EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY

McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY Summary by Derek McKee

Introduction...... 2 Papadatos c. Sutherland, [1987] R.J.Q. 1020 (C.A.). (CB1p22)...... 3 Punitive and Exemplary Damages...... 4 Curateur Public v. Synd. nat’l des employés de l’hôp. St-Ferdinand, [1996] 3 S.C.R. 268. (CB1p82)...... 4 Augustus v. Gosset, [1996] 3 S.C.R. 211. (CB1p70)...... 5 Injury...... 5 Restitutio in Integrum...... 5 Jim Russell International Racing Drivers v. Hite, [1986] R.J.Q. 1610 (C.A.). (CB1p45)...... 6 Ouellette c. Tardif, [2000] R.J.Q. 1386. (C.A.). (CB1p63)...... 7 Ter Neuzen v. Korn, [1995] 3 S.C.R. 674. (CB1p49)...... 7 Limits of Recovery...... 8 McKay v. Essex Area Health Authority, [1992] 2 W.L.R. 890 (Eng. C.A.). (CB1p104)...... 8 Kealey v. Berezowski, (1996) 136 D.L.R. (4th) 708 (Ont. Gen. Div.). (CB1p106)...... 9 Cooke v. Suite, [1995] R.J.Q. 2765 (C.A.). (CB1p109)...... 9 McFarlane v. Tayside Health Board, [1999] 4 All E.R. 961 (H.L.). (CB1p118)...... 9 The Obligation to Act with Care...... 10 Articulating the Obligation...... 10 Donoghue v. Stevenson, [1932] A.C. 562 (H.L.). (CB1p125)...... 10 Liability for One’s Own Wrongdoing...... 11 The Reasonable Person...... 11 L’Oeuvre des terrains de jeux de Québec v. Cannon (1940), 69 B.R. 112. (CB1p181)...... 11 Bolton v. Stone, [1951] A.C. 850 (H.L.). (CB1p202)...... 12 Overseas Tankship v. Miller Steamship (Wagon Mound 2), [1967] 1 A.C. 617 (P.C.). (CB1p212)...... 12 Labelle v. Gatineau, [1960] B.R. 201. (CB1p227)...... 13 The Defendant’s Abilities and Context...... 14 McHale v. Watson (1966) 115 C.L.R. 199 (Aust.H.C.). (CB1p231)...... 14 Ginn v. Sisson, [1969] C.S. 585. (CB1p239)...... 14 Roberge v. Bolduc, [1991] 1 S.C.R. 374. (CB1p270)...... 15 Fault’s Relationship to Specific Norms...... 16 Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. (CB1p298)...... 16 Morin v. Blais, [1977] 1 S.C.R. 170. (CB1p311)...... 17 Waldick v. Malcolm, [1991] 2 S.C.R. 456. (CB1p285)...... 17 Modifications of Fault...... 18 Introduction...... 18 Liability for the Deeds of Others: Employees/Agents...... 18 Ira S. Bushey v. United States, 398 F2d 167 (2d Cir., 1968). (CB1p331)...... 19 Quebec Asbestos Corp. v. Couture, [1929] S.C.R. 166. (CB1p335)...... 19 Dubé c. Havre des femmes Inc., [1998] R.J.Q. 346. (C.A.). (CB1p339)...... 20 Bazley v. Curry, [1999] 2 S.C.R. 534. (CB1p344)...... 20 Jacobi v. Griffiths, [1999] 2 S.C.R. 570. (CB1p355)...... 21 Liability for the Deeds of Others: Children...... 22 Gaudet c. Lagacé, [1998] R.J.Q. 1035 (C.A.). (CB1p371)...... 22 Liability for the Deeds of Things...... 23 Rylands v. Fletcher (1868) L.R. 3 H.L. 330. (CB1p375)...... 23 Shawinigan Carbide Co. v. Doucet, [1909] 42 S.C.R. 281. (CB1p382)...... 24 City of Montreal v. Watt and Scott, [1922] 2 A.C. 555. (CB1p397)...... 25 Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452. (CB1p400)...... 26 Nuisance/Troubles de Voisinage...... 26 Appleby v. Erie Tobacco Co., (1910) 22 O.L.R. 533 (Div. Ct.). (CB1p425)...... 27 Miller v. Jackson, [1977] 3 All E.R. 338 (C.A.). (CB1p434)...... 27 Drysdale v. Dugas, (1896) 26 S.C.R. 20. (CB1p422)...... 28 Canada Paper Co. v. Brown, (1922) 63 S.C.R. 243. (CB1p428)...... 28 Product Liability...... 29 Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569. (CB1p449)...... 29 Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634. (CB1p497)...... 29 Medical Liability...... 30 Reibl v. Hughes (1980), 114 D.L.R. (3rd) 1 (SCC). (CB1p478)...... 31 Malette v. Shulman, [1990] 67 D.L.R. (4th) 321 (Ont. C.A.). (CB1p461)...... 31 Norberg v. Wynrib, [1992] 2 S.C.R. 226. (CB1p466)...... 31 Parenteau v. Drolet, [1994] R.J.Q. 689 (C.A.). (CB1p481)...... 32 Causation...... 33 The Establishment of a Causal Link...... 33 Causation and its General Difficulties...... 33 Barnett v. Chelsea and Kensington Hospital Mgt. Ctee., [1968] 1 All E.R. 1068 (Q.B.). (CB1p510)...... 33 Approaches to the Assessment of Causation...... 34 The Impact of the Burden and Standard of Proof...... 34 St-Jean v. Mercier, 2002 SCC 15. (CB1p520)...... 34 Inherently Uncertain Connections...... 35

