’s finding that the accidents contributed to 25% of the injury falls outside

60

the range]. He is willing to make a deduction if you can prove that the victim’s situation is already going to be bad.

It is not necessary to establish that the defendant’s fault was the sole cause of the injury – there will frequently be a myriad of other background events which are necessary preconditions to the injury occurring as long as a defendant is part of the cause of an injury (not a cause of part of the injury), he will be liable for the whole of the injury

The thin skull rule states that you must take the victim as you find him. It applies in this instance because back problems are a naturally arising disposition, even if they were not sufficient to cause the injury.

Major J. suggests that this rule is applicable because if the compensation was split between tortious and non-tortious causes, it would be too easy for the defendants to exonerate themselves. The balance of probabilities is also problematic because there are a whole host of possible contributing facts which would result in the defendant having to pay for injury which he did not cause, defeating the role of ECO replacing the victim in their original position.

The crumbling skull rule is applied when the victim is said to have an above average chance of injury. The risk of injury must be a ‘real and substantial possibility’ and a ‘measurable risk of damage’ and not ‘mere speculation.’ This is to ensure that the plaintiff is not put in a better position, but failed because the defendants failed to establish that the plaintiff adequately met this criteria.

Ratio: If a defendant’s actions can be shown to be a cause of the injury, the reward is not

reduced to account for the existence of non-tortious causes (ignore non-faulty factors).

Comment: Bonnington Castings is the predecessor of this case (UK) which says that the contribution of the defendant must not be de minimis (a non-trivial contribution, but a small contribution could be sufficient). The loss of chance argument is not so good because we are 100% sure that the defendant contributed 25% to the injury. In Laferriere we are not sure whether there was contribution on a balance of probabilities. This is not a predisposition case, because it is not clear that the hernia was actually linked to the back problems, so there was no predisposition to hernia, only to back problems, or further back problems.

ESTABLISHING A CAUSAL LINK – Approaches to Assessing a Factual Link (II)

Resurfice Corp. v. Hanke,Facts

- Ice-resurfacing machine operator- Badly burned when hot water overfilled gasoline tank of machine = explosion- Sued manufacturer and distributor of machine for damages –alleging that water and

gasoline tanks were sim in appearance and close together so easy to confuse themIssue

- Is Resurfice liableHeld

- NoReasoning

61

- The basic test remains the “but for” test. This test ensures that a defendant will not be held liable for the plaintiff’s injuries where they may very well be due to factors unconnected to the defendant and not the fault of anyone.

- The “material contribution” test only applies in exceptional cases where factors outside of the plaintiff’s control make it impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test, and the plaintiff’s injury falls within the ambit of the risk created by the defendant’s breach of his duty of care owed to the plaintiff.

supreme court says to apply but-for need 2 conditions- Uncertainty ---it must be impossible to demonstrate causation under ‘but-for’ but for aspects out

of control of victim/plaintiff ---eg of med community not advanced enough- That injury falls within ambit of duty of care of defendant ----basically defendant has created a

risk and realization flows from them KHURRY SAYS SUPREME COURT MADE A BIG MISTAKE HERE ---BIG PROBLEM HAS BEEN CAUSED BY THIS –she says = bad decision

St-Jean v. MercierFacts:

Unsure if the patient’s paralysis was caused by the car accident or the fault of the orthopedist (who failed to notice the damage to the spinal cord)

Trial judge decided that the orthopedist was not liable (no causation)Issue: Is the orthopedist liable for the injury? Held: No (no causation)Reasoning:

Court looked at both sides and was more convinced by the defendant’s theory according to the assessment of the (scientific) evidence balance of probabilities

Reject inferences based on increase of risk arg used in UK industrial disease casesRatio:

Example of the balance of probabilities (standard of proof requiring only > 50%)Causation is seen largely as a question of fact (so the higher courts are less willing to overturn trial judge decisions)

Gburek v. CohenFacts:

Patient was admitted to the hospital with a very high fever. Doctor decided to treat his infection with gentamycine, which carries with it risks of

kidney and hearing damage Doctor failed to carry out all of the tests for the levels of gentamycine in the patient’s

blood (test for kidney failure), and failed to carry out any of the audiograms, both of which were accepted practice when administering long-term doses of gentamycine

Patient went deafIssue: Is the doctor liable for the patient’s deafness? (Was there causation?)Held: Yes

62

Reasoning: Presumed causation presumed that hearing loss flowed from the medical

treatment (not due to some external factor), that the prolonged use of the antibiotic is dangerous (the more you use it, the more the increase in deafness), and that the failure of the plaintiff to test was a fault which could have revealed signs of the problem which could have then led to the remedying of the problem

Doctor could not rebut the presumption of causationRatio:

Civil law is willing to presume causation when the defendant increases the risk of the injury (although this was rejected in an obiter dictum in St. Jean v. Mercier)

Comments:Dissent (Beauregard) argues that there should be a reversal of the burden of proof

Bailey v. The Ministry of Defence & Anor – UKFacts- While in renal ward patient aspired her vomit leading to cardiac arrest that caused her

to suffer brain damage- Lack of care in resuscitating - Proper care would have led to early intervention and prevented her from becoming as

ill and weak as she became- It was the weakness that caused or materially contributed to injury, by lcak of care that

led to her being unable to prevent herself aspiringIssue- Was the party caring for her (hospital?) liable?Held- YesReasoning- NOTE restrictive Mat contribution - Medical uncertainty - Note esp para 35 onward where mat contribution is discussed- so then at issue here would be multiple cumulative causes??)---when can you apply it ---

origniated from industrial diseases issue in UK ----to assist employees in getting compensation

ESTABLISHING A CAUSAL LINK – Inherent Uncertainty in the Connection (I)

McGhee v. National Coal Board

63

Facts: Plaintiff worked in a place where there was an excessive amount of brick dust There were no showers at his workplace (contrary to statutory requirements) Plaintiff got dermatitis and sued, saying that the brick dust/lack of showers caused

his dermatitis At that time, the cause of dermatitis was unknown

Issue: Is the defendant liable for the plaintiff’s dermatitis?Held: YesReasoning:

The lack of showers increased the risk of dermatitis, so the court was willing to infer causation

The defendant could not prove that there was an alternative cause that is more likely

Ratio: Courts willing to presume causation when there defendant increased the risk of the

injuryComments:

Dissent (Wilberforce) argued that because the defendant increased the risk of the injury, there should be a reversal of the burden of prove and the defendant should bear the burden of proof

Presumption of causation

Snell v. FarrellFacts:

After an operation, Snell went blind – the loss of sight in one eye was caused by an atrophy in the optic nerve

During the operation, there were signs of excessive blood during anesthetization, which was an indication of a problem, but the doctor proceeded with the surgery.

Snell also suffered from severe glaucoma, hypertension, and diabetes. Causation was inferred by the trial court on the basis that the defendant created the

causal uncertaintyIssue: Was the doctor liable for the injury?Held: NoReasoning:

Snell’s blindness could have been caused by the doctor’s fault in continuing an operation despite the presence of blood, but also could have been caused by other factors (severe glaucoma, hypertension, diabetes) – burden of proof is on the plaintiff to prove > 50% probability

Ratio:Balance of probabilities – plaintiff must prove that there is a > 50% chance that the defendant caused the injury

64

ESTABLISHING A CAUSAL LINK – Inherent Uncertainty in the Connection (II)

Laferrière v. LawsonFacts:

Patient went for biopsy The biopsy showed signs of cancer, but the doctor did not call the patient to inform

her of the finding Generalized cancer ensued and the patient died

Issue: Did the doctor’s failure to inform the patient of the cancer cause the injury?Held: NoReasoning:

The direct cause of death is cancer. However, we don’t know if the defendant’s fault would have made a difference – she might have died anyway.

Causes were either the failure to inform or the breast cancer itself – burden of proof is on the plaintiff to prove > 50% probability

Ratio:Balance of probabilities – plaintiff must prove that there is a > 50% chance that the defendant caused the injury

Cook v. LewisFacts: Plaintiff injured by gun shot, but it is uncertain who shot the gun (can be either of

two defendants, but it cannot be both because only one bullet struck the plaintiff) – 50% chance. Both defendants are at fault.

Issue: Who should be liable for the injury?Held: The two defendants are “solidarily liable”Reasoning:

There is fault on the part of both defendants – they were both imprudent in their shooting

Ratio: Law has taken strong stance in favour of reversal of burden of proof

“Solidarily liable” = can sue either defendant for full amount (very severe towards the defendants)Comment

Canadian Solution to unidentified defendant problem= reversal of the burden of proof

– Cook v. Lewis– Art. 1480 CcQ – Justifications (see Cook v Lewis):– Partial causation is proven - risk of injury has been caused by both– Defendants are all at fault – injury is not caused by neutral conduct– D are identified and in limited number (50% chance of doing injustice)– Fault of both caused the impairment of the P’s means of proving causation

65

Fairchild v. Glenhaven Funeral Services - USFacts- Asbestos, numerous employers – caused mesotheliomaReasoning- Can’t determine which defendant, maybe all- But neither of them met duty of care so all liable- Notion that someone has to be liable- Lowered but-for threshold in terms of causal link ----it was enough that employer had

materially increased risk of harm - Applied McGhee where simply increasing risk of injury was enough - Hoffman’s 5 conditions for determining increase of risk 1)employer was under duty specifically intended to protect employees against unnecessary exposure to risk limiting it to industrial disease cases 2) duty was one intended to create a civil right to compensation for injury relevantly connected w its breach 3) established that the greater the exposure to ____ the greater the risk of contracting the disease the more you breath etc the more chances of contracting 4) mechanisms by which determine absolute cause etc can’t be determined (as in medical community knowing exact cause of disease etc) wants to have two sources –can’t know which one 5)employee contracted disease against which he should have been protected If you don’t have these too bad ----only applicable in UK -these features were also present in McGhee v National Coal Board—and referred to Comments

UK Solution to unidentified defendent= material/significant increase of risk reasoning

Justifications for departing from but-for test:– Justice and fairness (L. Nicholls, par. 36, 40) (L. Hoffmann, par. 54, 63)– Scientific uncertainty (L. Nicholls, par. 42-43)– Avoid emptying duty of content (L. Hoffmann, par. 62)– Autorities: McGhee

Sindell v. Abbott LaboratoriesFacts- DES- Women brought class actions against drug companies seeking to recover for injuries

sustained as a result of administration of drug DES to their mothers during pregnancy- Which caused cancer in daughtersIssue- Market-share liability?Held- YesReasoning- Prob that mothers didn’t keep box etc that drugs came in so didn’t know which

companies had supplied mothers- Precondition --- - (Again idea that either 100% wrong in letting victims carry some of burden or 50%

wrong by blaming wrong defendant)

66

- Justifications for pro-plaintiff stand: - D’s role in creating causal uncertainty (*cp412)- D = better cost-bearer (*cp412)

- If all Ds had “substantial” share of market:- Reversal of the burden of proof of causation = Plaintiff does not have to prove causation.

Burden reversed on all the defendants to disprove causation- +- Proportional Liability = If defendant does not succeed in proving that did not cause

injury – liable proportionally to its share of the market at the time

- Causal link b/w fault and injury b/c of increased risk [?] –is enough- Ask if contribution is more than trivial

INJURY – Restitutio in Integrum- Principle is that victim is to be put back in position they were in before cause of injury occurred

Interests Protected ---

Determination of damages- Difficult to apply and more possible in some cases than others b/c

o Difficult to foresee impact of an injury over time = hypothetical assessment + future determination

o Often impossible to translate an injury (esp bodily and moral) into monetary o ‘There is no medium of exchange for happiness. There is no market

for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one’ -- Andrews v. Grand & Toy Alberta (SCC – 1978)

- Aim o Determine what is the CONCRETE EFFECT on the victim

Eg Russell v. Hite Eg Ouellette v. Tardiff

67

- Courts will not assess compensation in an abstract way – they will try to determine the actual impact of the injury on the victim – in assessing compensation, the courts will take into account: Actual loss Specific individual situation Ability to compensate

Jim Russel v. Hite [1986] – QuebecFacts:

Hite works for Russell at a race track Hite test-drove a race car into a chained barrier resulting in the disfiguration of his

face The chain should have been lowered by Russell Hite was only 25 and in good health – the injury was mainly to his face

Issue: How do the courts assess compensation?Held: Courts can look at victim’s “capacity of gain” rather than just actual income lost.Reasoning:

Although Hite was still fully capable of being employed in certain job categories, the courts must look at the actual impact of his injuries on his life more generally.

Because the damage was to his face, the injury will no doubt affect his means of communicating and his self-confidence, which in turn affect his ‘capacity of gain’. (courts go beyond)

Violation of the victim’s extra-patrimonial rights (i.e. right to the integrity of the person) is also taken into account and is compensated for.

Ratio: The civil law grants damages for non-pecuniary/moral damages. When calculating compensatory damages, the civil law does not look only at the

income lost; it also takes into consideration the impact of the injury on the victim’s ‘capacity of gain’ (which takes into account other factors)

The civil law looks at the loss itself (rather than just employability) in determining if there should be compensation court refuses to adopt functional approach.

When assessing compensation, the courts do not do so in an abstract way – they try to look at the actual impacts of the injury; courts do assessment on individual case-by-case basisComment:- Note if Hite had been an employee he couldn’t have used ECO- Case also exemplifies use of expert physicians to determine a number to illustrate

reduction of capacity -------------court can go further in order to determine what number/reduction of capacity represents to victim

Ouellet v. Tardif [2000] Quebec

68

Facts: Tardif was swimming when he was hit by a boat driven by Ouellette’s son Tardif was a priest working as a missionary in Africa; however, he was permanently

disabled and could not return to his mission in Africa As a priest, Tardif had taken a vow of poverty and had little or no income.

Issue: How do the courts assess compensation?Held: Look at victim’s “capacity of gain” rather than just actual income lostReasoning:

Tardif had a very low income – but this is no reason for him to receive a low compensation – he should receive what his work is objectively worth (analogous to university professor)

When assessing compensation, it is the victim’s ‘capacity of gain’ that is important, not his actual income

Courts assess that the injury resulted (medically) in a 31.5% loss of physical capacity, but because the victim could not work at all, the loss of capacity of gain was actually 100%.

Even though priest was giving up income for congregation he can still claim loss of income --- it doesn’t matter if victim chooses to give up income, imp is that income is lost

Ratio: When assessing pecuniary damages, compensation is given for the loss of the victim’s

‘capacity of gain’ (not just income lost) Non-pecuniary (extra-patrimonial) damages are guided by the limits set out in the

Andrews, Thornton, Arnold (1978) trilogyHave to look at specific facts of the case when assessing compensation

DELIMITING THE SPHERE OF THE ECO

According to the nature of the injury

1) Moral injury- Restitutio in integrum can’t always truly be achieved ---compensation achieved differentially

o This difficulty exists in CVL and CML - but

CVL ----‘just deal w/ it’ CML ---- traditionally/historically more of a problem

- not reluctant to award moral damages- compensation for PURE MORAL INJURY isn’t problematic b/c it has never been problematic

- concept of moral damages hasn’t been accepted- doesn’t want to attribute price/monetary value to happiness etc- currently, moral injury isn’t a problem when it FLOWS FROM material or physical injury- although not usually give, PURE MORAL INJURY MIGHT BE COMPENSATED under SECONDARY VICTIM (SOLATIUM DOLORIS)---but this is still very problematic -note, can still be primary victim too –eg of

69

slander(???)

----see the 2006/07 summary ---for summary of historical aspect of augustus v. Gossett ----AND I THINK THAT MOTHER WON HERE BUT THIS SAYS SHE DOESN’T !? it’s b/c she wasn’t able to claim on behalf of son for moral damages but received solatium doloris for her grief

Augustus v. Gosset [1996]Facts:

Gosset, a police officer, shot victim (Augustus’ son) in the head while trying to make him stop

Gosset was running and holding his gun at the time as he chased after the victim Victim went instantly into a coma and then died soon after

Issue:- Mother tries to claim moral non-pecuniary damages on behalf of son- Was the appellant (the victim’s mother) entitled to exemplary damages by virtue of a. 49

of the C.C.Q.?Held: No (No “intentional” interference) -- she didn’t get exemplary damages but she received solatium doloris!!Reasoning:

Heirs can only claim damages for pain and suffering that the victim actually felt (if the victim went immediately into a coma, he did not feel pain and thus his heirs cannot seek damages)

a. 49: There must be unlawful interference and it must be intentional in order for the appellant to be awarded exemplary damages

There was unlawful interference – it was illegal for the respondent to shoot the victim in the head (breach of the victim’s “right to life”)

No intentional interference:o Respondent did not intend for the victim to be shot (only wanted to stop him

from running)o The victim being shot was not an immediate or natural consequence of the

respondent’s actions because this was standard police procedure Mother had no psych problems resulting from death of son but suffered GRIEF ---(in

CML Khoury says mother likely wouldn’t have won) SCC decided to develop criteria in order to limit recovery (in parent-child

relationship):o Look at the circumstances of the death of the primary victimo The age of both the primary victim and the parento Nature and quality of the relationship between the twoo Parent’s personality and ability to deal with griefo Impact of the child’s death on the parent

Ratio: a. 49 requires that there be unlawful interference that is intentional in order for exemplary

damages to be applicableo unlawful interference: Was there a breach of a right protected by the Charter?o intentional interference:

70

The person desires or intends for the consequences; or The person acts with full knowledge of the immediate and natural or at

least extremely probable consequences Example of the courts adopting the personal approach

Comments:Judgment did not question the police procedure – perhaps the ‘natural consequence’ of the respondent running and holding the gun with his finger on the trigger (i.e. police procedure) was the victim’s being shot and killed?- NOTE -- TWO CLAIMS – mother as secondary claim, and son for injury- This case recounts history of attributing moral damages in

- Note : VAN PRAAGH suggests that the loss of companionship outweighs true personal sorrow as the defining characteristic of compensated solatium doloris (p.78 CP2)

Challenges relating to recovery from moral injury

- How can victim be compensated adequately and fairly- How can exaggerated damages be avoided

How Canada has responded

a) A $100,000 cap (1978 value ---goes up w/ inflation)

- Based on trilogyo Andrews v. Grand & Toy Alberta --- became quadriplegic at young age ---Court agrees that

if injury is worse than this case, cap may be exceeded ---and this is played on in ter Neuzen v. Korn case

o Thornton v. Board of School Trustees of School District No. 57 (Prince George) o Teno v. Arnold

ter Neuzen v. Korn [1995] – QuebecFacts:

Ter Neuzen contracted HIV through artificial insemination with infected semen Korn did not warn her of the risk of HIV infection from the procedure was found

negligent in this respect Arg that injury worse than in Andrews Jury in first instance trial awarded damages in an amount that was in excess of the

‘rough upper limit’ established in Andrews CA decided that trial judge must correct the amount of the award to conform with

the rough upper limit’Issue: Should the damages awarded to the appellant be allowed to exceed the established ‘rough upper limit’?Held: NoReasoning:

71

In Andrews, it was established that it is impossible to put a money value on the non-pecuniary losses which have been suffered by the plaintiff so the award of non-pecuniary damages “is a philosophical and policy exercise more than a legal or logical one” – this injury is not so different or worse that the one in Andrews

Excessively large amounts should not be awarded once an individual is fully compensated in terms of future care and other pecuniary losses non-pecuniary damages are “inherently arbitrary or conventional”

Functional approach: the function of non-pecuniary damages is solace – to substitute for the pleasure and enjoyment which has been lost and alleviate the pain and suffering that the plaintiff endured and will endure – the amount of the award depends on the ability of money to ameliorate the condition of the victim Reduction of life expectancy decreases non-pecuniary damages – there is less time to benefit from the award

Social burdens of excessive awards – extravagant claims can pose a significant burden on society

Decision to make exception is not based solely on severity of the injuryRatio:

Andrews trilogy established a ‘rough upper limit’ on non-pecuniary damages to try and control the ‘social burden of damage awards’

Civil law will adopt the functional approach (but it says below that CVL law adopts objective (consensual approach)traditionally but also uses personal (subjective approach …so no functional ----I think this is wrong and below is right?????)in assessing the amount of non-pecuniary damages (but not in assessing if there should be compensation)

Exceptions are not made based solely on severity of injury

b) Limitations on admissibility of claims

- Not about calculating damages – admissibility = whether or not moral injury can be claimed at all - NOTE that these same conceptions are used for calculating damages- 3 theoretical conceptions

o Conceptual (or objective) approach Only if injury can be observed Consciousness of injury not relevant (you don’t have to care) Eg of Curateur Public v. St. Ferdinand

Victims weren’t conscious of moral injury ----loss of dignity -- infringed upon

CRITICISM = primitive, doesn’t look at indiv aspect to injury, not on case by case basis

o Personal (subjective) Inquires into inner beliefs and sentiments of victim Compensation based on how injury effects victim Won’t receive compensation if aren’t conscious of injury or loss **No loss of happiness/No solace possible = NO RECOVERY

72

Eg – someone in a coma can’t recover (eg. Curateur Public v. St. Ferdinand)

Past, present, future loss of happiness Eg Augustus v. Gossett --- it makes a dif whether victim died right away or not

(were they conscious of suffering) Trad used by CVL CRITICISM = personalizing feelings and putting financial value on them,

investigation into personal needed, also MORE DAMAGES AWARDED TO SOMEONE WHO WASN’T KILLED INSTANTANEOUSLY

o Functional (subjective) Recovery based on realization of injury Under this conception neither Augustus v. Gossett nor Curateur Public v. St.

Ferdinand would recover Seeks to REPLACE PLEASURES LOST ---provide alternate pleasures –

compensation only if injury can be replaced w/ something Khoury gives example of Wii replacing guitar to be given to victim w/

severed fingers Doesn’t look into feelings Doesn’t compensate for actual loss of happiness Popular in CML CRITICISM = artificial to think solace can be brought someone who has suffered

injury through replacing that which was lost - NOTE –fault is defendant based and injury is victim focussed and doesn’t have to do w/ behaviour of

the defendant

Curateur Public v. Hôpital St-Ferdinand [1996]Facts:

SNE went on an illegal strike for 33 days Because of strikes, 703 patients at l’Hopital St. Ferdinand (a hospital centre for the

mentally disabled) were deprived of care and services normally provided by the employees (that resulted in an undignified situation – left in their own filth)

Curateur filed a class action against SNE on behalf of all of these patientsIssue: Should the patients be awarded exemplary damages?Held: YesReasoning:

The strike was an unlawful and intentional interference (a. 49):o The strike was illegal – interfered with patients right to personal inviolability

and right to dignityo The interference was intentional because the whole point of the strike was to

disrupt the services and care that were normally provide to the patients – furthermore, they continued despite injunctions, fines and terms of imprisonment imposed on the SNE members.

Ratio:

73

Exemplary damages are awarded if there is unlawful and intentional interferenceComments:- Also eg where judge uses all 3 approaches are used to determine compensation ---

Conceptual, Personal, Functional- ((judge L’Heureux Dubé says going to use functional approach after to adjust

amounts?? ))

Calculating compensation using same 3 conceptions - Theoretically CML and CVL can opt for any of the 3 but generally/historically

o CVL trad favours objective (conceptual) approach Eg of Curateur Public v. St. Ferdinand

o BUT Khoury says that CVL does use Personal (subjective approach) (even at SCC level) Gives eg of Driver v. Coca Cola --where little girl killed Coke driver and heirs

claim compensation - Criticisms = see under each section above

Tort of Battery (CML)- Tailored to allow recovery for non-pecuniary damages- In CVL this falls under BODILY cat- Narrow tort- Protects PHYSICAL INTEGRITY OF BODY

o Right to this – right to be PROTECTED FORM OUTSIDE INTERFERENCE W/ BODY and to DECIDE AUTONOMOUSLY what will be DONE W/ BODY

- Prevents / deals w/ assault, physicians acting w/out your consent, or someone touching you- Need to determine that there was

o INTENT ---can’t just be that someone accidentally bumped into you (NOTE intention isn’t required in tort of negligence)

o Absence of consent (although you can have implicit consent)o Interference w/ body o Actual injury not required ---no need to prove injury beyond interference w/ bodily

integrity (eg Malette v. Shulman)o Unlike Tort of Negligence – don’t need to prove, injury, or causation

Malette v. Shulman [1990] Ont. C.A.Facts:

Dr. Shulman administered blood transfusion to Malette while she was unconscious (her life was in danger after serious car accident)

Malette was a Jehovah’s Witness and carried a card saying explicitly that she did not want blood transfusions (card’s weren’t very known at time but this case changed this)

Dr. Shulman considered information on card but decided to give her a transfusion when her condition deteriorated to a critical stage due to loss of blood he felt the transfusions were necessary to save her life and was not convinced that the un-

74

dated, un-witnessed card could be taken to represent her wishes in the face of imminent and avoidable death

Issue: Was the doctor liable in the tort of battery? Tort of Negligence?- How valid is the absence of consentHeld: Yes. No. – see belowReasoning:

No explicit refusal b/c unconscious, usually where no explicit consent and no next of kin and it’s an EMERGENCY (it was in this case) Dr. will go ahead ----but this doesn’t take card into account ------also daughter showed up after DR. had decided to go ahead

Mrs. Malette did not consent to the blood transfusion, so Dr. Shulman’s action was an intentional and unpermitted interference with her bodily integrity his belief that the treatment was medically essentially did not shield him from liability for battery

Dr. argues that it was not informed refusal + many other justifications (unfortunately it seems that Drs can be sued if intervene but also if they don’t)

Right of self-determination includes right to refuse medical treatment, even if foolish/unwise

No negligence because the doctor’s treatment was competent and carefulRatio:

Right of a person’s self-determination include the right to refuse medical treatment for whatever reason (Autonomy)

Emergency situations: the doctor does not need informed consent in cases where:o The patient was unable to make the decision and no one legally authorised to

represent her could do soo Prompt action is essential and getting consent within available time is

impossiblo Under these circumstances, a reasonable person would consent and the

probabilities are that the patient would consent if she could.But – this exception does not apply when the patient explicitly denies a certain treatment --- if refusal expressed in advance (eg via card) –creates obligation that physicians must respect –even if they save the life of patient (as in this case)- Card becomes ABSOLUTE where if carrying it Dr. must abideComment- This is not abided by in France if life depends on interference of Dr. - NOTE CML doesn’t make distinction b/w bodily and moral --where Malette has both

bodily and moral component

- NOTE that calculating compensation is for moral damages under Tort of Negligence and doesn’t apply to Tort of Battery ---Malette was under Battery

Fundamental Rights and Civil Liability - Public L / Private L divide dealing w/ ((unlawful interference))- Where Private L is dealt w/ by ECO and the Tort of Battery, Public L also deals w/ issues surrounding

physical integrity etc through humans rights protection by Charter and statuteo Eg of Seneca College

- Can a claim be made under infringement of rights and freedoms protected by Public L and also under ECO?

75

- Is the breach of a right or freedom protected by Public L considered a fault/negligenceo Depends on the nature of the injury --- ECO will sometimes step back from

Eg. Moral injury nor accompanied by anything else (material etc)

Seneca College v. Bhadauria [1981] S.C.R.Facts: B applied for numerous jobs at SC, and though qualified, never received an interview or reason for rejection. She claimed this was because she had been discriminated against as a woman of East Indian origin. She is seeking damages in tort law and also filed a suit under the Ontario Human Rights Code.Issue: Does a breach of the Human Rights Code give rise to damages under civil liability?Held: No.Reasoning: Laskin J.

Discrimination does not give rise to a tort action when a process of remedy under the OHRC already exists.

OHRC is actually a bit unique in that it provides extensive compensation –so not that great of an idea to try both in this case

Lawyer argues that a new tort for infringement of rights should be created but…. The court says that if were to recognize another tort it would be one of strict liability

(no fault) -b/c the only way to justify this kind of regime is through a test of REASONABLENESS (that there was a reasonable reason for act) ---(and court definitely not willing to create a tort of strict liability) - reasons = 1) comprehensiveness of OHRC (p183 of case) 2) fact that need to differentiate breach of statutory norms (would use Sask Wheat Board here) vs breach of ordinary statutes (which may give norms of behaviour) –this means statute breached and civil cause of action is founded 3)court believed intention of legislator (of OHRC?) that this be the sole way for remedies The OHRC provides for an administrative inquiry and remedial relief. ---very

comprehensive The Code excludes a common law action based on an invocation of the public policy

expressed in the code. There is a narrow line between founding a civil cause of action directly upon a

breach of a statute and founding a civil cause of action at common law by reference to standards reflected in and by the statute.

There is a difference between applying standards of behaviour based on a statute, and creating an obligation where there is no duty of care.

Ratio:You cannot stretch the duty of care such that it creates an obligation by judicial fiat --- (??) Comment- This case raises the issue of the relationship b/w ECO and public L on human rights and

freedoms

Quebec Charter of Human Rights and Freedoms – Art 49

76

- Para 1 includes compensation for moral or material prejudice - Para 2 allows for punitive damages in addition - BUT Quebec Charter doesn’t say how to claim

o So have to use ECO (1457 CCQ) ---fault would have to be proven

Can Charter of Human Rights and Freedoms

- Relationship b/w it and ECO is yet undetermined- Up to now SCC has not been willing to move towards strict liability and fault must be proven- No mechanism in Can Charter to claim compensation- Can Charter abuses etc only apply to the state whereas Ont and QC deal w/ indiv relationships- Difficulty as well b/c states get immunity (so other countries etc???)

(Delimiting the sphere of ECO according to nature of the injury)

2) Economic loss (Injury to ec. Interests) (PEL)- Pure economic loss is the only type of material damage that causes problems in the common law- PEL is not consequential on physical or material injury.

Definition: Pure economic loss is a pecuniary loss that is not consequential on a physical or material injury

- Examples of allowable economic loss: o Economic loss as a consequence of physical injury – loss of job or contract that would

have brought some salary; medical bills; loss of salary o Economic loss as a consequence of material injury – loss of rent; loss of profits

The common law has no problems with these types of situations because the economic injury can be linked to a physical or material injury

- CML- ec loss recognized only when stands on its own ---as long as it’s not accompanied by moral and physical energy

o Traditionally in common law the rule that was employed was the ‘bright line rule,’ which essentially said that there was to be no compensation.

- CVL has granted compensation, but is concerned with not extending it too far (floodgates concern)o has decided not to exercise control through the concept of duty of care – the position is

that anybody can sue control is exercised in pure economic loss cases in assessing causation

o If you don’t want to grant compensation in the situation where you say that there is a direct link between the ‘cause’ and ‘effect’ you would try to find another ‘cause’ that was more direct.

o After cases like Elliot, the shift has been towards ‘immediate and direct’ consequence.

Ec Loss suffered by a Secondary Victim (SV)

77

- This is often a case of pure ec loss ---there is no consequence in terms of bodily or material injury o Eg –Hydro Qeubec factory’s property is damaged by an unhappy customer, mat damage

is suffered so can’t provide power for some for a period of time, this might affect a factory producing goods. W/ no electricity in plant production on assembly line might top and (eg of computer factory) might create a defective computer which can’t be sold = THIS IS MATERIAL DAMAGE –b/c there is actual material damage to the computers which directly caused the ec. Loss

o BUT if assembly line simply stops, there is no damage to computers just an interruption in production, time is lost and so money is lost. THERE IS NOT MATERIAL INJURY, MP REAL PHYSICAL INJURY. PRIMARY INJURY IS THE MONEY LOST = PURE EC LOSS

o Both material damage and pure ec loss could occur at the same time but would have to flow separately from the damaged computers and the computers not made

Injury caused to SV through Primary Victim (PV)

- Eg if someone is selling the computers for the factory, the computer production issues will effect them PURELY ECONOMICALLY, the sellers could also be providing the computers to a supplier and this would also mean pure ec loss for them ----it continues down the line

o Injury can culminate in an incredibly large scale issue (which is why can be problematic for courts ---floodgates arg etc)

Why some systems have problems w/ ECO compensation of pure ec. Loss

- *****Floodgates arg o Fear of opening gates to undetermined amount of claims and undetermined amounts in

claims Cardozo J. defines this in Ultramares v. Touche = fear of fear of “liability in an

indeterminate amount for an indeterminate time to an indeterminate class.”- Insurance --- Primary victim = better loss bearer

o Policy argo P is better placed to obtain insurance (mostly relevant for companies)o Better placed to estimate costs and plan accordingly

- Kual arrangementso Requires commercial partieso When relationship b/w Immediate Victim and SV is Kualo Where K takes into account possibility of injury o Victim is best placed to foresee what will happen/ consequences if something goes

wrong and make Kual arrangements to control for thiso Philosophy behind this relates back to ec. Efficiency arg from beg of yearo This one has more to do w/ foreseeability ---you should have known this would affect

you whereas Insurance policy concern is more just that there is insurance and it should be used rather than this sort of compensation

o eg

78

Norsk Pacific: Bridge with railway on it. Direct victim (I think this is Gov of Can) owns the bridge and has contract with CN to put a track on it. A ship passing underneath breaks the bridge, forcing the train to stop crossing it and stop operations because it cannot be diverted. So the owner suffers property damage, and CN suffers economic damage, they are not suing for the replacement of the tracks, they are suing for the loss of business. 3 judges argued that CN could recover, 3 said CN could not. First 3 wrote their judgment together, 3 dissenting judges wrote their decision together, the seventh judge reasoned with in favor of CN, but for completely different decisions. This is very interesting because the majority reasoning is equal to the number of judges in the dissent. Stevenson’s result made things very difficult because we don’t know what the ‘precedent’ is, because of the different reasoning (agreed with the result).

LaForest J. argues that CN could have foreseen this and made Kual arrangements w/ Gov of Canada

Note: If we changed this to being the bar owner at the other side of the bridge, this is ex-k’al and is not recoverable. (? Why?)

- Hierarchy of valueso Physical injurieso Material injurieso Moral injuries

HOW THEY EXPRESS THIS RELUCTANCE

- CML = no recovery (bright line rule?) but then eventually allowed some but severely circumscribed

o Some CML regimes don’t allow at all but Canada does but under strict conditionso Mechanisms for this

=

Models for delineating liability – to restrict claims

- Duty of care model (CML only)o Recoverable only in limited circumstances depending on foreseeability + proximity +

policy concerns (2nd year Advanced common law obligations)o (CML is one of systems that has the most problems w/ PEL ---so they tend have the most

mechanisms to deal w/ it)

- Causation model o No problem with regard to the closeness of the relationship between the parties. Duty

towards everyone (« autrui »)o Shaping of liability through causation: does the economic loss flow from D’s fault or

some other factor?

79

- Trad position of CML = Bright Line rule – no Duty of Care—no recovery

Weller v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569 Facts:- Weller = cattle auctioneer - suffered loss of business when FMDRI allowed the disease to escape, killing local cattle- unable to auction them offIssues:- Can the plaintiffs (the auctioneers) claim compensation for loss of profits?Held:- NoReasoning:

Court uses Bright Line Rule ---- FMDRI has no duty of care towards auctioneer ---just to the farmers

Main worry of the court was floodgates – the escape of a virus has the ability to affect most businesses in the area – if the court allows the auctioneers to sue, then all other businesses will sue as well

((((?Since there is no precedence, apply the Neighbour Principle to decide if duty of care should be extended – in the recognition of new duty of care categories, the principle should be applied with caution?)))))

The injury to the auctioneers was not reasonably foreseeable – only the material injury to the cattle owners was reasonably foreseeable

Ratio: The courts use reasonable foreseeability in assessing duty of care to limit recovery

for pure economic loss PEL cannot be recovered when there is no personal or proprietary interest in the

thing damaged, and you cannot be considered a reasonably foreseeable victimComments- After this case the “doors open” to pure ec loss cases but are restricted by duty of care ---

eg. Hedley Byrne (negligent misstatement case) [1964] where PEL allowed

- Hedley Byrne (negligent misstatement case) [1964] where PEL allowed ---accounting negligence in dealing w/ companies books, looks like company is doing well and investors invest, company goes bankrupt and investors lose money

- Other sits where PEL allowed under strict conditions =o Negligent performance of a serviceo Products quality claimso Failure to warno Relational economic loss

What about jurisdictions/systems that don’t have Duty of Care?