1 McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.). (CB1p530)...... 35 Gburek c. Cohen, [1988] R.J.Q. 2424 (C.A.). (CB1p512)...... 36 Farrell v. Snell, [1990] 2 S.C.R. 311. (CB1p532)...... 36 Laferrière v. Lawson, [1991] 1 S.C.R. 541. (CB1p539)...... 37 Unidentified Wrongdoer (Imputation)...... 37 Cook v. Lewis, [1951] S.C.R. 830. (CB1p542)...... 37 Massignani c. Veilleux, [1987] R.R.A. 541 (C.A.). (CB1p545)...... 37 Sindell v. Abbott Laboratories, 607 P2d 924 (Calif. SC 1980). (CB1p548)...... 38 J. Weinstein, “Ethical Dilemmas in Mass Tort Litigation” (1994) (excerpt)...... 38 The Appropriate Scope of Responsibility...... 39 Acts and Omissions...... 39 T. Eaton Co. of Canada v. Moore, [1951] S.C.R. 470. (CB2p7)...... 39 Crocker v. Sundance Northwest Resorts, [1988] 1 S.C.R. 1186. (CB2p17)...... 40 Murphy v. Little Memphis Cabaret Inc., [1996] O.J. No. 4600. (CB2p25)...... 41 W. Van Gerven et al., Tort Law: Scope of Protection, (1999) at 78 (CB2p28)...... 41 Delineating the Duty of Care...... 42 Home Office v. Dorset Yacht Co. Ltd, [1978] A.C. 1004 (H.L.). (CB2p31)...... 42 Cooper v. Hobart, [2001] 3 S.C.R. 537. (CB2p45)...... 43 Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y.C.A. 1928). (CB2p60)...... 44 Conaghan and Mansell, The Wrongs of Tort, pp.11-21. (duty of care)...... 45 Relational Loss...... 45 Secondary Victims...... 45 Régent Taxi & Transport v. La Congregation des petits-frêres de Marie [1929] SCR 650. (CB2p64)...... 46 Hôpital Notre-Dame et Théoret c. Laurent, [1978] 1 SCR 605. (CB2p95)...... 46 Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All ER 907 (H.L.). (CB2p104)...... 47 Conaghan and Mansell, The Wrongs of Tort, pp.34-44. (psychiatric harm)...... 48 Injury to Economic Interests...... 48 Elliott c. Entreprises Côte-Nord Ltée., [1976] R.J.Q. 584 (C.A.). (CB2p106)...... 48 J.E. Construction Inc. c. General Motors du Canada Ltée., [1985] C.A. 275. (CB2p127)...... 48 Weller v. Foot and Mouth Disease Research Institute., [1966] 1 Q.B. 569. (CB2p109)...... 49 Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 SCR 1021. (CB2p110)...... 50 Conaghan and Mansell, The Wrongs of Tort, pp.21-34. (pure economic loss)...... 51 Causation...... 51 The Scope of Risk...... 51 Hart & Honoré, Causation in the Law, 2nd ed. (1985) pp.9-13. (CB2p130)...... 51 In re Polemis and Furness, Withy & Co., [1921] 3 K.B. 560 (C.A.). (CB2p133)...... 51 Overseas Tankship v. Morts Dock & Eng. (Wagon Mound 1), [1961] AC 388 (PC). (CB2p134)...... 52 Directness v. Foreseeability...... 52 Hughes v. Lord Advocate, [1963] A.C. 837 (H.L.). (CB2p151)...... 52 Starck, Roland, & Boyer, Obligations: Responsabilité délictuelle (France, 1995) (CB2p135)...... 53 Morrissette c. McQuat & Sons, [1958] B.R. 684. (CB2p147)...... 53 Brisson c. Potvin, [1948] B.R. 38. (CB2p140)...... 54 Conaghan and Mansell, The Wrongs of Tort, pp.62-72. (causation)...... 54 Smith v. Leech Brain & Co. Ltd., [1962] 2 Q.B. 405 (Q.B.D.). (CB2p153)...... 55 G. Viney, Les conditions de la responsabilité (1998) (CB2p154)...... 55 Multiple Wrongdoers and Multiple Causes...... 55 Plurality of Established Causes...... 56 Deguire Avenue Ltd. v. Adler, [1963] B.R. 101. (CB2p158)...... 56 Caneric Properties Inc. v. Allstate, [1995] R.R.A. 296. (CB2p166)...... 56 Coutellier v. Hervieux, [1974] C.S. 240. (CB2p169)...... 57 Q. v. Minto Management Ltd. (1985), 15 DLR (4th) 581 (Ont. H.C.). (CB2p157)...... 58 Price v. Milawski (1977), 82 DLR (3d) 130 (Ont.C.A.). (CB2p183)...... 58 Subsequent Events and Aggravation of Injuries...... 59 Athey v. Leonati, [1996] 3 SCR 458. (CB2p171)...... 59 Jobling v. Associated Dairies Ltd., [1981] 2 All ER 752 (H.L.). (CB2p180)...... 60 Placing the Victim Under Scrutiny...... 61 Fitzgerald v. Lane, [1998] 2 All ER 961 (H.L.). (CB2p190)...... 62 Girard c. Hydro-Québec, [1987] R.R.A. 80 (C.A.). (CB2p186)...... 62