- Issue still exists and can see the reluctance to deal w/ it (eg Germany)- Pure ec loss doesn’t exist in systems stemming from French Civil Code ---injury not a concern

80

o But when you consider cases they do deal w/ it ---o (Quebec) can see that judges are still concerned w/ these issues b/c they do affect lots

of people etc –but won’t explicitly mention it as a reason to restrict liability as CML courts do

o Will sometimes use causation to circumscribe/control recovery –causation is a good limiting mechanism – CAUSATION MODEL WHERE DON’T HAVE DOC

CVL courts will look to see if event would have happened anyways

Elliot v. Entreprise Côte Nord [1976] C.A. 584Facts :- Elliot negligently hit Giannotti, a joint-owner and foreman at ECN, in a car accident

which preventing him from working. - ECN sued Elliot for G’s loss of services and their need to hire two employees to replace G. - ECN is claiming the difference between what they would have had to pay G, and the

salaries paid to the two additional hires – (which they hired b/c G was such a good employee)

- Company still paying to support G after accidentIssues- Should ECN be able to recover damages for PEL as a SV?Held- ECN is an SV but isn’t entitled to recover damagesReasoning- ECN did not prove that the damages were a direct and immediate consequence of Elliot’s

fault (causation).- Floodgate arg isn’t a problem here but court likely hesitant to set precedent b/c every

time an employee is injured, companies could then claim damages- So courts try to find another explanation - Defence shows the new hires were a consequence of the company’s expansion, and

would have been hired regardless – more Ks were coming in Ratio:- Economic damages must be direct and immediate in order to be compensated

for.- While “another” (SV) is interpreted broadly, causation can be used to limit the scope of

liabilityComments:- Khoury says to note how case shows flexibility of causation- ECN may not have had to replace G but courts ignored to achieve desired result

J.E. Construction v. G.M. Canada [1985] (Qc Court Ap) – not in CP but mentioned

Facts: JE accidentally hit an aqueduct depriving GM of water for 3 hours. GM’s employees were unable to work during this time, but their collective bargaining agreement ensured that the would be paid regardless.Issue: Is JE liable for GM’s economic loss?Held: Yes.

81

Reasoning: Application of 1053 is consistent with previous cases; GM is “another” – Regent Taxi confirms

that “another” can include secondary victims The necessity for the damage to be a direct consequence is dealt with when the court says that

the damage to the secondary victim need not occur at the same time as that to the primary victim. As long as the damage is a direct result of fault flowing from the plaintiff, the defendant can recover.

The problem is with the word “cause” in a. 1053, CcLC – must ask if the injury was a direct and immediate consequence of the fault

A rule of thumb may be to ask if the damage would have occurred if the fault had not been committed.

Ratio: The existence of causation will depend on the facts of the case and interpretation should be

left to the judge’s discretion. The problem is not with the word “another”; the problem is with the word “cause” – liability

for damages does not have to do with the class to which the plaintiff belongs, but rather if there was causation

3)Wrongful life, birth and conception- Courts often have a problem w/ this - find some cases ‘repulsive’ for moral/ethical reasons – b/c of

statement it makes to society

Limitations on recovery of damages

- Through formal legal conceptso Duty of careo Causation

- b/c of ‘policy’ reasonso cultural, social, moral etc values/norms/concernso although policy isn’t usually sole reason for decisiono also relates to the ‘reasonable person’ – what they would do

Types of problematic losses

Wrongful Birth Wrongful Conception/Pregnancy

Wrongful Life

Plaintiffs: Parents of the child Alleged fault/negligence: - Child’s conception plannedbut doctor negligently fails to inform the child’s parents of the possibility of their bearing a severely handicapped child. Health of the child: handicapped Eg,

Plaintiffs: Parents of the child Alleged fault/negligence: Doctor negligently causes the unplanned birth of a child Health of the child: usually born healthy E.g.-Omitting to diagnose pregnancy when there is still time for an

Plaintiff: Child Alleged fault/negligence: same allegations as in wrongful birth and wrongful conception actions. Health of the child: healthy or handicapped

- Most controversial

82

-Fails to carry out tests designed to discover possible foetal defects; -Tests are carried out but performed negligently; -Doctor fails to warn of possible side effects of maternal disease;

- usually will sue for the costs of caring for handicapped child and/or maybe compensation for pregnancy/birth after the point at which abortion would have occurred

abortion; - Negligent performance of a sterilization operation.

- Controversy = child born healthy

- Suing for costs of birth/pregnancy and cost of raising child etc.

Examples of responses to problematic losses

No Recovery Total Recovery Offset/Benefits Approach

Limited Damages

- Awarding dms owing to the existence of a child is contrary to the intrinsic value of human beings

- Often used on Wrongful life cases

- Applied in McKay (W-life)

- Application of ordinary principles of tort law.

- No limitation based on policy.

- Applied in Cooke (W-conc.)

- Applied in Perruche (France) (W-life)

- Takes into account both the benefits and disadvantages flowing from the raising of a child following an unwanted pregnancy

- Found acceptable in Cooke (W-conc.)

- Rejected in Bevilacqua + McFarlane (W-conc.)

- Most courts refuse to do this (?except for in Quebec?)

- Dimes limited to those associated with the pregnancy and birth, and perhaps those associated to the initial setup of accommodations for the child.

- Applied in McFarlane by the majority (W-conc.):

- Pain and distress (moral injury)

- Infringement on personal autonomy (?I think this is more in Quebec though?)

Distinction b/w CML and CVL

- CVL: Courts are open to almost all types of loss only exception: “wrongful life” is not recoverable- CML has stronger reluctance to award damages

o Courts are more likely to award to those who are financially needy- CVL has no problem awarding damages

83

5TH approach - New/developed in Bevilacqua v Altenkirk

- Canada – CML- Treat the injury as non-pecuniary in nature(Instead of compensating for costs associated with

rearing)o Factors

(-) : assess the relationship of the child with the parent (+): reasons for wanting to limit size of family (+): actual circumstances at time of sterilization, pregnancy and birth

MacKay v. Essex Area Health Authority [1978]– England - wrongful birth/lifeFacts- MacKay (infant plaintiff) was born disabled as a result of mother’s rubella infection- Mother alleges that if she had known, she would have had an abortion- MacKay wants to claim damages on the ground of the doctor’s failure to treat the rubellaIssues- Can infant and mother claim compensation for “wrongful life” and “wrongful birth”?Held- NoReasoning- MacKay was not injured by the doctor – it was rubella, which was no one’s fault

defendants only caused MacKay to be born (did not actually cause the birth defect) court cannot make someone who did not cause the injury pay for it

- Defendants did not break any duty to take reasonable care not to injure MacKay or mother

- There is no duty to take away life – “right to die” goes against public policy – if there were such a duty, this would imply that handicapped child’s life is less valuable than a healthy child’s life; also, would open the ‘floodgates’ to handicapped children making claims against their mothers

- Court refuses to assess damages because it is impossible – how to measure the loss when the alternative is death?

Ratio- Both “wrongful birth” and “wrongful life” claims do not succeed- Public policy arguments are used – i.e. there is no “right to die” and cannot imply that a

handicap child’s life is less valuable than a healthy child’s- Duty is owed only by the person who causes the injury – law will not allow someone who

did not cause injury pay for it- Impossibility of assessing compensation is a reason for courts to refuseComments- ((Mother can succeed on claim that the doctor acted negligently by failing to inform her

of rubella’s risks – but the doctor cannot be liable to the child))- This case reminds me of Perrush but in that case claims were successful until reversed

by statute (France)

84

McFarlane v. Tayside Health Board [1999] – UK – wrongful conception Facts- McFarlanes did not want anymore children – Husband had a vasectomy and doctor

advised that the couple could dispense with the use of contraceptives- Wife became pregnant and gave birth to a healthy childIssues- Can the McFarlanes claim damages for the stress and difficulty endured during

pregnancy?- Can the McFarlanes claim damages for the cost of rearing the child under “wrongful

conception”?Held- Yes- NoReasoning - Parents have right to choose – right to personal autonomy- Parents’ decision to not abort/adopt does not break chain of causation – they would not

have had to make decision if it weren’t for doctor’s negligence- Law decides that birth of healthy baby cannot be an injury so costs of bringing up child

are not recoverable- Cannot balance costs/benefits of having a child – advantages and disadvantages are

inextricably linked law adopts the principle of “he who takes the benefit must take the burden”

- Although pain and suffering of pregnancy is part of burden of having child, parents did suffer injury and loss (i.e. loss of freedom to limit the size of their family; loss of personal autonomy”) McFarlane has claim to these damages because pregnancy resulted from doctor’s negligence

Ratio- Court does not grant claim for “wrongful conception”- Public policy reasons for denying the cost of rearing (i.e. birth of healthy baby cannot be

injury; courts will not balance costs and benefits of having child)- Parents have right to personal autonomy – can be compensated for violation of this right- Limited recovery for the cost of the pregnancy (which was caused by the doctor’s

negligence)Comments- Eg of cost-benefits analysis approach

Cooke c. Suite [1995] (Quebec) – wrongful conception Facts- Suite did not want to have any more children- Cooke performed sterilization operation, but did not consult an important pathology

report which gave him information regarding the procedure (and could have prevented the procedure from failing)

- Suite became pregnant and gave birth to healthy babyIssues

85

- Can Suite claim damages for wrongful conceptionHeld- YesReasoning- If the doctor is found at fault, he must take responsibility for the consequences – in this

case pregnancy and child-rearing doctor was found negligent for not having consulted report

- Freedom of parents to choose size of their family – doctor’s negligence violated this right (personal autonomy)

- In response to public policy argument (that healthy baby cannot constitute an injury): No rule of public policy which prevents plaintiff from recovering in full the financial damage sustained by her as a result of doctor’s negligence – regardless of whether the child is healthy or abnormal child can constitute an injury(CVL)

- a. 1607: Just have to show that the damage occurred is a direct and immediate result of the fault – even though mother could have had abortion/adoption, the child is still the direct and immediate consequence of the doctor’s negligence

- Can weigh costs and benefits of having child – in this case, the benefits are balanced with the costs and therefore reduce the compensation awarded

Ratio- Civil law is willing to grant a “wrongful conception” claim – healthy baby can constitute

an jury; costs and benefits of having a child can be assessed- a. 1607 sets out only one condition for determining liability – that the damage must be

direct and immediate consequence of the faultComments- Civil law draws less on “public policy” and “moral” arguments

Perrush- Mother became pregnant and wanted to make sure she hadn’t contracted German

measles- Laboratory problem and gross negligence on part of Doctor so mother doesn’t know that

she had in fact contracted the illness- Son is born severely handicapped- Parents sue for both their own injury and compensation and that of son –WRONGFUL

LIFE CLAIM- (?Courts initially allow but then overruled by statute?) --- b/c it’s determined that

doctor didn’t DIRECTLY contribute to injury –it was the illness- After Perrush – much controversy –lobbyers esp. group of parents of handicapped

children – even though Perrush meant a financial benefit they didn’t agree that the birth of their children was an injury

- Policy issues- This case is unique in that it initially allowed compensation for wrongful life claim

Impact of Cultural Norms and Concerns

- Right to die / Obligation to abort

86

- Undermining the life of the handicappedo Message sent to childo Value of handicapped life

- Life/Non-existence as an injuryo How to assess damages??o Value of handicapped lifeo McFarlane – courts finds idea of birth a an injury as repugnant

- Judging parents’ motives- Rights of women/parents

o Cooke v. Suite Quebec CVL focussed on right of women to make own choices and obligation of

health care system to support this o CVL approach in Can – that courts shouldn’t question reason behind not wanting a child

whereas CML finds reason behind to be imp- Mitigation of damages

o ??- Note how Quebec’s stance is at odds

o Maybe b/c women’s rights are very strong here o Or maybe b/c reaction to prior pressure to have many children through Catholic church

etc Now move away from religion Actually have in recent past had one of lowest birth rates in the world

??Mass torts (personal injury) (done in first term)??

According to the nature of the relationship b/w parties

1)The concept of “duty of care”

1457 CCQ & Donoghue

- who do I have an obligation/duty by law not to cause harm to?o How close must relationship be?

- CML and CVL have dif ways of seeing relationships

- Nature and scope of the individual obligation to take precautions or to act reasonably

- 2 modelsCVL – Broad scope CML – Narrow scope

87

- Opts for general conception of duty/obligation towards everyone

- 1457 CCQ - Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another…

- Who is another?- CVL never uses words ‘duty of care’ ---

would instead ‘obligation to act w/ care’ --- b/c ‘duty’ caries w/ it CML tort of negligence connotations

- Restricts to cases where ‘special’ relationship exists / certain categories of people

- Donoghue v. Stevenson- Lord Atkin’s Neighbour Principle (in

Donoghue v. Stevenson) - You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour: ie, Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question

Role of duty in CVL liability

- Limits the types of relationships that can lead to liability by asking:o Is D under a legal obligation to exercise reasonable care in favour of P?o Is there a relationship between P and D which the law believes is sufficient for D to have

a DC towards P?- Note that when there is no duty of care you can do whatever you want with the exception of

that which is cov’d under crim lawo “A man is entitled to be as negligent as he pleases towards the whole world if he owes

no duty to them”(Esher MR, Lelievre v Gould, QB-1893) - Instrument of control

o Limiting mechanism o Like a filter – takes care of preliminary questions

- Choice of societal values worth protectingo Which policy args to take into account and incorporate o Is/will decision be in best interest of society ---how does it fit into greater picture o Sometimes ECO must step aside and let other issues take precedenceo Will floodgates of litigation be opened

- Establishes hierarchy of protected interestso Should law get involved or leave issue alone

Eg of duty of host to prevent drunk driving This would have a negative social consequence by changing

relationships –host would have to have a breathalizer etc Eg – PEL lower in hierarchy Eg does mother have Duty of Care towards unborn child

88

Eg Cooper – conflicting interests of the State- Tool through which cts pay attention to public policy

o is the recognition of a legal obligation to exercise care in a particular situation in the best interest of society?

- What is the role of private law in regulating relationships?

Donoghue v. Stevenson [1932] (UK)Facts

- Consumer gave ginger-beer containing a snail to a friend no contract between the friend (victim) and the defendant (manufacturer of ginger beer)

- No possibility of verifying contents by the café where the ginger-beer was soldIssues

- Was there a duty of care btw the manufacture and the victimHeld

- YesReasoning

- Ultimate consumer of the ginger-beer was a reasonably foreseeable person that would be hurt by the manufacturer’s negligence --- manufacturer could have foreseen that consumer who hasn’t directly purchased product could consume product

- No precedent for this case – so Lord Atkin’s comes up w/ Neighbour Principle (note biblical link)

Ratio Established test for duty of care in common law: Lord Atkin’s Neighbour Principle :

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour: i.e. persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

- “Reasonable foreseeability” refers to class of subjects affected by relationship (not a specific person)

Today duty of care good mechanisms for limiting

- PEL recovery- Recovery for psychological/psychiatric injury- Failure to act- Recovery based on negligence of public authorities

(Note – Bodily injury and material injury are straight forward, generally non-problematic so not on above list)

Reformulation of Donoghue

(and of Lord Atkin’s Neighbour Principle)

89

Two ideas

- 1)Proximity = close and direct relationship- 2) Contemplation of foreseeability of harm

PROXIMITY = FORESEEABILITY Criteria added to foreseeability later on =

1) Objective criterion (reasonable foreseeability) 2) It is sufficient that the activity in question creates foreseeably risk of

harm to persons in the general class that plaintiff belongs to (not necessarily that particular individual)

Note: this is a broad test

Lord Atkin’s Neighbour Principle (from Donoghue)

- Originally = extended duty of care to the manufacturer towards third party consumer of product- After reformulation in eg Dorset Yacht, etc = General principle/formula that was based on

reasonable foreseeability was used to extend duty of care to new situations not before recognized by law

o Note: test applies if there is no relevant precedents which have established duty of care in a similar situation

o (limiting mechanism now = policy args – see Dorset Yacht)

Home Office v. Dorset Yacht [1970] – UKFacts

- Defendant = Home Office (public authority); Plaintiff = Dorset Yacht (owner of the yacht that was damaged)

- Home Office is the employer of the officers who are in charge of the prisoners (youths); it was the prisoners who actually damaged the yacht

- Officers went to sleep (contravening their orders to watch the prisoners); the prisoners stole a boat and ran into Dorset Yacht, causing damage to the boat Home Office is being sued for vicarious liability of its officers not for vicarious liability of the prisoners

Issues- Was there a duty of care on the part of the Home Office to the plaintiff?

Held- Yes

Reasoning- Even though reasonably foreseeably that prisoners could do great amount of

damage – extra criteria added b/c of concern of floodgates claims of all those on mainland since prisoners could do damage to all in their path (so to distinguish plaintiff from others) and great burden that would place on the state (so limiting of plaintiffs protects the state ---and likely done in this case partly b/c it was the State who is the defendant)

Lord Reid:

90

Since this is a new situation (no precedent!), must ask if the principle established in Donoghue can result in a duty of care – the question is if it was reasonably foreseeable that the prisoners would try to escape using a yacht and that the yacht would collide with another yacht decides there was reasonable foreseeability in this case

Also goes on to assess if policy is in favour of recognizing a duty of care (which is not mentioned by Lord Atkin in Donoghue v. Stevenson) – main concern is whether or not the recognition of a duty of care in this case will open the floodgates answers this in the negative because of the way in which the test will be applied in these cases (i.e. only where exercise of discretion is unreasonable) as a result, there is no public policy reason to give the Home Office immunity

Lord Diplock: Precedent is imp b/c is first step – and this case will set precedent 5 propositions put forth (more restrictive than Lord Reid – Diplock moves beyond

reasonable foreseeability):1. Must prove that it was reasonably foreseeable that the prisoners would

escape and that they would likely do damage of the kind that was caused2. Must ask this question because we are in the presence of a new case that is

different from past authorities and from Donoghue (which was concerned with manufacturer’s liability)

3. When faced with a new case, must ask if there are similarities with previous decisions; if there are none, then the court must exercise a choice as to whether or not they should extend the duty of care to this new situation – court will exercise this choice by making a policy decision [p. 53] based on certain characteristics

4. It is reasonably foreseeable that the public at large will be injured if the prisoner escapes – the owner of the yacht is a member of the public at large so reasonable foreseeability is established

5. But, the Home Office cannot owe a duty of care to the public at large – this would extend liability too far and negate the concept of duty of care – there must be a distinct relationship between the Home Office and the plaintiff that is different from the relationship that the Home Office has with the public at large – i.e. there must be an exceptional risk (different from the general risk to the public) for there to be duty of care (otherwise would = extensive liability to the public at large would be imposed on the State) – establishes three conditions must be met beyond reasonable foreseeability :

Damage must be incurred:1) In the course of the escape2) At roughly the same time as the escape3) In the vicinity of the escape

This has nothing to do with reasonable foreseeability; it is just used to limit to who the duty of care is owed (so there is no duty of care to the public at large) these conditions are met in this case – it’s all about policy

Ratio: The court will establish other conditions (beyond just reasonable foreseeability) to

limit liability (if it is reasonable foreseeable that the public at large will be injured by the fault of the defendant)

The court will also look at policy considerations (in this case it was the floodgates argument) even though policy was not mentioned in Donoghue v. Stevenson

91

Comments- Eg of extension of duty of care (reformulation of Donoghue)- Eg of 3rd party victim- Before Anns, officially, policy factors were not taken into account; however, it is clear

that policy considerations were in fact hidden behind talk about reasonable foreseeability judges were reluctant to openly admit that duty of care was used for policy decisions (wanted to make duty of care seem juridical and objective)

Anns v. Merton London… [1978]- Lord Wilberforce:- Case where policy concerns/factors are officially embedded into duty of care test of

test – where Dorset Yacht kind of merges policy arg and reasonable foreseeability, Anns separates them – reasonable foreseeability of the victim is no longer sufficient to extend duty of care

- = two stage test – if there are no precedents which answer the question1) Relationship of proximity

Sufficiently close relationship between the wrongdoer and the person who has suffered damage so that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter (Proximity = reas. foreseeability)= Prima facie duty of care 2)** Policy

Are there any considerations which ought to negative or limit i) the scope of the duty; and ii) the class of persons to whom it is owed; or iii) the damages to which a breach of it may give rise?