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INTRODUCTION  If you suffer from harm, put up with it—unless you are able to justify shifting the burden onto another. Who should bear the burden of a loss?  Our ability to cause harm has increased since the 19th century and the rise of the Industrial Revolution and mass transportation.  We are less willing to accept destiny, the vicissitudes of life, etc. due to increased education and awareness of rights.

 In addition, the development of insurance (especially liability insurance) has contributed to people’s unwillingness to accept fate.

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 Categories of Analysis:  Individualistic/Moralistic: looking for the wrongdoer, the responsible individual (identifying fault)  Communitarian/Social: society has to take the loss  Equality (i.e. equity): the law should protect the weak against the strong, re-establishing a balance of power  Instrumentalist: defines the goal of the law, and then adapts the rules to meet the goal:  Compensation  Prevention/deterrence  Punishment  Economic Efficiency

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 In common law (torts), specific interests are protected by specific torts.  Torts develop out of case law; in theory, courts can create new torts.  However, most torts fall under negligence.  In civil law, all interests are protected (a.1457).  However, in practice, boundaries are set by jurisprudence.  ECO versus contractual obligations:  In common law, if two people have a contract and damage arises in the execution of the contract, the plaintiff has a right to sue under contract law or tort.  In civil law, there is a rule of “non-cumul”: If two people have a contract, it must stay in the realm of contract law.  ECO versus criminal law:  In a criminal case, the victim is just a witness; society is suing.  The goals of criminal law include: repression, exemplarity, punishment, and public order.  The main goal of ECO is compensation (but also individual justice).  Criminal sanctions often involve jail, while ECO sanctions only involve money.  In criminal law, the anti-social behaviour of the defendant is central. In ECO, it may have an impact, but it is not central.  ECO and criminal law were originally part of the same branch of law, which later diverged.

Papadatos c. Sutherland, [1987] R.J.Q. 1020 (C.A.). (CB1p22) Jurisdiction Quebec Facts Sutherland was kidnapped, assaulted and tortured for seven hours by Papadatos and one other person. Papadatos was convicted and punished in a criminal trial. Sutherland sued for compensatory damages (on the basis of pain and suffering, etc.) and exemplary damages (as authorized by s.49 of the Quebec Charter). Issues Could the court award exemplary damages when a defendant has already been punished in a criminal court? Holding No. Ratio Civil law was silent on the issue, so the court followed common law doctrine. (This seemed appropriate since punitive/exemplary damages were essentially a common law doctrine, borrowed into civil law.) The common law principle is that “Where the criminal process has been utilized, …tort law withdraws, except to the extent of ordinary compensation.” Sutherland was however able to recover compensatory damages.