- Concern that Anns is too broad

City of Kamloops v. Nielsen [1984]- As applied in Canada – Kamloops restricts Anns

Wilson J. – Refers to Lord Wilberforce in Anns v. London Borough of Merton and states that ‘in order to decide whether or not a private law duty of care existed, two questions must be asked (use test if not precedent or I think that was introduced by Cooper):

1. (RELATIONSHIP OF PROXIMITY) Is there a sufficiently close relationship between the parties so that in reasonable contemplation of the authority, carelessness on its part may cause damage to that person? If so…

2. (POLICY) Are there any considerations which ought to negative or limita. the scope of the duty, andb. the class of the persons to whom it is owed, or c. the damages to which a breach of it may give rise?

Lord Wilberforce said these questions must be answered by an examination of the

92

governing legislation.- Anns and Kamloops set up the same 2 part test (see above)

Caparo [1990](in UK only) – not in CP or PowerPoint but mentioned in class – need to know??Court adds on to Anns

1. Reasonable foreseeability 2. Proximity (but, unclear what “proximity” means – work on a case-by-case basis since

there is no fixed definition) proximity will be more than reasonable foreseeability (the point is to be more restrictive than the test in Anns)

3. Is it just and reasonable to impose a duty of care? Imp is that court separates RF from proximity – where need something to demonstrate how close the relationship is

Cooper v. Hobart [2001]Facts

Three parties: Eron (investment agency); Registrar (**=public entity = imp); Investors (public)

Broker arranged for investors to pool their funds for purpose of large syndicated loans

Some of funds used by broker for unauthorized purposes Registrar investigates and suspends broker’s license Broker went out of business w/ money outstanding to investors Investors are suing the Registrar (because Eron disappeared) Registrar is in charge of licensing Eron; knew that Eron was stealing money from its

investors but did not shut them down or warn investors – so breached duty of care -- until a couple years later

- **(Registrar of mortgage brokers allegedly causing injury to investors by freezing assets of cie)

Issue- Does the Registrar owe a duty of care to members of the investing public for

economic loss?Held

- NoReasoning

New duty of care – deals with pure economic loss (not associated with personal injury or material damage) there is no precedence, so must apply Donoghue as modified by Anns: (1) Proximity; and (2) Policy

New modified test = 1. Relationship of proximity

i. Was the victim reasonably foreseeable? ii. Reas. foreseeability no longer sufficient -- Policy issues related to

proximity

93

= Prima facie duty of care 2. Residual policy considerations

Despite foreseeability and proximity, are there other policy reasons why DC should not be imposed?

Two questions identified by the court as being unanswered by Anns : 1. Whether policy is a consideration at both stages of the analysis – YES2. If yes, then is there duplication? – NO, because the second part of the test is

not taking into account the same policy considerations as the first parto [p. 47] Policy considerations at the first stage of the test deals with the

relationship of the parties (not broad policy considerations)o [p. 48] Second stage deals with residual policy considerations – i.e.

policy considerations that have nothing to do with the relationship of the parties (including policy considerations regarding operational decisions, floodgates argument, etc.) – broader considerations

No duty of care to investors as members of the public as a whole – and cannot ask a regulatory body to take care of specific interests when it was actually created for the public interest as a whole there are policy reasons to decide that the relationship between the parties is not close enough – there is insufficient proximity btw registrar and investors to ground a prima facie duty of care (para 50)

Even if there had been a prima facie duty of care, there are other policy considerations to prevent a duty of care from being imposed in this case – e.g. impact on taxpayer (i.e. public insurance policy); decision to suspend a broker is a policy decision on the part of the regulatory agency to which the courts defer – parallel duty/conflict would be created btw duty of care to public and to private/public investors (b/c registrar is a public entity) (p69)

**duty will be to investors as member of public but not as private investors (but this is specific to Cooper)

**3 residual policy considerations (when registrar decides to suspend brokers license = taking a quasi-judicial decision – where duty of care would affect discretion of their decision ???)

1) State is making a policy decision and courts shouldn’t interfere

2) Spectre of indeterminate liability and duty of care == floodgates arg ---- not just about amount of plaintiffs but also amount of money

3) Effect on taxpayers - taxpayers who hadn’t agreed to pay for private loss of investors w/ tax money

(these are specific to Cooper – but are applicable in terms of application ??)

Comments- Policy arg is pretty much opposite of Dorset Yacht (??)

Childs v. Desormeaux [2006]

94

- About duty of care when guests leave party drunk – (social host liability)- Party, guest drinks own alcohol, become intoxicated , doesn’t appear drunk, he

decides to drive home and causes car accident which results in catastrophic injuries to third party

- Courts only had commercial precedents where limited responsibility/ reasonable forseeability had been established = said didn’t have sufficiently close precedent – so 2 part test applied from Anns =

Modern Canadian applications of Anns & Kamloops : Childs v Desormeaux If no precedents…1. Relationship of proximity

i. Was the victim reasonably foreseeable?ii. Was the victim in a proximate enough relationship to defendant

(features of the relationship other than reasonable forseeability)?= Prima facie duty of care2. Residual policy considerations Despite foreseeability and proximity, Are there policy considerations militating

against recognising a duty of care in the specific case?- Courts ruled insufficient proximity btw host and injured party (injured by drunk

guest)- Distinguishes btw giving alcohol to people even when it is known they’re drunk

(Crocker v. Sundance) and BYOB- Guest didn’t appear drunk when leaving - (leading case)

Policy concernsNote cases/themes IMPOSING A POSITIVE DUTY TO ACT

- Risk enhancement and control- Autonomy and reasonable reliance (on host in this case)

NO DUTY OF CARE OWED BY PRIVATE HOSTS TO THIRD PARTIES INJURED BY GUESTS

- Note timeline of duty of care tests --- depending on when cases occur – test is dif- Duty of care – relational or prescriptive????

Palsgraf v. Long Island Railroad [1928] – USFacts

Passenger trying to get on a moving train; guard in train pulling, guard on platform pushing; package falls on track

Package is full of fireworks and explodes (nothing on the package to indicate that it was full of fireworks) – explosion causes set of scales to fall on Mrs. Palsgraff – she was standing far away (the chain of events which led to the injury was far-removed and complicated)

Plaintiff sues the railway company (the employer of the guards) Trial jury found that the behaviour was wrongful. Fault is proven. ((The article in the NY Times gives more facts – the station was packed with people –

there was an Italian festival that involved fireworks that day (could be more predictable – from summary))) – the blast was heard blocks away – Mrs. Palsgraf

95

developed a stammer and later became mute. She also has a ticket (K relationship with railway) and was waiting for a train. The person carrying the fireworks was never found.

Issue: Does the railway company owe a duty of care to the plaintiff?Held: No (4-3)Reasoning:

- we have 1) fault and 2) liability BUT argument btw Cardozo and Andrews is about what’s missing bef can find liability

- note imp of how story is framed – Cardozo writes in such a way that he’s leading reader

Cardozo (majority) – essentially CML position but CVL in form and writing (absolute in tone etc):

Deals only with whether or not there is a duty of care owed to the plaintiff – NO Very restrictive in his approach – uses an approach that is in tune with the current

common law looks at reasonable foreseeability of the hazard and concludes that it was not reasonably foreseeable that the package had fireworks or that these would injure the plaintiff who was standing far away

Conduct of the employees of the defendant was a wrong in relation to the holder of the package, but not to the plaintiff who was standing far away – nothing made it reasonably foreseeable that someone so far away could be injured by their negligence

“Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.”

“Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.” – this is a fundamental difference between criminal law and ECO

- He repeats over and over what tort of negligence is and then gives his conclu over and over but doesn’t work through why Palgraf isn’t a foreseeable victim

- He doesn’t call plaintiff by name -- *he’s interested in meaning of tort of negligence and the way plaintiff is characterized in particular context to see whether plaintiff is owed a duty of care under tort of negligence

- Gives a disconnected description of events and frames it in such a way that it seems ridiculous that Palsgraf would be compensated

- It’s only Cardozo who decides that case is about how Palsgraf isn’t part of group of people who are owed duty of care BUT she is a passenger –so who else would railroad owe duty of care to??

- *****insists that tort of negligence is NOT about owing duty of care to public at large BUT TO A NEIGHBOUR = so even if fault, causation, and injury exist –no negligence until can show duty of care was owed to class of victims to which particular plaintiff belongs

- **to Cardozo, Palsgraf is unforeseeable victim b/c of odd nature of package/contexts – so she is outside of orbit of care – so not imp of guards haven’t acted reasonably – must owe Paslgraf duty of care before they can be found negligent

Andrews (dissenting) – essentially CVL position but CML in style and form (tentative in judgement ):

Deals with whether or not there is a general duty of care – YES; then goes on to assess causation (“proximate cause” = legal causation) [but, we will not be focusing on legal causation] – this is where limits are drawn

96

Much broader approach to duty of care – more similar to Quebec civil law – “everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others” – the duty is not to whoever can be reasonably foreseen to be injured, but rather who is actually injured reasonable foreseeability is not what is important; what is important is whether or not there has been an injury, proximately caused by negligence

The plaintiff is injured, therefore there is a duty- Andrews never gives us direct link btw action/injury and negligence

Ratio:Different approaches are taken by the different judges – restrictive vs. narrow conceptions of the relative importance of reasonable foreseeability – these correspond to the differences between CML and CVLComments

- Cardozo and Andrews – demonstrate dif b/w 1607 and 1457

Cardozo AndrewsRestrictive approach (in terms of duty of care):

• P beyond the range of foreseeable danger;• Conduct of D, if a wrong in relation to the

holder of the package, was not a wrong in relation to P standing far away

Problem- Problem is a question of duty of care- Shaping liability is done predominantly

through DC

Broad approach (in terms of duty of care):• Wrong is not only to those who happen to

be in the radius of danger, but to all who might have been there – wrong to the public at large;

• Negligence involves relationship not merely with those one might reasonably expect his act would injure, but to those whom he does in fact injure;

• Everyone owes to the world at large the duty of refraining from those acts that may unreasonable threaten the safety of others.

Problem- Problem is one of legal causation /

proximate cause- Concept of DC, if used at all, does not

pursue a restrictive role- Limitations of liability done through DC,

can also be achieved through legal causation in similar situations

- major approaches in delineating resp for compensating injuries (where does this fit in?)o To whom is duty of care owedo Do we count this person as a neighbour

Tied to foreseeability and proximity in terms of membership in class of victims in terms of causal link – in tracing link back to …

Palsgraf and relation to secondary victim / plaintiff (finish this??)

- in last page of notes –but not too clear – more next class?????- Nervous shock doctrine in CML ??? see later

97

- Proximity at issue here as well??

2)”Secondary” victims- Ripple effect – injury of victim has indirect effect on others

- (CML) – Concern w/ limiting possibility of recoveryo Arise mainly when secondary victim is claiming for non-pecuniary losses

Fear of floodgates Of extending liability too far

Judicial skepticism about authenticity of harm Not so relevant anymore but still lingers

o Shows in hierarchy of seriousness of injuries Fear of fraudulent of exaggerated claims Psychiatric injury less serious than physical injury (or difficult to distinguish) General Reluctance

o = Starting point in CML: no claim/compensation possibleo Eventually admitted – Changed by statute:

Fatal Accident Legislation (see VAN PRAAGH p72 CP2) (like or stemming from) Lord Campbell Act Only available to certain cats. of victims – members of immediate fam.

o Assumption of who is most affected and that these are those closest to victim when might not be the case

Extension of duty of care in limited circumstances Eg « Nervous shock » (but still here preference for typical close

relationships like parent-child etc)- (CVL) Much more pen to claims by Secondary Victims (in theory)

o No theoretical division btw immediate victims and “victimes par ricochet” (VAN PRAAGH p72 CP2)

o Doesn’t really care who you are in relation to victimo Concern is with the INJURY

Methods employed to circumscribe liability

- CML - how it’s decided which victims worthy of recoveryo When no precedent exists (as demonstrated in Cooper v. Hobart and Childs):

98

First stage: Reasonable foreseeability Proximity + policy issues relating to reas foreseeability?

= Prima facie dutySecond stage

Residual policy factors

Alcock v. Chief Constable of South Yorshire [1991] (House of Lords) – not in CP but talked about in class and imp.Facts

- Police allowed too many people into a football match and the resulting crush killed 95 people and injured over 400. Scenes from the ground were broadcast live during the match, and recordings were broadcast later. The trial court heard the Chief Constable admit negligence in respect of the deaths and physical injuries.

Issue- Can these secondary victims claim for non-pecuniary damages?

Held- No

Reasoning Claims for damages due to nervous shock can be made when:

The shock results from the death or injury to the plaintiff’s spouse or child, or the fear of such.

The shock has come about from the sight or hearing of the event, or its immediate aftermath.

In this case, there was no evidence to establish the required proximity in relationship which would make the claim reasonably foreseeable, nor the immediacy of the shock after the event transpired.

***** Three kinds of restrictions: 1. ((Type of psychological injury – requirement is that the injury must be a “positive

psychiatric illness”)) – must belong to list of recognized psychiatric illnesses2. Relates to the condition of reasonable foreseeability – requirement is that the

defendant must have reasonably foreseen the risk of psychiatric injury (different from Donoghue which does not specify what kind of injury) -relates to classes of people who can sue too – close relatives involved in accident, close relative witness events and can prove sufficient relationship of love and affection, bystanders CANNOT claim unless particularly horrific sit

3. Linked to the requirement of proximity:a. Restrictions as to the class of people who can sue – there must be a

sufficient relationship of love and affection with the primary victim ---relates to classes of people who can sue too – close relatives involved in accident, close relative witness events and can prove sufficient relationship of love and affection, bystanders CANNOT claim unless particularly horrific sit ----------no list but presumptions for certain relationships (eg parent-child) for which defendant would have to disprove ---if not part of presumption cat., burden of proof on victim (VAN PRAAGH – see article – has prob. w/ this as many strangers were very affected by what happened and were excluded from test)

99

b. Must be proximity in time and space – secondary victim must have witnessed the accident or its immediate aftermath

c. Restrictions as to the means by which the psychiatric injury was caused and the manner in which it arose – i.e. must have seen or heard the accident or its immediate aftermath and must have been a “sudden assault on your nervous system” (e.g. in the stadium vs. on TV or seeing a crowd vs. seeing faces)

Ratio To claim for nervous shock as a secondary victim you must be verifiably closely related and

a witness to the event or its immediate aftermath.

- CVL – impact of the quality of the relationship in assessing liability o If the primary victim had died

It mattered under the CCLC 1056 - 1056, CcLC: In all cases where the person injured by the commission of an offence or a quasi-

offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi-offence, or his representatives, all damages occasioned by such death.

Claims could be advanced by ascendants, descendants, consorts Reluctance towards solatium doloris – due to British origin of

codification Augustus v. Gossett (where solatium doloris is recognized) changes this

Mother claims for grief and courts allow but she was to prove relationship (proximity)

o VAN PRAAGH points out that this is still allowing for psych relationship on the basis of a relationship that must be proved to or accepted by court ---and is a typical immediate family relationship (parent-child)

Not included in CCQ –1056 CCLC seen as historical error (due to British origin)

Augustus v. Gosset [1996] SCC (CVL)Facts: Secondary victim (mother) sued because she was suffering from the death of her son – this was problematic because solatium doloris had never been accepted in the civil lawRatio:

SCC decided to move away from the interpretation of a. 1056 that had been historically based on common law principles – actually, a. 1056 should be interpreted according to civil law principles in civil law, solatium doloris has never been a problem

SCC decided to develop criteria in order to limit recovery (in parent-child relationship):

o Look at the circumstances of the death of the primary victimo The age of both the primary victim and the parent

100

o Nature and quality of the relationship between the twoo Parent’s personality and ability to deal with griefo Impact of the child’s death on the parent

o If the primary victim remains alive Idea is that the civil law does not care about the kind of injury sustained by the

secondary victim, as long as that injury can be proven If the injury to the secondary victim has been caused by damage to the primary

victim, then the secondary victim may recover not a duty of care problem; this is a causation question

There is no limitation as to the type of loss (although the type of loss will affect the amount of damages rewarded)

- 1053, CcLC: Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

Before Regent Taxi, the law was not very clear in this respect (i.e. whether “another” in a. 1053, CcLC could include secondary victims)…

Régent Taxi v. Congrégation des petits frères de Marie [1929] SCRFacts:

One of the brothers of a religious order gets injured as a result of the fault of an employee of Regent Taxi

Religious order claims loss because the brother who was injured could no longer perform the duties that he would otherwise have performed – as well as medical expenses

The congregation is the secondary victim in this case Regent Taxi argued that the word “another” (in a. 1053, CcLC) referred to a limited

list of possible claimants, which contains only one category of people – the primary victim; congregation argued that “another” refers to anyone who was injured as a result of the defendant’s fault

Issue: Could the congregation (a secondary victim) be included in “another” in a. 1053, CcLC?

Held: YesReasoning:

Giving a narrow scope to a. 1053, CcLC is dangerous because the whole law of civil liability depends on a. 1053

The word “another” is clear – refers to anyone where causal connection can be shown

Regent Taxi used a. 1056, CcLC to interpret a. 1053, CcLC to limit the category of possible claimants – the argument is that a. 1053 is the exception of a. 1056 – a. 1053 is restrictive because it only allows the primary victim to sue, while a. 1056 expands the category of people who can sue when the primary victim is dead

The congregation’s argument was that a. 1056 was an exception to a. 1053, but a. 1056 was more restrictive rather than expansive – i.e. a. 1053 was the general rule and a. 1056 was an exception in its restriction in cases where the primary victim is dead the court adopted the congregation’s argument

101

Ratio: The scope of a. 1053, CcLC is large – “another” can include secondary victims! a. 1056, CcLC is used to restrict the category of people who can sue only when the

primary victim is dead causation is the limiting factor, not the word “another” Comments:((This went to the JCPC where it was decided that damages could only be awarded for the medical expenses because the prescription period had lapsed))

- VAN PRAAGH notes that court is still inquiry into relationships

- VAN PRAAGH has a problem w/ courts and judges looking into relationships b/c aren’t qualified as eg psychiatrist etc and issue of subjectivity of judge

Art 1607???? Where does this fit in???

3)Good Samaritan/duty to assistOmissions vs positive acts

- We can make omissions fall under the category of positive acts (i.e. an omission is an inaction) the distinction between the two is often not very easy to draw (e.g. not stopping at a red light = driving negligently; not informing = operating negligently; not salting driveway = taking care of driveway wrongly)

- Obligation to take positive steps to protect others from harm (misfeasance) o Where something you do o Two angles

Duty of care Do I have a « duty to act » in order to avoid injury to another?

o (VAN GERVEN lays out 4 issues) Interference with individual liberty (political arg)

« (R)éticence philosophique quasi viscérale à consacrer un devoir d’agir qui porterait atteinte à la liberté individuelle de manière trop radicale » (Kasirer, 579 – CP2- p102 )

Why pick on me? (moral arg) Causation problems

Where didn’t actually cause o Rebuttal = but by not preventing you

caused it… Economic arguments

Who is best placed to absorb costs ---efficient allocation of resources usually requires an activity should bear its own costs

Liability to compensate for loss caused by negligent conduct acts as a deterrent

102

But does someone who isn’t doing anything required to spend money on behalf of someone else

o Common law model: depends on the nature of the relationship btw P and D

Undertaking Barnett I don’t understand this point –is it b/c

Barnett uses the but-for test or b/c it’s a doctor/patient thing? What does undertaking mean?

Special relationship Parent/child – teacher/student Employer/employee Referee/player Borstal authorities/inmate (Dorset Yacht) Commercial host/patron or third parties

(Jordan House v Menow (1973-SCC); Murphy v. Little Memphis)

Jordan House v. Menow [1973] – SCC – not in CP but mentioned in classFacts:

Bar owner ejected the victim who was very intoxicated Victim walked home and was hit by a car

Issue: Was the relationship between the bar owner and the victim sufficient for there to be a duty to rescue on the part of the bar owner?

Held: YesReasoning:

Defendant was a commercial host and the plaintiff was his client Bar owner knew personally the plaintiff and knew about the plaintiff’s tendency to

drink in excess (this was not the first time the plaintiff got drunk in his bar) The defendant knew that the plaintiff was drunk when he ejected him from the bar

(knew that the plaintiff would be placed in a situation of danger) The plaintiff was placed in a situation of special danger when he was ejected By serving alcohol beyond the point of intoxication, the bar owner was actually

contravening provincial law and his bar’s own rules (although this isn’t really relevant to duty of care)

Ratio: Factors that help to determine if the plaintiff-defendant relationship is sufficient for there

to be a duty to rescue:o Did the defendant derive a commercial profit?

Did the defendant place the plaintiff in danger?

103

Murphy v. Little Memphis [1996] – not in CP but mentioned in classFacts:

Two men got into a fight at a bar Bar owner threw out the two men, as well as the four attackers at the same time The four attackers proceeded to beat up the two men outside of the bar Whether or not the plaintiff was intoxicated is not a central feature of this case

Issue: Was there a duty of care on the part of the bar owner to prevent harm to the plaintiff?Held: YesReasoning:

It was foreseeable to the bar owner that ejecting both parties at the same time would result in one group attacking the other

But, the court says that foreseeability is not sufficient, there must also be a duty of care (although duty of care is defined by the RP test and foreseeability) so must also prove a special relationship between the plaintiff and defendant – i.e. there must be a duty on the part of the defendant not to expose the plaintiff to harm

Duty will arise if the danger that awaits the patron is imminent and originated within the tavern

Court asks whether the duty to rescue would be onerous on the bar owner – court decides that there was no real burden for the bar owner to take steps to prevent harm to the plaintiff

Duty would end when the police or taxi arrived, attacker were seen to have left, or when the men reached home

Ratio: There must be a special relationship between the plaintiff and defendant in order for there

to be a duty of care (e.g. commercial profit) to prevent the harm caused to the victim Court will take into account the burden of taking steps to prevent harm to the plaintiff in

deciding faultComments:

Principle of Jordan House can be applied to cases where the plaintiff was not intoxicated this case extends the duty to rescue of a bar owner to patrons who are not intoxicated

Is this an act or omission? Distinction is often not very clear Creation of a danger for one’s own (often

economic) benefit Crocker v. Sundance Northwest resort

Crocker v. Sundance Northwest resort [1988]Facts: Crocker entered into a tubing competition at SNR. He signed a waiver of responsibility without appreciating what he was signing. Prior to the race, C drank by himself and was served at the bar while wearing a bib indicating that he was a competitor. He was visibly drunk, wiped out and hurt himself but won the first heat. Between heats he was asked by the owner of the resort as well as the manager whether he thought he should continue the race. He said yes and proceeded to drink more at the bar and the beer wagon.

104

Before the second heat, he lost his tube and was given a new one. In the second heat he wiped out and became a quadriplegic.Issue: Did SNR have a duty to act in preventing Crocker from competing despite his protests?Held: Yes.Reasoning: There was a duty to act (and the creation of a ‘special relationship’) because:

SNR “created” the risk for their commercial advantage or “profit.” They had “control” over the event (could have easily not subjected him to injury) The activity was inherently dangerous They knew that the plaintiffs were drunken

Khoury: These last 2 criteria seem to be more indicative of ‘fault’ than necessarily duty to act.

SNR was found to be at fault for their failure to act the burden of preventing the injury was fairly low. The avoidance of the accident was both foreseeable and preventable.

Common law has traditionally distinguished between misfeasance and nonfeasance; generally reluctant to impose a duty to act for cases of omission

Cites Fleming – common law courts are more willing to expand the duty to act court is willing to impose a duty to act if there is foreseeability

Factors for imposing a duty to act:o Plaintiff was clearly intoxicated at the knowledge of the employees of the ski

resort; the resort’s bar sold additional drinks to the plaintiff (actually participated in the intoxication of the plaintiff); manager actually tried to stop the plaintiff, which shows that the resort knew about the plaintiff’s intoxication

o The activity was dangerous and at the full control and supervision of the defendant (i.e. the defendant could have at any time kicked the plaintiff out of the competition); the activity was promoted by the defendant for financial gain

o The defendant knew that the intoxication of the plaintiff was increasing the danger of the activity

Since there is a duty to act, the court then assessed fault (using RP test) – Sundance did not meet the standard of care because numerous steps could have been taken (at little expense to the defendant) to prevent the plaintiff from continuing, yet none of these steps were taken

Ratio:Common law courts are now more willing to expand the duty to act – as long as the injury is reasonably foreseeable and there is some special relationship between the plaintiff and the defendant (e.g. occupier and patron)

There exists a positive duty of care in instances where a ‘special relationship’ exists through a relation of control, profit or proprietorship and that standard is breached whenever the defendant fails to take at least elementary steps to prevent the plaintiff’s injury.

Comment: While Crocker was contributorily negligent, this does not absolve SNR of their responsibility. This case exemplifies a shift in CML’s willingness to impose a duty to act.

105

Control over third party who causes injury Dorset Yacht

o If no precedent - Should a novel duty of care be recognised?

Prima facie duty? Was the victim reasonable foreseeable to the

D? Was the victim in a proximate enough

relationship to D (features of the relationship other than RF)?

Are there policy considerations militating agst recognising a duty of care in the specific case?

o Eg. Childs v. Desormeaux Is the proposed duty novel?

Yes Closest application: commercial host Social and commercial hosts distinguished

Application of the testPrima facie duty

The victim was not reasonable foreseeable to the D

The victim was not in a proximate enough relationship to D

o Creation of risk or invitation to participate in highly risky activities

Social host doesn’t create enough of a risk –distinguishing case from Crocker v. Sundance

o Concern for autonomy Entrusting of relationship to

another is more of a parent-child etc sit ---ultimately social host isn’t responsible for adult guest

o Reasonable reliance Guests shouldn’t rely…

No need to check policy considerations militating agst recognising a duty of care

106

Fault (2nd angle) – to determine fault you need to see if lived up to standard of care

Assuming there is such a duty (if pass DOC requirements) (or that the question is irrelevant – no duty of care in CVL)…

o Still have to pass reasonable person test Would a reasonable person placed in the same

circumstances intervene (act) so as to avoid harm being caused to another? ( standard of care?)

- Obligation to come to the aid of someone (Duty to rescue/omissions/nonfeasance)o (Duty to rescue is much less broad than duty to assist)o Duty of care

CML No duty to rescue (no positive duty to act) Exceptions =

o If D put P in dangero Special relationship between D and P

Employer/employee Relationships of control, authority, supervision

Parent/child Teacher/student Custodian/prisoner

Doctor/patient Occupier/visitor

o KASIRER questions whether exceptions are about being charitable (p104 CP, Kasier p584)

SUGGESTS NOT ABOUT CHARITY BUT THAT CERTAIN RELATIONSHIPS HAVE OBLIGATIONS

o Reasonable person test Would the reasonable person placed in the same circumstances have done

so? « Faute d’abstention » more accepted in civil law than in common

law: see 1457 CcQ There must be a duty to act (CML) (???)

o Specific legal obligation (CVL) Article 2 of the Quebec Charter

2. Every human being whose life is in peril has a right to assistance.

Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves

107

danger to himself or a third person, or he has another valid reason.1975, c. 6, s. 2.

Not creating absolute duty to rescue o only if person’s life is in danger o if won’t affect your lifeo if you have another good reason

inspired by penal provisions in France which make it illegal to fail to prevent harm …..

German origin where instituted so had to act to prevent harm to occupying soldiers

Other statutes, eg: An Act respecting health services and social services Public Health Act Code of ethics of physicians

- Nonfeasceance vs misfeasceance --- often can be each other depending on how broad of an approach you take

o Eg not stopping someone from driving can be an omission but then if you look at general context of a party it could be misfeasceance in that created a risk

- Is the law preoccupied with (Khoury asks)o Encouraging “rescue”?

Direct Article 2 Qc Charter

o Also note conditions where don’t have to help Indirect

Limitations of liability to ‘gross negligence’o art. 1471 CcQ

1471 CCQ Where a person comes to the assistance of another person or, for an unselfish motive, disposes, free of charge, of property for the benefit of another person, he is exempt from all liability for injury that may result from it, unless the injury is due to his intentional or gross fault.

o Good Samaritan Acts (CML) Rescuer compensated if injured: An Act to promote good

citizenship (Qc) OR is it preoccupied w/

o ‘Being good’ or Liability? (See Kasirer’s discussion) (talks about moral/religious aspect etc) (more next class??)

- Also note –what is dif btw CVL and CML approacho CVL enforces more but is more lenient? In application?

Sara summary –

108

- DUTY OF CARE = who is your neighbour, does victim etc belong to the category of people to which you owe a duty of care

o If indiv belongs to cat. of people to which you owe a duty of care then you have a DUTY TO ACT

If you act or don’t act, have you lived up to the STANDARD OF CARE required of you.

Breach of standard of care constitutes a FAULT and leads to determining NEGLIGEANCE

Now what once you’ve determined injury

DEFINING THE SCOPE OF CVL LIABILITY

Revisiting the causal connection : directness and forseeability (legal causation)

Factual causation (Cause-in-fact)

- Telling the story- Factual explanation - If there is no factual causation don’t bother continuing on question = would

event/outcome have happened w/out negligence

Legal causation (Remoteness, proximate cause, scope of liability)

- Attributing liabilityo Is defendant's fault retained as a legally effective cause of the injury (is it a cause or a

mere condition of the injury?)? It’s a fact but is it legally recognized

o If yes, will defendant be held liable for the whole of P’s injury, or only part of it? percentage

- Based on value judgments and policy considerations (not causation!) (a la Palsgraf)o “Is it appropriate to hold D liable?”o “To what extent”

- Trying to move blame onto someone else- Something occurs in course of events breaks chain of events etc where wouldn’t be fair to

fully attribute liability - Takes imp points of factual causation where there might be a person to transfer losses to

NOTE: CVL doesn’t really make a distinction btw factual and legal causation and often deals w/ them together

Two techniques for assessing legal causation (scope of liability)

- Directnesso

109

1607 CCQ The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor's default.

o Re Polemis (rejected in Wagon Mound 1)o Injury must be the direct and immediate consequence of the fault (art. 1607 CcQ)o Implies that there is no intermediate event that is more directly linked to the injuryo Retained in civil law and early common law (Re Polemis)o In Civil law, how wide perimeter drawn may depend on the causation test retained:

Équivalence des conditions (causa sine qua non) Causalité adéquate

o The common ground of all cases using directness is that once there is a duty of care, you are liable for all the consequences of your fault (Palsgraf)

In Re Polemis and FurnessFacts

Plank falls into the hole of the ship which creates a spark The spark ignites petrol vapours and the ship is destroyed Destruction of the ship was an unforeseeable consequence of the dropping of the

plank (i.e. it was foreseeable that the dropping of the plank would cause some damage to the ship, but not that it would destroy the ship altogether) – so it was important for the plaintiffs that the court adopt the test of directness (because if reasonable foreseeability was used, the plaintiff would not get compensation)

Issues- Is there a sufficient causal connection between knocking over the planks and the

subsequent fire?Held

- Yes (courts use directness)Reasoning

- plank falls negligently and incident is direct consequence of act (a la but-for)Bankes LJ: There was directness between the dropping of the plank and the destruction of the

ship (i.e. no intervening events except the presence of petrol vapours – which was not seen as breaking the direct link)

Irrelevant that the spark caused by the falling of the plank was unforeseeable (b/c it’s the kind of damage that must be foreseeable??)

Warrington LJ: Reasonable anticipation of damage is determinative of negligence, but not of

causation – i.e. reasonable foreseeabiliy is relevant to fault, but not to causationScrutton LJ: Foreseeability is necessary to determine fault, but after fault has been determined,

reasonable foreseeability is immaterialRatio:Reasonable foreseeability is only relevant to fault, not to causation – causation is determined by directness

- Likely would have been decided differently today

110

- Foreseeability (reasonable)o Wagon Mound 1o If exact loss was RF then loss is proveno Unfair to hold D liable for losses that are:

Disproportionate to what was expected Disproportionate to magnitude of the fault

o D must have reasonably foreseen that his fault could cause the kind of injury that happened

o **Test retained in common law (Wagon Mound I)o **Test sometimes retained in civil law, to restrict results achieved through directness

test Brisson v. Potvin Canéric (But see Joly v Ferme Ré-mi)

Wagon Mound 1 (Overseas Tankship)Facts

Oil was spilled into the harbour The dock manager conducted an inquiry and determined that it would be highly

unlikely for the oil to catch fire on water, and instructed the welding to resume, ensuring that all necessary would be taken

Spark from welding ignited the oil and the ship was destroyed (damage was completely disproportionate to the fault – which was just the spilling of oil)

Issues- Was there a sufficient causal connection between the spilt oil and the fire?

Held- No

Reasoning “…it does not seem consonant with current ideas of justice or morality that for an act

of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be direct.”

The directness rule in Re Polemis is overruled and replaced by the test of foreseeability

Under the test of directness, the worry is that defendants will be penalized excessively (i.e. for injuries that are disproportionate to the fault)

The essential factor for determining legal causation is whether the damage is of the kind that the reasonable person would foresee i.e. reasonable foreseeability

It was unforeseeable that the oil would catch fire Plaintiff liable for damage from oil spill

Ratio

111

The common law no longer uses directness as the test reasonable foreseeability is now the test not responsible for that which isn’t reasonably foreseeable

Comments:- Wagon Mound II decided that the oil catching fire was in fact reasonably foreseeable

even though engineer was wrong in dumping oil

Eg of directness vs foreseeability

Falkenham v. Zwicker (Nova Scotia, 1978)

- Defendant driving in excess of speed limit on slippery road- Tried to avoid cat- Collided with plaintiff’s fence- Fence staples scattered around – no cows in field at the time- Several months later: P’s cows ate staples and became ill or died as result

DIRECTNESS TEST: Is defendant liable?- Yes, the staples were the direct cause of the injury and they would have not been there if the

defendant would have not had the accident - Could directness be limited because no one collected the staples?

FORESEEABILITY TEST: Is defendant liable?- It was not reasonable for a person in her position that months after there should be cows there

which would become ill It is only reasonable to foresee that her driving would wreck something (like the

fence)- It could also be argued (and the court decided) that it was reasonable to foresee that cows

would become ill because of a result of her negligence This has been highly criticized by some commentators

Judges also use legal causation to achieve outcomes that they deem fair, without necessarily basing themselves in legal reasoning flexibility

Flexibility in the language of directness

- Very broad in principleo Liability for all consequences of negligent conduct

Palsgraf, Andrews J. Joly v Ferme Ré-Mi

112

Joly v. La Ferme Re-Mi [1974] CVLFacts

The appellants hit a hydro post with their car, which caused power failure/blackout in a nearby henhouse

Hydro Quebec had acted with reasonable diligence in effecting the repairs (no negligence on their part)

The chickens owned by the respondents (22,500 of them) subsequently died because of the stoppage of the electric ventilator it was a very hot day

Issues- Should the appellants be held liable for the loss of the respondents?

Held- Yes direct and immediate consequence

Reasoning Kaufman J:

1. P must demonstrate that injury was the direct and immediate consequence of D’s acts and not due to his fault or the fault of a third party such as Hydro (524).