 ECO versus morality:

 ECO judgements are not based on moral judgements.  e.g., in common law provinces, there is no obligation to rescue someone who is drowning.  There are alternative ways of dealing with social wrongs; one example is provided by the Huron people.FDD  Even on an individual basis, there are many ways of satisfying the needs of victims (other than through money) see LCC report “restoring dignity” FDD.  What aims can a victim pursue through ECO/T action?  compensation  prevention/deterrence  punishment (this is debatable)  other incidental aims:  psychological aims: closure vengeance appeasement  social order  public education  ombudsmanship  but NOT obtaining an apology  basic conditions of liability:

common law (negligence) civil law duty of care breach of duty of care (=fault) fault causation causation injury injury Punitive and Exemplary Damages  In practice, it is hard to distinguish between punitive and exemplary damages. (Both are creations of common law).  Sums for damages tend to be low in Canada.  Common law’s requirements for punitive/exemplary damages are:  intent  “conduct serious enough to deserve punishment”  These have been established by case law.  In Quebec, the two conditions for punitive/exemplary damages (according to the Quebec Charter (a.49)) are:  unlawfulness  intention  This is defined in the St-Ferdinand case as either intent to cause the consequences or knowledge of the immediate and natural consequences.  (a.1621) CCQ limits such damages to “what is sufficient to fulfil their preventive purpose.”

Curateur Public v. Synd. nat’l des employés de l’hôp. St-Ferdinand, [1996] 3 S.C.R. 268. (CB1p82) Jurisdiction Quebec Facts The union of employees at the Hôpital St-Ferdinand, a hospital for the mentally disabled, went on an illegal strike for a total of 33 days in October and November 1984. During these times, the patients were deprived of certain normal services. The public curator brought a class action on behalf of the patients, asking for compensatory damages for moral prejudice as well as exemplary damages. Issues 1. For the moral damages, was the trial judge right not to use the functional approach? 2. Was the trial judge right not to award exemplary damages? Holding 1. Yes. 2. No.

Ratio Per L’Heureux-Dubé J.: 1. While civil law cannot use the functional approach to determine the right to compensation for moral damage, it can use it to determine the quantum of damages to award. 2. Exemplary damages (based on s.49 of the Quebec Charter) can be awarded “when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause.”

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Augustus v. Gosset, [1996] 3 S.C.R. 211. (CB1p70) Jurisdiction Quebec Facts Gosset, a Montreal police officer, “accidentally” shot and killed Augustus’s son, Anthony Griffin, who was fleeing arrest. His gun apparently went off accidentally when he was pointing it at Griffin, trying to stop him from running away. Issues 1. Was Augustus entitled to “solatium doloris” damages? 2. Should exemplary damages be awarded as per s.49 of the Quebec Charter? Holding 1. Yes. 2. No. Ratio Per L’Heureux-Dubé J.: 1. “Solatium doloris” is an aspect of moral damages, which are compensable under Quebec law. However, the amount awarded has to be in line with jurisprudence in the area. 2. L’Heureux-Dubé J. applied the test she set out in St-Ferdinand, and found that this case did not meet it. She found that Gosset did not intend to kill Griffin, and since the procedures he used were standard police procedures, the consequences could not be seen as “immediate and natural.” Comments Gosset had been dismissed from the police force but acquitted in a criminal trial. arguments for arguments against only under certain conditions exemplary damages exemplary damages  Punishment is the role of the  Deterrence is needed in some areas  Perhaps there should be criminal law. that criminal law doesn’t cover. limits on the amount of  Compensation is the main  Compensatory damages are not damages. goal of ECO/T. always sufficient to deter  Perhaps the money should  Money from exemplary wrongdoing. go to someone other than damages should not go to the  People slip through the cracks of the the plaintiff. plaintiff; it should go to criminal justice system, or receive  Perhaps distinctions should society. insignificant fines. be made between simple  Criminal law is federal  Corporations (legal persons) can be negligence and serious (division of powers). sued, but not punished for crimes. negligence.  Punishment should have  Exemplary damages have an criminal law safeguards. indirect (psychological) compensation function.