2. “But was the loss and immediate and direct – or, as some would say, a foreseeable – consequence of the accident?” (LK: Kaufman associates directness with RF. Usually, these two tests are independent from one another, the first usually thought to be broader than the second. same assimilation occurs in Brisson (Pratte, J.). (524).

3. citation from Boutin v. Paré: reference to fact that other successive causes could have formed independently from the fault or actions of D (524) (This is more in line with a directness assessment: are there other causes, independent from the defendant’s fault, which could be more directly related to the injury?)

4. **Concludes that death of chickens was an immediate and direct consequence of accident (524).Gagnon J:

KH:- as with Crête J., there is an objection to rely on the RF test to assess causation, - a test which Gagnon J believes is no place in QuebecCVL b/c of CMLorigin. - Khoury believes he is mistaken when he says that relying on a test that asks whether

the damage would have occurred ”in the natural course of event” is equivalent to RF. – - The “ordinary course of events” refers to another causal theory, the “adequate

causation” theory which, although it is sometimes thought to be close to the RF, actually presents different features).

Directness should be the main factor for determining legal causation – not reasonable foreseeability [p. 119] – reasonable foreseeability does not have a place in the civil law (the civil law should not be guided by the common law)

In this case, the death of the chickens was a direct and immediate consequence of the fault

C rête J: 1. Emphases that no other intervening agent between accident and suffocation and death

of the chicken (no novus actus interveniens only numerous factual causes which don’t break directness) (524);

2. “Il arrive qu’un accident banal ait des répercussions considérables dans la réalisation du préjudice. Ce facteur n’atténue en rien la responsabilité qui en découle (524-25) (LK: Crête J tackling directly the issue of RF and stressing that it does not matter whether the consequences of a “banal” accident are greater than what one could anticipate. Other systems disagree (common law) and believe that this matters a lot!).

113

Ratio:- The judges in this case differ in the interpretations of directness (i.e. Kaufman uses

reasonable foreseeability in his assessment of directness, while Gagnon does not)- This case illustrates a broad application of the directness test. - It also shows how a system that privileges directness over reasonable foreseeability

may be more inclusive- Under RF assessment, likely would not have come to the conclusion that the kind of

damage that occurred (the death of 22,500 chickens) would have been RF to D. - there is recovery because what matters is whether there is a direct link between the

accident and the chickens’ death.

- In civil law, judges do not rely systematically on a single theoretical approacho Influence of German theories:

Equivalence of conditions Adequate causation

o Influence of reasonable foreseeability? Brisson v Potvin

Brisson v. Potvin [1948] - CVLFacts

- 6-year old girl lost one eye after being hit to the head following a collision with a car.- D, the owner of a truck, was delivering wood on St-Charles Street in Chicoutimi at the

time of the accident. - There was another defendant in first instance (in the Superior court), the driver

of the car which hit P (little girl) =D2, although he was exonerated by the superior court

- D had stopped his truck crosswise on the street. It was blocking not only the sidewalk but also a great part of the street.

- pedestrians had to go around the truck had to walk in the street further than the middle of it. cars had to turn off to the left and use the part of the road reserved to the vehicles going in the other direction.

- D2 had to manoeuvre to avoid the truck. As he was passing it, driving slowly, he hit P.

- It is not known whether P was trying to pass around the truck, or to cross the street.- Art. 8 of the Chicoutimi Bylaw 309 unless it is to give way to another vehicle or to

pedestrians, a driver shall not park his car in a street or public place elsewhere than close to the right sidewalk and without obstructing the street.

Issues- Is there causation between the faulty manner in which the truck was parked and the

defendant’s injury?Held

- NOReasoning

Pratte J: For something to be the “direct and immediate consequence” of a fault, it must be the

logical consequence of the fault To be the logical consequence of the fault, it must be reasonably foreseeable –

114

“normalement imprevisible” Khoury: It is surprising that Pratte J. would calculate that direct=logical=reasonably

foreseeable—not mainstream thinking today- **Not sufficient too say that accident would have been avoided if Potvin had acted

differently (Khoury Here, he clearly rejects directness as the test).- Intermediary event cuts the chain of causation only if more directly link and not

foreseeable to first agent; (Khoury: novus actus interveniens doctrine may be that all the references to reasonable foreseeability are used here by Pratte J. to justify his conclusion that there is no novus actus interveniens)

- Appl. to facts: to have RF, should have known that there were kids around, which was not the case. A chain of events independent from Potvin and normally unforeseeable to him are more directly linked to the accident.

(Khoury this is surprising b/c it is a subjective assessment! One should not care about P’s foreseeability the fact that it has not been proven that P actually knew there were kids in the neighbourhood should not matter. Important = what a RP would have foreseen)Galipeau- Fault of D= occasion of the damage; Dm is not the natural and immediate

consequence of fault.- (KhouryThat’s because he comes to a different conclusion on the facts: one does not

know why she crossed the street the way she did. We do not know if it was because of the truck)

St-Germain (dissent):- It was foreseeable that pedestrian would have to go around truck;- Sufficient that he could foresee when concluding to lack of care;- Would have been easy to keep close look… (Low burden of precautions) (Khoury All of St-Germain J.'s references to reasonable foreseeability are made in

the context of assessing fault, not causation. They are always linked to his assessment of whether D took reasonable precautions).

Without the fault of the defendant, the injury would not have happened this is the directness testLK: St-Germain J ‘s assessment of causation is essentially based on a broad conception of directness).

Comments- case is a bit tricky - some of the judges believe that directness is shown… by showing reasonable

foreseeability. - This demonstrated not only that reasonable foreseeability may have an influence in

a civil law jurisdiction, but also that judges sometimes may define directness in the way they think fit!

- What is direct depends on common sense and the judge’s “feelings” rather than on legal principle and logic

o STARCK, ROLAND & BOYER One of biggest problems with plurality of causes = how do you select the “cause

juridique”? Cause (a) engenders liability when established between fault and damage and (b)

justifies exoneration when the D establishes force majeure

115

L’exigence d’une causalité directMust be direct and immediateWhere it is found (essentially wherever there is no intervening fault)Where it is not found—3rd party faultWhere the courts waffle—where it is direct and indirect - suicide induced by trauma, “dommages en cascade”La divergence de la doctrine

(a) Equivalence of Conditions Retains all necessary causes as of equal value Narrows the field by selecting only those that are faulty (St. Germain in Potvin)

When you apply the “but for” test strictly (Joly v. Ferme Re-mi)(b) Adequate Causation - Retains direct causes that in normal circumstances can be expected to engender

that damage- High risk of arbitrariness

Judges tend to have different standards depending on whether the fault was serious, merely negligent, or intentional (with respect to the scope of consequences that will be retained)

- Has to have sufficient foreseeability (Morisette v. McQuat).

- No logical rule??- Praised for its flexibility

o Eg, Morissette v McQuat

Morrissette v. McQuat and Sons [1958] – CVLFacts

- P unloads truck in D’s warehouse and wants to secure cylinders that were in his truck with a chain.

- While doing so, the chain broke and P fell on the warehouse platform right onto a 10 inches spike, which was there to hold the doors of the building open.

- one could argue that there were two possible causes of the injury- 1) the breaking the chain and/or - 2) the presence of the spike, - Khoury says “and/or’ b/c doesn’t see why the court could not conclude that both

these factors led to the injury (thee is no need to single out one cause

(Khoury there were two claims raised in this case: 1)one under 1053 CCL-C (ancestor of 1457 CCQ) on the basis of the warehouse owner’s negligence in allowing a dangerous object at this specific spot. 2) a claim under 1054 CCL-C (the ancestor of 1465 CCQ: liability for one owns deeds). Although causation is dealt with both at the level of art. 1054 analysis and 1053, focus on 1053. 1054 has different considerations coming into play such as the condition that the thing has played an ‘active’ role.)

Issues- Should the defendants, the owners of the warehouse, be held liable for the injury?

(Was there causation?)Held

116

- NOReasoning(Bissonnette J)

- He asks: Has the D committed a fault and is this fault the cause génératrice, la cause efficiente du préjudice? (687) (Khoury: the « direct cause », the cause which, from a legal point of view, will lead to legal consequences in terms of liability)

- The spike has hurt the P, but it has done nothing for this to happen. It was an inert thing and it has remained thus (687). (K: inertia is a relevant consideration under 1054 (fait actif de la chose) as we discussed last term, but why is it important under 1053 CCL-C?)

- It is the breaking of the chain that is the accident’s cause génératrice. It has played a preponderant role. (687). (K: Just because the chain was “active” and the spike not? That is a very debatable way to choose amongst the possible causes the one that is truly « génératrice de dommage »).

- P argues that D committed a fault by installing such a dangerous object there. Even if he did, it was only an indirect and remote (éloignée) cause of the accident (687-88).

(Hyde J)

- The determining cause of the accident was the breaking of the chain, which was not strong enough to withstand the strain that P placed upon it. = caused him to fall on the steel spike. Instead of falling there, he could have fallen off the platform and broken his neck. (LK: just a coincidence that he happened to fall on the spike). (688)

- The situation would have been quite different if P had tripped on the spike causing him to fall (688).

RatioThe effective legal cause of injury must be generative of that injury, and not merely passiveComments

- **case shows how flexible the directness test can be. - Directness is thought by many to be very broad, and it is this broadness that led the

CML courts to reject it in favour of the RP test. - However, authors have praised it (and condemned it) for allowing so much

flexibility for the judge as to lead to arbitrary assessments of causation (mostly raised by the French doctrine). Morrissette.

Flexibility in the language of foreseeability

- In the reasonable foreseeability language:o Definition of the injury

Wagon Mound I Hughes v Lord Advocate

sufficient that plaintiff suffered kind of damage that was reas. foreseeable …

… although its extent or the manner in which it happened was not

117

Hughes v. Lord Advocate [1963] - UKFacts

Workers in a manhole left for a break; surrounded the hole with 4 lamps and covered it with a tent

Two children come by; they make one lamp fall in, which provokes an explosion One of the children falls in and is badly burned

Issues- Should the workmen be held liable for the injury? (Was there causation?) (were

injuries a foreseeable consequence)Held

- Yes (yes) (yes)Reasoning

Whether or not the specific event that caused the injury was foreseeable (i.e. the explosion) is irrelevant – all that matters is that the plaintiff suffered burns, a type of injury that is foreseeable the accident was caused by a known source of danger, that it happened in an unforeseeable way is irrelevant

It also does not matter that the damage was greater in extent than what was foreseeable

The only way the defendant can escape liability is if the type of damage suffered is not foreseeable

Ratio: It is not necessary that the precise details leading up to the accident be reasonably

foreseeable; it is sufficient that the plaintiff suffered a kind of damage th at was foreseeable (even if the manner in which the damage arose was not foreseeable)

Comments:- This is the main common law case re: reasonable foreseeability Injury by fire caused by the lamp was foreseeable, the fact that the explosion was not

is immaterial.- In this instance the injury was directly and foreseeably caused by the defendants. It

is not necessary to foresee the type of accident (explosion) but rather the type of injury (burn).

Tremain v. Pike (1969) UK (Lower court)

Facts: Plaintiff caught Weil’s disease through contact with water that contained rats’ urine while he was employed on the defendant’s farm

Issue: Was there causation? (Was the injury reasonably foreseeable?)

Held: No (No)

Reasoning:

Court found that the defendant was at fault because he did not control the population of rats on his farm

But, there was a problem of causation because the court decided that Weil’s disease caught by

118

urine of rat was unforeseeable (narrow definition of the damage) – although the court found foreseeable catching the disease by being bitten by the rat or by food poisoning (food or drink contaminated by rats)

Ratio:

Court exploits the inherent ambiguity in reasonable foreseeability to give a more restrictive definition of the injury – i.e. if you want to grant compensation, you would define the damage broadly (e.g. catching the disease by some contract with rats); if you don’t want to grant compensation, you define the damage specifically (e.g. catching the disease through rats’ urine)

Flexibility in lang of RF eg.

RF just/fair in the case of individual susceptibility?

In terms of reasonable foreseeability, it may not be just, given that a susceptibility is not usually reasonably foreseeable

o One could say, however, that if one were to characterize the injury as a type of injury but not a question of extent, then it could still be reasonable foreseeable

o Similar to Smith v. Leech Brain & Co. Ltd Once the accident happens the extent of the injury is not reasonable

foreseeable, but the accident was Wagon Mound I is not modified according to the judges but the thin-

skull rule is applied

Causa proxima (one causation theory…include rest?)

- If you have a list of events, the last one is the cause- This theory has been rejected because there could be more direct cause than the last one in the

chain of events

119

Multiple Wrongdoers and Multiple Causes Contributive causes so not either /or sit like Snell and Farell

Multiple Causes

- Multiple wrongdoers

D1 + D2

- Fault + Innocent act/event

D + Inn

Nature of injury

- The whole damage – INDIVISIBLE

Fault #1 Fault #2/Inn act/event

- A distinct part of the damage – DIVISIBLE

Fault #1 Fault #2/Inn act/event

Dif types of faults

- Common faults (not too clear on this)o Rather unusualo Eg. Conspiracy to damage your property (?)

- Distinct but simultaneous faults Most reasoning occurs ex-post.- Distinct and successive faults Courts often have trouble explaining how

o Most common arrive at decision for division

o Both faults lead to the same injury which is indivisible Though one injury is not necessarily the case for every situation

In fact, various faults could lead to distinct parts of the injury which can be attributed to the different defendants

o Eg.

120

Inj

Inj

Painter’s F. Concierge’s F.

Fault + Innocent Event/Act (successive fault)

- Judge’s discretion imp b/c so fact dependent, hard to use precedent ??? (a bit unclear)o Eg Athey

Whether damage/innocent event/back problems existed before fault Or whether fault + innocent event lead to damages

Mechanisms to overcome hurdles both of:

1)factual connection

2)the appropriate scope of responsibility

- Divisible Injuryo Causal Approach

Each fault has caused a different part of the injury (but what does this mean for compensation?? –cost is divisible??)

Each is responsible for the injury caused (is this reflected in compensation? – I think so?)

- Indivisible Injury

o Multiple wrongdoers only

Solidarité / Joint and several liability

All faults have participated in production of the injury Common or distinct faults Provided for in 1526 C.c.Q.

1526 CCQThe obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra-contractual.

Provided for in provincial statutes (like??) Apportionmen t

121

Inj

o Each defendant is liable to compensate for the whole injury but plaintiff only gets compensation once from one person

Payment by one frees the other as against the plaintiff

Def who has not paid owes contribution to def who has paid

o Eg. Judgment against D1 and D2

for 100$ (« jointly and severally » - 50/50%)

P executes against D1 100$ D2 owes D2 50$ (No concern

to P)o Defendant only needs to be A cause of the harm not THE

cause How to decide contribution btw defendants

o FAULT

If both faults are similar, then you divide it 50/50 (yes we are looking at fault under causation) ((how does percentage of fault affect contribution?

If both are liable for 100%, but fault determined at eg 40%, does that def only pay 40% in reality b/c other def pays him back 60% or vice versa??))

And then there’s the Sindell case where compensation occurs by market share for harmful drug

o Apparently seen as a dangerous precedent b/c unfair for women not to get compensation b/c can’t prove what company it was but also unfair to companies to pay for something they didn’t necessarily have anything to do with

ECO often hesitant to use the seriousness of the fault as determinative factor as this is a matter of punitive systems

1478 CCQ (but how does this affect what they actually pay?)

1478 CCQ

122

Where an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of the fault of each.The victim is included in the apportionment when the injury is partly the effect of his own fault.

Eg. Deguire

Deguire v. Adler [1963] – CVLFacts

Adler hired painters to paint an unoccupied apartment. The painters shut off a gas main and disconnected a gas pipe, which they forgot to

reconnect upon completion. Several weeks later, the building’s janitors accidentally turned on the apartment’s

gas when performing repairs. A janitor smelled gas but was unable to prevent a subsequent explosion from

occurring resulted in gas filling up the apartment Somehow (unsure how), a flame was ignited and the apartment exploded – caused

injury to the tenants of the apartment next door (Dame Cousineau)Issues

- Who should be liableHeld

- Janitor and painters are jointly liable (50/50)Reasoning

The accident would not have occurred were it not for the painters’ act, and so they are the first cause. In this case, the painters’ fault was actually ongoing

While a janitor negligently opened the valve, that doesn’t eliminate the painters’ fault.

To establish liability of each party there must exist the fault of each party, a causal link between the injury and the fault, and a unique contribution to the injury from the faults. Since all are present, both are liable.

Fault #1 = painters created a danger that they could have foreseen and should have prevented (reasonable person test)

Fault #2 = janitors accidentally turning on the gas Other cause = person who created the contact between the fire and the gas (factual

causation problem because it is unsure how this happened exactly)Choquette J: There is a “concours de faute” – attributes liability 50/50 with the result that the

victim can go after the contractor and after the owner (together they are liable for 100% of the injury)

Rivard J: Agrees that there are three factors (with two being faulty) – also insists on a

contributory aspect where the two faults led to the whole of the damageOwen (dissenting):- Measured the different causal impacts of all of those faults and decided that since the

situation created by the painters could have existed without any consequence, it was

123

the janitors’ actions that caused the injuryRatio

Where multiple, independent causes are established all wrongdoers are jointly and severally liable unless the relative impact of each cause can be established.

- victim can go after either of the defendants for 100% compensation for the injury (but, since the judge attributed liability 50/50, one defendant can claim the 50% share from the other if he pays all of it)

Eg. Caneric

Caneric Properties, Inc. v. Allstate Compagnie D’Assurance et Ville de Montreal [1995] – CVLFacts

- Caneric owned a building that was soon to be demolished. - The building’s water pipes began to leak into the neighbour’s basement and C called

the City of Montreal to shut off the water. - City employees did not complete the job and - 6 days later the pipes burst, flooding the neighbour’s basement.

Issues- Whose fault was the legally effective cause of the damage?

Held- Caneric and city of Montreal are jointly liable – 50/50

Reasoning Fault #1 = Caneric (owner) for not taking precautions to render the building safe (i.e.

ensuring that pipes in the building will not explode) Fault #2 = City of Montreal for leaving when there was still one pipe that had not

been taken care of (the team could have taken a variety of measures to prevent the damage from occurring)

Fault #3 = Caneric (owner) for not supervising the situation and not doing anything even though they knew their building presented a danger

Baudouin insists on the directness test for legal causation – but links it to the adequate causation test – goes further and asks if the author of the fault could have reasonably foreseen the injury (applies the reasonably foreseeable test after the directness test) decides that the pipes bursting in the cold is reasonably foreseeable because it happens all the time in Quebec in the winter

Baudouin ends up eliminating Fault #1 because there was not enough directness between that fault and the injury – too remote in time to have contributed directly (this is odd because this reasoning does not really have to do with directness and foreseeability, which hold time irrelevant. Yet, he later tries to link them. It seems more like a disguised novus actus consideration.)