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INJURY Restitutio in Integrum  In determining non-pecuniary damages, civil law looks at the type of injury, while common law looks at the consequences of the injury. But in practice, both common law and civil law use a mixed approach.  The civil law authority is (a.1607), which talks about “réparation du préjudice”:  bodily  moral  material  The common law authority is the “1978 Trilogy” of Supreme Court cases:  Andrews v. Grand & Toy Alberta Ltd.  Thornton v. Board of School Trustees  Arnold v. Tino  Common law judgements make a distinction between:  pecuniary  non-pecuniary  This has been mandatory since 1978.  Pecuniary damage is equivalent to “material damage” in civil law. in the 1978 trilogy, the SCC divided this into three categories:  material loss (property damage only)  cost of care  lost income (This refers to the difference between the income the victim once had and what the victim can earn now. The court will not look at what the victim used to do with his or her money.)  These calculations are done by actuaries, not lawyers (for details, read Andrews v. Grand & Toy Alberta Ltd.)  Non-pecuniary damage includes:  pain and suffering  loss of amenities (job satisfaction, recreation, capacity to enjoy family life)  disfigurement/aesthetic prejudice  Both common law and civil law assess injuries in concreto, i.e. in terms of their effects on the victim’s life.  Since restitutio in integrum is impossible, should courts award non-pecuniary damages?  If the immediate victim is still alive:  Common law favours a functional approach: The victim must be capable of being provided with solace. Damages cannot make up for what was lost, although they can help buy substitute pleasures.  Historically, common law has been reluctant to assign a dollar value to pain and suffering.  Civil law uses a conceptual approach: The injury must objectively exist.  Civil law has never had a problem with awarding money for bodily or moral injuries.  If the immediate victim is dead:  Both systems require the victim to have been conscious of her suffering before dying.  Both systems calculate the amount of compensation according to three approaches:  conceptual: This approach assigns “objective” value to different kinds of injury.  personal: This approach seeks to subjectively evaluate the victim’s pain and suffering.  functional: This approach accepts that what has been lost cannot be replaced, and awards damages insofar as they can be useful in making the victim’s life more bearable.  These are defined by L’Heureux-Dubé J. in St-Ferdinand.  The functional approach is problematic because:

 It can be “cheaper” to kill someone or put them in a coma than to keep them alive.  It can be “cheaper” to injure a mentally disabled person than an able-minded person.  The SCC’s cap on non-pecuniary damages is due to:  recognition of the essential arbitrariness of non-pecuniary damages  fear of U.S. litigiousness.

Jim Russell International Racing Drivers v. Hite, [1986] R.J.Q. 1610 (C.A.). (CB1p45) Jurisdiction Quebec Facts Hite’s face was severely injured and disfigured when he drove through a chain at a race track operated by Jim Russell. Issues How should judges assess moral injuries? Holding In concreto in terms of their effects on the person’s life. Ratio The court found that it was damages should be awarded in term’s of the individual’s loss or suffering, not in terms of abstract rules. This is what’s called the “personal” approach. LeBel JA rejected the SCC’s ceiling on non-pecuniary damages as well as the “functional” approach as being particular to common law.

Ouellette c. Tardif, [2000] R.J.Q. 1386. (C.A.). (CB1p63) Jurisdiction Quebec Facts Ouellette and his son ran their speedboat over Tardif while he was swimming in a lake (wearing a dark blue wetsuit). Fourteen-year-old Olivier Ouellette was apparently not looking ahead when he ran over Tardif. Tardif was seriously injured and could not resume his work as a “white father” missionary in Africa. Issues 1. How should the court calculate lost income (pecuniary damages)? 2. How should the court calculate loss of capacity (for non-pecuniary damages)? Holding 1. in abstracto 2. functional approach Ratio 1. Although Tardif had taken a vow of poverty, and did not earn an income, the calculation of lost income was based on the salary he could have earned doing the same job (university professor) in Canada. 2. The court’s award of non-pecuniary damages was based on a comparison with the 1978 Trilogy; it awarded only $75,000 due to the fact that Tardif was in his fifties and thus had a relatively short life expectancy. Comments Why would a guy who had taken a vow of poverty want all this money?