The City of Montreal and Caneric are jointly liable (50/50) because the faults are not of different seriousness (i.e. same gravity of the fault)

Ratio: Baudouin introduces the idea of reasonable foreseeability into the test for legal

causation (foreseeability test comes after?) Remoteness in time is used to eliminate one of the faults as being a contributory

cause (weaker – Directness and foreseeability are used to decide causation, not

124

proximity in time.) Example of joint and several liability (in this case it was 50/50 because there is no

difference in the severity of the fault)Note:Baudouin also says that if one of the faults is a lot more serious than the other, then that wrongdoer will be held 100% liable (novus actus interveniens)

Provincial statutes (?) Criticism = Many see outcomes of these cases as

too arbitrary

o Intervening Innocent Act

Innocent event + fault Cumulative event Imp whether the innocent even precedes or follows the damage In Canada as far as causal assessment is concerned, the innocent event is

ignored and the defendant is held liable for the injury So at the level of fault analysis it makes no difference, there is full

liability BUT When calculating damages, the innocent event could make a

difference ***It’s sufficient that defendant is A cause of the harm sufficient that

D has « contributed » in a more than de minimis way to the occurrence of the injury

This is argued in CML through the material contribution testo This test came from Bonnington Castings v. Wardlaw

where the but-for test is unfair Bonnington Castings v. Wardlaw

- The plaintiff was breathing dust as both the result of the defendant negligent behaviour but also for other reasons which would have not led to the same extent of harm

- Impossible to determine which dust led to the injury

- Maybe the injury would have happened anyway, but the fault contributed to the injury in a de minimis way New test: the material contribution test

As long as your fault has materially contributed to the injury we are going to hold you liable for the whole injury and exclude the innocent event

125

o Athey v. Leonati treated similarly by SCC compare w/ JE Construction

Is it fair to hold a defendant liable if he is not necessarily the cause for the harm?

****Fairness comes in at the level of calculation of damages What would have been the plaintiff’s life if fault had not occurred?

This is not the same question as would the injury have happened, but how would the defendant be living at the time of the trial

o What is the chance that the injury would have been developed

- Novus Actus Interveniens

o New intervening act or event Which is more appropriately at fault That broke the chain of causation

o How to decide whether this second fault breaks the chain of causation Relative seriousness of each fault Ambit and degree of risk created Foreseeability (CML) 1470 CCQ + Act of God def’n

1470 CCQ A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.A superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.

Force majeure o In the common law, the equivalent concept is “act of God” or

“superior force”

126

o This argument will only work if:

1. The intervening event occurred after the fault2. The intervening event was not reasonably foreseeable

by the defendant 3. There was no possibility of preventing the non-faulty

factor from occurring) 4. The event is exterior to the actions of the defendant

(this has come up with regards to employer’s liability in event of labour strikes)

This is a severe burden of proof on the defendant, so it is not an argument that will be successful very often

o Egs storms that were unforeseeable and could not be guarded against; lightening; sudden and unforeseeable sickness; act of a child with no discernment could qualify (as long as it is unforeseeable and unpreventable); the unforeseeable act of a third party (someone whom the defendant does not have any control over); strike is difficult to qualify because it is difficult to show that it is completely unconnected to the defendant

o Eg Watt and Scott

City of Montreal v. Watt and ScottFacts:

Sewer running along respondent’s premises; respondent’s cellar was connected to the sewer

Sewer became full and overflowed into the cellar SCC: sewer became full because of “Act of God”, so the City was not responsible for

the damage; SCC decided that the defendant would only have to pay half of the damages calculated by the trial judge (the plaintiff could have avoided some of damage, so they were partly responsible)

Issue: Is the City of Montreal liable for the damage caused by the sewer system? (Does a. 1054(6) apply to a. 1054(1)?)Held: Yes (Yes)Reasoning:

Reviews divergence of opinions and takes the position in favour of applying par. 6 to par. 1

Therefore concludes that if the storm was indeed a force majeure and if the appellants have shown that they constructed a sewer in a way that is reasonable, then they can show absence of fault (under par. 6)

However, the City of Montreal does not show absence of fault because the court identifies different precautions that could have been taken

Note: Court never required Watt and Scott to prove faultRatio:

a. 1054(1) sets out a more general regime for the deeds of things.Decides conclusively that a. 1054(6) applies to a. 1054(1) and thus it is a presumption of fault

127

regime (not presumption of responsibility regime) that is adoptedComments

- affirms decision from Doucet v. Shawnigan Carbide- Courts expect a high level of unpredictability

Q v. Minto Management Ltd. [1985] (Ontario High Court of Justice) – not in CP but discussed in class

Facts: Q was raped in her apartment by an employee of her landlord who probably gained access by means of a master key. There had previously been a rape in the building and the landlord did not warn the tenants or take any additional security steps.Issue: Was the landlord negligent in not taking the proper precautions to protect tenants?Held: YesReasoning:

While the landlord could not have foreseen the specific individual who undertook the act, the action of the wrongdoer was not too remote to be reasonably foreseeable.

The landlord knew of the previous rape and did do anything to protect the tenants, despite knowing that it was probably done by someone with a master key.

By failing to provide proper security the landlord increased the risk of criminal activity (the second fault is more likely to occur of the first fault does).

Ratio:You cannot claim Novus actus interveniens (new intervening act) if the act is reasonably foreseeable.

Advantages and disadvantages

- Complexity of multiple wrongdoers - can be adv. for PL b/c if can show Def was at fault can get full compensation- can be adv for Def b/c can share fault and compensation - NOTE – experience of judges is what makes these decisions

PLACING THE VICTIM/PLAINTIFF UNDER SCRUTINY

Predisposition of the Victim

- Predisposition necessarily happens before the fault

128

‘Thin skull rule’ / take your victim as you find them- If the predisposition hadn’t manifested itself bef the accident - In choosing btwn burdening the plaintiff or the def. for the predisposition, we choose the

defendant

- “Thin-skull rule” = The principle that requires a tortfeasor to take his victim as he finds him and to compensate him to the full extent of his injuries even though they may be more serious than expected b/c of the plaintiff’s pre-existing conditions, predispositions, and vulnerabilities that may have increased the chance of the injury is irrelevant – as long as some physical injury was reasonably foreseeable, it is not relevant that the injury develops into something unforeseeable and if condition hasn’t manifested itself at the time of the fault

- CANE Cane’s point on arbitrary nature of law is noticeable here where same injury suffered can have dif results where one person is compensated for an injury, the person next time can be refused

- Discount

o When calculating quantum of damages only Eg. Smith v Leech Brain

the defendant did not have to compensate the whole injury because he was able to prove that the worker would have developed cancer anyway at some point – but this was taken into account at the assessment of damage level, not at the causation level

= ‘Crumbling Skull’

- is tacked onto the thin skull rule- used for calculating quantum of damages- if the predisposition has manifested itself- mitigates some of the harshness of the thin-skull rule vis-à-vis the defendant

o while thin-skull rule is a rule of liability crumbling skull rule relates to the assessment of damages

o while general principle of tort damages is that the PL must be returned to the position that she would have been had it not been for the accident the Def isn’t required to place the plaintiff in a better position than she would have been in

o WRONGDOER IS ONLY LIABLE FOR DAMAGES THEY HAVE CAUSEDo So if PL’s existing condition (a thin skull) is one that has caused no debilitating effects bef

the accident and wasn’t likely to cause adverse consequences in the future = full damages awarded

o BUT if pre-existing condition (a crumbling skull) has produced some debilitating effects prior to the accident or is, independently of the accident, likely to cause some disability in the future = DEF ISN’T LIABLE FOR THE FULL EXTENT of the damage only LIABLE

129

FOR WHAT THEY HAVE CAUSED and damages are calculated to compensate PL to the extent that the def worsened the PL’s underlying condition

- So Leech Brain uses crumbling skull rule but Athey doesn’t

Smith v. Leech Brain [1955] – UKFacts

Worker at a steel mill must dip large object into liquid hot metal, protects himself by using piece of corrugated iron (makeshift system)

As he is looking around to check his work, got his head out of protected area, and a drop of metal hits him in the lip and burns him

The injury later develops into cancer and he dies; his wife sues Because the worker had worked in the gas industry for such a long time, he was

prone to cancer and might have had a pre-malignant condition resulting from contact with tar, so that burns could cause cancer to develop

(although it is equally possible that the cancer might have developed even if he had not suffered a burn)

Issues- Was there causation- (was the injury reas foreseeable)- Was the burn an effective cause of the death?

Held- Yes- (yes)- yes

Reasoning LB was negligent for insufficiently protecting its employees from splattering metal

so fact that some injury could occur is foreseeabile There are three possibilities when determining whether the death was caused in

whole or part by the burn.1. The cancer may have been caused by the burn itself2. Not merely a pre-malignant condition but malignancy itself existed long before

the accident.3. Smith’s work in gas means he had a pre-malignant condition and the burn was

the agency that made the cancer develop. On a balance of probabilities, Lord Parker determines this is the correct view.

Therefore, but for the burn, Smith would not have developed cancer, and so it contributed to the death.

- A tortfeasor takes his victim as he finds him, thus pre-malignant condition is no defense

the thin-skull rule: as long as the burn was reasonably foreseeable, it is not relevant that the injury develops into something unforeseeable the principle in the thin-skull rule is that the whole of the injury will be compensated

Ratio Example of the courts using a broader characterization of the injury to grant

compensation “Thin-skull rule” = pre-existing conditions that may have increased the chance of the

injury is irrelevant – as long as some injury was reasonably foreseeable, it is not relevant that the injury develops into something unforeseeable

130

A latent pre-condition that is particular to the victim will not preclude liability if it has not manifested itself at the time the fault was committed.

Comments- Here, the defendant did not have to compensate the whole injury because he was

able to prove that the worker would have developed cancer anyway at some point – but this was taken into account at the assessment of damage level, not at the causation level (THIS IS APPLICATION OF CRUMBLING SKULL RULE)

- (((((Int arg for foreseeable damage, with the defendant arguing that he should be liable for the burn, not the death arising thereof.

- On the basis of Hughes v. Lord Advocate, if you are the company you plead that the type of the injury must be foreseeable, and the manner need not be, so if the type of injury is cancer, it was not foreseeable.

- This case says even if the type is unforeseeable, we don’t care – this is an exception to the rule established by Hughes v. Lord Advocate, but does not establish a new precedent. ))))

Also in comparing to Hughes v. Lord Advocate in both cases, the injury was greater in extent than what was reasonably foreseeable

The difference between these cases is that in Hughes the injury was different because of the manner in which the injury arose; in Smith, the injury was greater than reasonably foreseeable because of a predisposition of the plaintiff, (i.e. he had a greater likelihood of developing cancer)

Athey v. LeonatiFacts: Athey had a pre-existing back problem. He suffered back injuries in two successive car accidents. As his condition began to improve, his doctor suggested he resume his normal exercise routine. While stretching at a health club, Athey felt a pop and herniated a disc in his back.Issue: Whether the disc herniation was caused by the injuries sustained in the accidents or whether it was attributable to the appellant’s pre-existing back problems (tortious v. non-tortious causes).Held: Defendants are liable.Reasoning:

The plaintiff must prove on a balance of probabilities that the faults of the defendants materially contributed to the injury (material contribution as a substitute for the ‘but for’ test).

The general test for causation is the “but for” test – but this is not conclusive The “but for” test is unworkable in some cases, so causation is established where the

defendant’s negligence “materially contributed” to the occurrence of the injury A contributing factor is material if it falls outside the de minimis range (McGhee)

[The court’s finding that the accidents contributed to 25% of the injury falls outside the range]. He is willing to make a deduction if you can prove that the victim’s situation is already going to be bad.

as long as a defendant is part of the cause of an injury (not a cause of part of the injury), he will be liable for the whole of the injury

The thin skull rule states that you must take the victim as you find him. It applies in

131

this instance because back problems are a naturally arising disposition, even if they were not sufficient to cause the injury.

Major J. suggests that this rule is applicable because if the compensation was split between tortious and non-tortious causes, it would be too easy for the defendants to exonerate themselves. The balance of probabilities is also problematic because there are a whole host of possible contributing facts which would result in the defendant having to pay for injury which he did not cause, defeating the role of ECO replacing the victim in their original position.

The crumbling skull rule is applied when the victim is said to have an above average chance of injury. The risk of injury must be a ‘real and substantial possibility’ and a ‘measurable risk of damage’ and not ‘mere speculation.’ This is to ensure that the plaintiff is not put in a better position, but failed because the defendants failed to establish that the plaintiff adequately met this criteria.

Ratio: If a defendant’s actions can be shown to be a cause of the injury, the reward is not

reduced to account for the existence of non-tortious causes (ignore non-faulty factors).

Comment: Bonnington Castings is the predecessor of this case (UK) which says that the contribution of the defendant must not be de minimis (a non-trivial contribution, but a small contribution could be sufficient). The loss of chance argument is not so good because we are 100% sure that the defendant contributed 25% to the injury. In Laferriere we are not sure whether there was contribution on a balance of probabilities. This is not a predisposition case, because it is not clear that the hernia was actually linked to the back problems, so there was no predisposition to hernia, only to back problems, or further back problems.

- ***************This looks like the thin-skull rule – but the common law will make a distinction between “thin skull” cases and cases where the injury has manifested itself (“crumbling skull” cases) – but, Major J does not make the distinction in this case, as he simply applies the thin skull rule – could perhaps argue that there was a predisposition to the hernia which had not yet manifested itself? AND THEN COULD HAVE APPLIED CRUMBLING SKULL BUT DIDN’T?

Add-on for legal causation section1. General principles- If D’s conduct = a cause, no reduction of extent of liability (12);- When “but-for” test unworkable: material contribution test (15);

o You don’t need to be the sole cause, but just a significant causeo As long as the defendant contributed to the injury, he is liableo Enough that one cause arose from the defendanto The law does not excuse the defendant just because there are other innocent

factors related to the injury, as long as he materially contributed to it o There is always an innocent event , so it in itself should not be an excuse, as

defendants can always identify non-tortious contributionso This is motivated by the desire to allow the plaintiff to recover and get

compensations- Material: falls outside de minimis range (15);2. Justification for the rule

132

- Otherwise, P would rarely receive full compensation: (20). 3. Reasons why solution differ from response to multiple wrongdoers cases (22) & (23).- In this case the plaintiff is fully compensated and placed in the position before the

negligence of the wrongdoers- Each defendant remains fully liable to the defendant but the law provides that they can

seek contribution and indemnity from one another4. Application to the facts- Causation analysis:

o If herniation likely would have occurred w/out injuries suffered in accidents:(not proven) but-for defendant not liable;

o If necessary to have accidents + pre-existing condition for herniation to occur: (proven) causation proven on basis of but-for test negligence of defendant

o If accidents alone sufficient + pre-exiting condition alone sufficient unclear which was cause-in-fact (on but-for test) Must determine whether Defendant’s negligence materially contributed to the injury;

- Trial judge: o was necessary to have both pre-existing cond + accidents (43);

so could have been decided on but-for test and no need for mat. contribution

o Trial j.: accidents’ contribution = 25% (outside the de minimis range) = material contribution (44);

- This case involves straight forward application of thin skull rule. (47)

Marconato v. FranklinFacts

Predisposition – plaintiff had paranoid tendencies (non-faulty event) - Marconato was in a car accident with Franklin and sustained moderate cervical

strain and soft tissue damage. - Following the injury M developed pain and stiffness and became acutely depressed,

hostile and anxious. - Since the accident she was no longer able to carry on activities as wife and mother as

she had before.Issue

- Should the def be liable for all of the victim’s injuriesHeld

- YesReasoning

1. Court underlines very clearly the absence of reasonable foreseeability (i.e. it was not reasonably foreseeable that the victim would suffer the extent of injuries which she did)

2. Court outlines that the injury in this case arose because of pre-existing personality traits – particular sensibility on the part of the victim which explains the much greater consequence that flowed from the small physical injury that she suffered

3. Court recalls that one must take her victim as she finds them – this includes

133

particular susceptibilities (thin skull rule)4. Court refers to Smith v. Leech Brain5. Court applies the legal rules to the case and finds that the victim suffered from a

predisposition that actually caused the unusual consequences6. But for the defendant’s faulty act, the injury would not have happened the

defendant must take her victim as she finds her and pay damages for all the consequences of her negligence

Ratio: Confirms the thin skull rule – the defendant is to take her victim as she finds them- The exact injury does not have to be reasonably foreseeable – only the type of injury- Responsible for an unforeseeable consequence of a foreseeable injury- (although the injury can be manipulated by the courts like in Smith v. Leech

Brain)crumbling skull

Corr v. IBC Vehicles [2006] - UKFacts

- Following a serious injury at work in 1996, maintenance engineer Thomas Corr underwent extensive surgery.

- He suffered serious depression - and eventually, in May 2002, committed suicide. IBC admitted negligence. - His widow claiming damages etc

Issue- Is the Def liable for victim’s suicide

Held- Yes

Reasoning- key factor was foreseeability of a type of harm, not a particular outcome. - The foreseeable harm, as IBC admitted, was depression - the sole cause of the

suicide. - The chain of causation was complete. - Lord Bingham stated that "the inescapable fact is that depression, possibly severe,

possibly very severe, was a foreseeable consequence of this breach.......it was not incumbent on [Mrs Corr] to show that suicide itself was foreseeable.......a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take".

- Thin skullRatio- employer liable for employee's suicide where it directly resulted from foreseeable depression caused by accident at work

134

VICTIM’S BEHAVIOUR

- CML vs CML Question of…o Causation in civil lawo Defences in common law (still??)

Victim’s ‘negligence’ Assessing a victim’s negligence

- Reasonable person test (see fault)o Victim evaluated the same way as a defendant’s fault would be evaluatedo (notion of ‘another are you your own neighbour too?)