Ter Neuzen v. Korn, [1995] 3 S.C.R. 674. (CB1p49) Jurisdiction British Columbia Facts Dr. Korn artificially inseminated the Ter Neuzen with HIV-infected semen, from which she contracted HIV. The semen donor had not been tested for HIV, but this was standard medical practice at the time (1985)—it was not widely known that HIV could be spread through artificial insemination. Korn also rarely did any follow-up testing of his donors. (The evidence of standard practice on this issue was sketchy.) The trial jury found that Korn had been negligent, and awarded Ter Neuzen $460,000 in non-pecuniary damages (in excess of the limit set by the Supreme Court of Canada in 1978). Issues 1. Can non-pecuniary damages be awarded in excess of the $100,000 (in 1978 dollars) limit set by the Supreme Court? 2. Could a jury could find a doctor to be negligent, even if he was following standard medical practices? Holding 1. No. 2. Yes, possibly. a new trial was ordered. Ratio 1. The Supreme Court’s 1978 limit for non-pecuniary damages was based on the functional approach: the money awarded should help provide solace to the plaintiff and alleviate the suffering. It is impossible to put a money value on pain and suffering, so

the courts should not try. Also, extravagant damages place an excessive burden on society. 2. Although it was not open to the jury to decide whether Korn had followed standard medical practices (that depended on expert witnesses), the jury could find a standard practice itself to be negligent if it had obvious, common-sense flaws. In this case, a jury could conceivably fault Korn for his failure to do follow-up testing on his donors.

24/9/02 Limits of Recovery  Article 823 of the German Civil code (BGB) says: “Anyone who intentionally or negligently injures the life, body, health, freedom, ownership or any other right of another in a manner contrary to law shall be obliged to compensate the other for the loss arising.” (emphasis added)  Compare this to (a.1457) of the CCQ: it does not enumerate the kinds of interests the law protects. All interests are protected (in theory).  In common law, there are specific torts (“heads of damage”).  However, negligence can apply to any kind of injury (in principle).  In practice, some kinds of injury are seen as problematic. Why? 1. “floodgates”: a fear of liability to the whole world; a belief that the judicial system should not burden individuals, itself, or society too much. 2. The impossibility of assessing damages. This usually does not stop courts, as with non- pecuniary damages, but it is an obstacle in other kinds of cases (e.g., wrongful life cases). 3. In some cases, compensation would contradict public policy or values, e.g., wrongful pregnancy cases. This reasoning does not rely on strictly legal principles.  Some of the kinds of injury that are problematic are:  pure economic loss: This is indirect economic loss, caused by fault committed against another (primary) victim, e.g., power failure caused by an accident.  Common law objects to this because of:  floodgates  uncertain duty of care  Civil law has no problem with pure economic loss, although at some point it will rule that the chain of causation is too weak.  psychiatric damage: This refers to indirect psychological effects of a fault committed against another (primary) victim, e.g. when a passerby sees someone killed in an accident and is traumatised.  Common law objects to this claim because of:  floodgates  the problem of imaginary claims  Such claims are possible in common law, but it is necessary to prove duty of care, and the injury must be a recognized psychiatric illness.  wrongful life, wrongful birth, wrongful pregnancy:  wrongful birth: These are cases where the doctor failed to inform the parents of the risk of a birth defect, and the child was born with a disability. The parents sue, and courts tend to accept this kind of claim.  wrongful life: These are rejected everywhere. (In France, one such case was accepted by the Cour de Cassation, but then reversed by statute.)

McKay v. Essex Area Health Authority, [1992] 2 W.L.R. 890 (Eng. C.A.). (CB1p104) Jurisdiction England Facts McKay was born disabled due to rubella (German measles) which her mother had during pregnancy. She sued the doctor and the health authority on the grounds that they were negligent in not advising her mother to have an abortion. Issues Can a court award damages for wrongful life?

Holding No. Ratio The defendants had caused no injury to McKay; her mother had contracted rubella naturally. McKay could not claim a right not to be born with deformities; the only right she could claim was a right to be aborted, and no such right exists. Doctors have no duty of care to children who may be born with deformities to give their mothers an opportunity to abort them. (They may have such a duty toward the mother, but not toward the child). To impose such a duty would be contrary to public policy, regarding the lives of disabled people as not worth preserving. It would also be impossible to assess the damages in such cases.