- Causationo Factual and legal causation assessed in same way

But can’t assume that b/c there’s fault on part of victim that there will be factual or legal causation

Sometimes victim will have committed a fault but that fault won’t have contributed to the particular injury in question

o Victim’s fault must have contributed to creating the injury

Allocation of responsibility

- Historically…o CML100% exoneration in common law for defendant

Victims at fault thought to be undeserving of compensation Tendency of old CML to seek out one single cause/ true cause There was also a desire to deter plaintiff/force them to act prudently Since it was a complete bar to compensation for victim fault of victim was a

defenceo Injustice of placing whole loss on plaintiff soon became apparent in CML

Esp in cases where victim’s act was small in comparison w/ defendant’s

135

Moved to apportionment in CML through statutory law E.g. Contributory Negligence Act 1924

o CVL Meanwhile Apportionment = usual remedy

Likely influenced the change in CML- Today: two responses

o Apportionment

Introduced through legislation in all provinces Based in gravity of respective fault (on the basis of comparative

blameworthiness of conduct) Contributory Negligence Act 1924

In any action or counterclaim for damages hereafter brought, which is founded upon fault or negligence, if a plea of contributory fault or negligence shall be found to have been established, the jury, or the judge in an action tried without a jury shall find:

First: The entire amount of damages to which the plaintiff would have been entitled had there been no such contributory fault or neglect;

Secondly: The degree in which each party was in fault and the manner in which the amount of damages found should be apportioned so that the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant

Art. 1478, par.2 CcQ a. 1478(1) – rule applied in the case of joint and several liability

between two defendants a. 1478(2) – the same rule applies when the plaintiff contributes to

the injury1478 CCQWhere an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of the fault of each. The victim is included in the apportionment when the injury is partly the effect of his own fault.

E.g. Gaudet v. Lagaçé

Gaudet v. Lagacé [1998]Facts:

Three 12-year-old boys (Steve, Michel, Daniel) went to the woods to light stuff on fire (all three children were at fault)

Steve was terribly burned and is suing Michel and Daniel and their parents Father of Steve is also claiming for his own personal damage – he and his wife had to

spend three years caring for his childIssue:

1. Is the liability of the defendants to the victim reduced because of the fault of the victim?

136

2. Is the liability of the defendants to the father of the victim reduced because of the fault of the victim?

Held:1. Yes (reduced by 1/3)2. Yes (reduced by 1/3)

Reasoning: All three children were equally at fault and their faults were of equal seriousness –

so the percentage attributed to each is 1/3 as a result, Steve can only recover 2/3 of the injury from the defendants (the remaining 1/3 will be assumed by him)

The responsibility of the defendants to the father was also reduced by 1/3 to account the fault of his son

Ratio: Example of apportionment – because the faults of the defendants and plaintiff were

of equal seriousness, responsibility is reduced by 1/3Comments:Is it unfair that the liability of the defendants to the father was reduced when the father himself was not at fault? And, it is obvious that the father would not sue his own son. Joint and several liability should operate instead. S

o Intervening Acts (Novus Actus Interveniens) (rarely) Victim’s fault must have been SUBSEQUENT TO THE FAULT OF THE

DEFENDANT’S Question of whether the victim’s actions break the chain of

causation Causation chain broken = exoneration of def.

o So for allocation of resp = APPORTIONMENT VS EXONERATION

Depends on seriousness of respective faults fault of victim will have to be at least equally serous as the fault of def. OFTEN MUST BE MUCH MORE SERIOUS FOR COURT TO ACCEPT

independence of P’s acts did the defendant’s fault lead to the victim’s fault foreseeability and the possibility of def to prevent the fault of the victim There doesn’t seem to be a lot on this in CML maybe more CVL what

would relevant codal article be?? E.g. Girard v. Hydro Québec

Girard v. Hydro [1987] – CVLFActs

Girard was driving to the store from his chalet and noticed that an electrical wire was dangling over the road; when he arrived at the store, he called Hydro Quebec to let them know

As he was returning from the store, he realized the wire was dangling even lower – he tried to warn other cars of the danger by tying a plastic bag to the wire – as he was doing this, the wire hit him and he got hurt

The trial judge found that the victim’s fault was “gross negligence” and reduced the liability of Hydro Quebec by 75%; on appeal, Hydro Quebec argues that they should be exonerated completely (argues novus actus interveniens)

137

Issue- Should the def be exonerated completely b/c of novus actus interveniens?

Held- Yes

Reasoning The court confirms the trial judge’s conclusion that this was “gross negligence” (i.e.

negligence that even the most imprudent person would not have committed) The court assesses if there was some kind of a “trap” (i.e. an unforeseeable danger)

finds that there was no “trap” in this case, no emergency, etc. – so there was no justification for the plaintiff’s actions

In calling Hydro Quebec, Girard was acting as a responsible citizen, but he should have stopped there – the responsible citizen, upon seeing that the wire was lower, should have called the police or stayed at the scene to warn others

The court finds that but for the negligence, the accident would not have happened confirms that the fault of the victim was the sole cause finds that this is novus actus interveniens and this breaks the chain of causation

Saumier Notes that assessment of ‘gross negligence’ here is like kind of like force majeure

which couldn’t have been foreseen and is far beyond mere negligence so wouldn’t

be fair to hold Hydro liable CANE would point out how system is arbitraryRatio

Seriousness of the fault is the main justification for novus actus interveniens (although the court also takes into account that the victim acted independently)

- Here the court seems simply to be using novus actus ot substitute for what could be a simpler decision on which cause should be considered legally effective (based on directness, policy, or other theories).

Voluntary Assumption of Risk - (Rarely used)- A victim can act so as to accept:

o Another’s harmful behaviour and its consequences E.g. accepting to ride with intoxicated driver

o Risks associated with an activity E.g. Rafting, bungee jumping, tube competition, etc. The logic is that the victim has taken a risk knowingly and the victim has taken

certain amount if risk and undertaken ito Victim can signify acceptance of risk by simply performing behaviour (eg. just by playing

the sport) don’t need to explicity accept- Focus is on PL’s behaviour courts don’t look at Def’s behaviour in assessing VAR- CML = Volenti non fit injuria

o = no injury can be done to a victim who accepts the risk of suffering injury from another’s behaviour

o = a DEFENSEo Historically CML applied it broadly and if proven was a complete bar to recovery

Still the case if def can prove it

138

But court is much more reluctant to accept b/c can lead to unfairnesso Establishing VAR means a complete bar to recoveryo Requirements to establish VAR

1. Physical assumption of risk : must show there is in fact a danger in the activity that was undertaken the court admits that this requirement will be easily met (all you have to show is that there is a danger and the danger was undertaken willingly by the victim)

Danger of being injured was known to PL2. Legal assumption of risk : must show that the victim has abandoned his legal right to

sue in negligence – the best way to show this is through the signing of a waiver (but, usually these waivers are signed as part of a contract, so you cannot actually sue in tort law anyway) this is a very difficult requirement to meet

On top of physical VAR , the PL agrees to abandon right to sue in negligence

o Waldick v. Malcolm There was a physical VAR but not a legal one

Waldick v. MalcomFacts:

Malcolms did not salt their driveway Waldick slipped on the icy driveway and injured himself Four days before the accident, there had been icy rainstorms it was very evident

that although the driveway had been shoveled, there was no salt on itIssue: Does this constitute voluntary assumption of risk (i.e. he saw that it was icy and

slippery, so did he accept the risk by actually walking on it?)Held: NoReasoning:

Two conflicting approaches to what it means to willingly assume a risk:1. Merely knowing the risk is sufficient to demonstrate voluntary assumption.2. You not only need knowledge on the part of the victim, you must also have

some indication that the victim waived his/her right to claim compensation in case he/she suffers injury – i.e. waiver of legal risk.

The court adopts the first approach (confirmed by Crocker) – but, it is very rare that you will both have knowledge and a waiver of right to sue (the most difficult part is to show waiver of legal risk)

By getting out of his car, Waldick was not really waiving his legal right – getting out of the car was insufficient to show that he had waived his legal right

Ratio: ****Need to show both (1) knowledge of the risk and (2) a waiver of legal risk on the

part of the victim/plaintiff in order show voluntary assumption of risk’**** Crocker v. Sundance Northwest Resorts Ltd.

o He was intoxicated as to be able to legally give up liabilityo Even though he signed a waiver he was drunk at the time to know that he was

legally giving up his rights o Crocker v. Sundance confirms that you need both requirements to establish voluntary

assumption of risk Physical assumption of risk :

139

Legal assumption of risk :

Crocker v. Sundance Northwest resort [1988]Facts: Crocker entered into an inner tube competition put on by a ski resort, Sundance; he

signed a waiver of responsibility; he got injuredIssue: Was there voluntary assumption of risk?

a. Was there physical assumption of risk? b. Was there legal assumption of risk?

Held: No a. Maybeb. No

Reasoning: The court hesitated in saying definitively that there was a physical assumption of

risk – his mind was clouded by alcohol at the time, so there was doubt about whether or not he was conscious of the fact that he was entering into a competition that involved risk

It was very clear that there was no legal assumption of risk – although the plaintiff signed a waiver, he was not in a state to actually consent to the waiver – the plaintiff did not read it, did not know about its existence, and he was drunk at the time so it was insufficient to show that he had legally assumed the risk

Ratio: Two requirements in attributing voluntary assumption of risk: (1) physical

assumption of risk; and (2) legal assumption of risk need both! Legal assumption of risk is very difficult to show – even the presence of a waiver isn’t

enough if there was not true consentComments:The court concluded that the victim was 25% at fault (contributory negligence) this was not voluntary assumption of risk because if it is VAR, there would be a complete bar to recovery

- CVL = Acceptation des risques

1477 CCQThe assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the person who caused the injury.

o Not a defence usually assessed in causationo Not necessarily complete bar to recovery b/c apportionment has always been part of

CVL philosophyo Knowledge (express or tacit) of danger or risko Acceptance which is free and informedo If it is under a contractual setting then it is dealt in contract, that is why it hasn’t been

developed so well in extra-contractual liabilityo VAR is esp rarely used in Quebec where you can’t actually sign away/waive your rights

140

Conclusions / Critiques of Tort Law- Focus on wrongdoing- Proportionality

o Often thought of in terms of fault and damages equation

ABEL

- Where purpose of tort law is to pass judgement on the wrong committed, respond to the victim’s, and encourage future safety does a poor job at all three

o Moral judgement historically core of torts Many injustices not corrected Wrongdoer often insulated when corporation etc Divorce compensation from fault?

o Compensation contemp preoccupation of torts Problematic for victim’s where no one found at fault or only partial fault found

etc. Shifting of financial burden when both parties are same financial level

doesn’t really work Inequality

Some are more likely to be victimized by tortfeasors who can’t or won’t pay compensation

Process of making a claim is institutionalized to varying degrees in dif settings

Measure of damages is unequal =intensifies social inequality

Commodification of experience, love, happiness etc o Safety should actually be our greatest concern

Not possible to calculate the benefits of accident avoidance Tort recovery necessarily translates unequal recovery into unequal exposure to

risk Threat of tort liability can elicit the optimum level of safety only if potential

tortfeasor knows that the trierr of fact will perform the cost-benefit analysis correctly which is theoretically impossible

Whether tort systems are based on fault or strict liability, must determine whether def caused the plaintiff’s injury but it’s all on balance of probabilities

Safety sometimes must defer to moral judgment and compensation Efficacy of tort law in encouraging safety rests on dubious assumptions of ec

rationaility and market conditions Tort liability produces optimum safety only if all victims recover all their

damages from those who negligently caused their injuries - this doesn’t happen

141

Many entrepreneurs are encouraged to minimise liability rather than accident costs

- Suggestions for improvemento Moral judgement

Change focus beyond damages to moral judgement Stop blaming victims

o Compensation Should respond to what happened rather than how it happened State compensation should affirm equal humanity of victimsmaterially and

symbolically There should be no compensation for intangible harm

o Safety Liability should be strict rather than based on fault Victim behaviour shouldn’t bar or diminish recovery Damages should reflect all costs of accident Claims should be actively encouraged

- Torts is backwards looking

THIBIERGE

- Torts needs to be more focussed on the Def and on prevention (whereas now more focussed on compensation)

Also VINEY (seems like Thibierge’s article is forwarding this notion as well?) collectivization of risk ID endemic risk areas and collectivize -eg. Worker’s comp.

3 Kinds of RF at dif stages of ECO analysis

142

Pappadatos v. Sutherland [1987].......................................................................................................13

Bolton v. Stone [1951] [UK]................................................................................................................16

Wagon Mound 2 (Overseas Tankship v. Miller Steamship) [1967](Australia)....................................16

Labelle v. Gatineau............................................................................................................................17

Oeuvres des terrains de jeux v. Cannon.............................................................................................19

Ginn v. Sisson [1969] (Quebec) (see p ? for case relating to father’s fault---this is just to determine child’s)...............................................................................................................................................20

McHale v. Watson[1969] (Australia)..................................................................................................21

ter Neuzen v. Korn [1995] (Quebec)...................................................................................................22

Roberge v. Bolduc[1991]....................................................................................................................22

Waldick v. Malcom............................................................................................................................23

Canada v. Sask. Wheat Pool [1983]...................................................................................................24

Morin v. Blais [1977]..........................................................................................................................25

Roberge v. Bolduc (same as above)...................................................................................................26

Gaudet v. Lagacé [1998]....................................................................................................................33

Ginn v. Sisson [1969]..........................................................................................................................33

Ira S. Bushey v. United States [1968].................................................................................................37

Le Havre des Femmes v. Dubé...........................................................................................................38

Bazley v. Curry...................................................................................................................................38

Jacobi v. Griffiths................................................................................................................................40

Rylands v. Fletcher.............................................................................................................................42

Doucet v. Shawinigan Carbide...........................................................................................................45

City of Montreal v. Watt and Scott....................................................................................................46

Lambert v. Lastoplex..........................................................................................................................48

Drysdale v. Dugas..............................................................................................................................50

Appleby v. Erie Tobacco.....................................................................................................................51

Canada Paper Co. v. Brown................................................................................................................52

Miller v. Jackson.................................................................................................................................52

Barnett v. Chelsea..............................................................................................................................61

Athey v. Leonati.................................................................................................................................62

Resurfice Corp. v. Hanke,...................................................................................................................63

144

St-Jean v. Mercier..............................................................................................................................63

Gburek v. Cohen.................................................................................................................................64

Bailey v. The Ministry of Defence & Anor – UK..................................................................................64

McGhee v. National Coal Board.........................................................................................................65

Snell v. Farrell....................................................................................................................................66

Laferrière v. Lawson...........................................................................................................................66

Cook v. Lewis.....................................................................................................................................67

Fairchild v. Glenhaven Funeral Services - US......................................................................................67

Sindell v. Abbott Laboratories............................................................................................................68

Jim Russel v. Hite [1986] – Quebec....................................................................................................70

Ouellet v. Tardif [2000] Quebec.........................................................................................................70

Augustus v. Gosset [1996].................................................................................................................72

o Andrews v. Grand & Toy Alberta................................................................................................73

ter Neuzen v. Korn [1995] – Quebec..................................................................................................73

Curateur Public v. Hôpital St-Ferdinand [1996]..................................................................................75

Malette v. Shulman [1990] Ont. C.A..................................................................................................76

Seneca College v. Bhadauria [1981] S.C.R..........................................................................................77

Weller v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569...........................................81

Elliot v. Entreprise Côte Nord [1976] C.A. 584...................................................................................83

J.E. Construction v. G.M. Canada [1985] (Qc Court Ap) – not in CP but mentioned..........................83

5TH approach - New/developed in Bevilacqua v Altenkirk..................................................................85

MacKay v. Essex Area Health Authority [1978]– England - wrongful birth/life..................................86

McFarlane v. Tayside Health Board [1999] – UK – wrongful conception...........................................86

Cooke c. Suite [1995] (Quebec) – wrongful conception.....................................................................87

Perrush..............................................................................................................................................88

Donoghue v. Stevenson [1932] (UK)..................................................................................................90

Home Office v. Dorset Yacht [1970] – UK...........................................................................................92

Anns v. Merton London......................................................................................................................94

City of Kamloops v. Nielsen [1984].....................................................................................................94

Caparo [1990](in UK only) – not in CP or PowerPoint but mentioned in class – need to know??.....94

Cooper v. Hobart [2001]....................................................................................................................95

145

Childs v. Desormeaux [2006]..............................................................................................................96

Palsgraf v. Long Island Railroad [1928] – US.....................................................................97

Alcock v. Chief Constable of South Yorshire [1991] (House of Lords) – not in CP but talked about in class and imp...................................................................................................................................101

Augustus v. Gosset [1996] SCC (CVL)...............................................................................................102

Régent Taxi v. Congrégation des petits frères de Marie [1929] SCR................................................103

Jordan House v. Menow [1973] – SCC – not in CP but mentioned in class......................................105

Murphy v. Little Memphis [1996] – not in CP but mentioned in class..............................................106


In Re Polemis and Furness................................................................................................................112

Wagon Mound 1 (Overseas Tankship).............................................................................................113

Falkenham v. Zwicker (Nova Scotia, 1978)......................................................................................114

Joly v. La Ferme Re-Mi [1974] CVL...................................................................................................115

Brisson v. Potvin [1948] - CVL..........................................................................................................116

Morrissette v. McQuat and Sons [1958] – CVL.................................................................................118

Hughes v. Lord Advocate [1963] - UK...............................................................................................120

Tremain v. Pike (1969) UK (Lower court).........................................................................................120

Deguire v. Adler [1963] – CVL..........................................................................................................125

Caneric Properties, Inc. v. Allstate Compagnie D’Assurance et Ville de Montreal [1995] – CVL.......126

Bonnington Castings v. Wardlaw.............................................................................................127

City of Montreal v. Watt and Scott..................................................................................................129

Q v. Minto Management Ltd. [1985] (Ontario High Court of Justice) – not in CP but discussed in class.................................................................................................................................................130

Smith v. Leech Brain [1955] – UK.....................................................................................................132

Athey v. Leonati...............................................................................................................................133

Marconato v. Franklin......................................................................................................................135

Corr v. IBC Vehicles [2006] - UK........................................................................................................136

Gaudet v. Lagacé [1998]..................................................................................................................139

Girard v. Hydro [1987] – CVL...........................................................................................................140

Waldick v. Malcom..........................................................................................................................141


146

lsa.mcgill.calsa.mcgill.ca/pubdocs/files/extra_contractualobligations/... · Web viewCaparo...

Documents

Transcript of lsa.mcgill.calsa.mcgill.ca/pubdocs/files/extra_contractualobligations/... · Web viewCaparo...