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 wrongful pregnancy:

Kealey v. Berezowski, (1996) 136 D.L.R. (4th) 708 (Ont. Gen. Div.). (CB1p106) Jurisdiction Ontario Facts Dr. Berezowski botched a tubal ligation of Mrs. Kealey, and she became pregnant and gave birth to a third child. (Once the Kealeys got over the initial shock, they happily welcomed the child into their family.) The Kealeys had a combined income of $100,000; they had the means to support a third child. Issues Did Berezowski’s negligence impair the Kealeys’ ability to meet their responsibilities to their unplanned child or compromise the relationship of mutual support and dependency between parent and child? Holding No. Ratio The injury of the unplanned pregnancy was mitigated by the joys of childrearing. The Kealeys did not have any special interest which the sterilization would have protected. (The judge made it clear that he did not rule out damages being awarded for child-rearing in other cases.) He argued that it would be impossible to assess damages. However, he did award $30,000 for the stress and difficulty of the pregnancy, labour, delivery, and re- sterilization. Comments The economic argument here could be extended in other cases to produce a judgement similar to that in Cooke.

Cooke v. Suite, [1995] R.J.Q. 2765 (C.A.). (CB1p109) Jurisdiction Quebec Facts Suite became pregnant after a botched tubal ligation: Dr. Cooke had removed a vein rather than one of her fallopian tubes, and he had ignored a lab report that had told him this was the case. Issues Would it be contrary to public order to allow parents to recover damages for wrongful pregnancy claims? Holding No. Ratio Chamberland JA found that the birth of a normal, healthy baby could constitute an injury in some cases. He found that Quebec society recognized the right of women to decide whether or not they would have a baby, and the right of couples to plan their family size: this right had been infringed. He did not see any contradiction in saying that parents could deeply love a child and yet recover damages for its upbringing. A couple’s reasons for not wanting another child are relevant. The fact that it is difficult to put a dollar figure on the joys of parenthood doesn’t mean courts should try. Chamberland awarded $30,000 in damages. Comments $30,000 doesn’t sound like a lot of money for raising a child!

McFarlane v. Tayside Health Board, [1999] 4 All E.R. 961 (H.L.). (CB1p118) Jurisdiction Scotland Facts Mr. McFarlane had a vasectomy, and the doctor told him he didn’t need to use any other

birth control. But the vasectomy was botched, and Mrs. McFarlane became pregnant and gave birth to a health child (their fifth). Issues In a wrongful pregnancy case, are damages for the costs of pregnancy and childrearing recoverable in law? Holding Pregnancy: yes; childrearing: no. Ratio The majority found that the costs (financial, physical, emotional) of pregnancy and delivery were recoverable because they were a directly foreseeable consequence of the fault. However, the costs of childrearing were not recoverable because “it was not fair, just or equitable.” Lord Millett dissented with regard to the costs of pregnancy and delivery as well as childrearing. He said that “the law must take the birth of a normal, healthy baby to be a blessing”; “the advantages and disadvantages of parenthood are inextricably bound together.” Millett found that this reasoning led to the rejection of the McFarlanes’ claim for the pain and distress of pregnancy and delivery as well as the claim for the cost of childrearing. He refused to consider the McFarlanes’ reasons for not wanting a child. (He did, however, say that he would have awarded the McFarlanes damages for their loss of their freedom to limit the size of their family, and for the strollers, high chairs, car seats, etc. that they would need!) Comments I don’t see how the costs of strollers, high chairs and car seats are distinct from other costs of childrearing (food, clothing, toys, education, etc.)!

 Although the plaintiff has an obligation to mitigate the injury, in all of these cases, courts rejected the suggestion that the woman should have chosen abortion or adoption. THE OBLIGATION TO ACT WITH CARE Articulating the Obligation  Both common and civil law recognize that relationships are omnipresent, and that when you enter into relationships, you’re bound to cause damage.  Therefore, there is a certain duty to act in an acceptable way.  But is there a general duty of care for others?  In common law, there is no general duty toward others, but there is a duty toward “neighbours”:

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.). (CB1p125) Jurisdiction Scotland Facts The plaintiff became sick after drinking ginger beer from a bottle containing a decomposed snail. The plaintiff’s friend had purchased the ginger beer for her at a restaurant. The bottle was opaque, preventing either the plaintiff, her friend, or the restaurant (retailers) from seeing the snail. The plaintiff sued the manufacturer for negligence. She won before the Lord Ordinary; the decision was reversed by the Court of Session, and she is appealing the latter decision. Issues Can a manufacturer be liable for injury caused by a defective product? When there is no contractual relationship between manufacturer and consumer, can there be a duty of care? Holding Yes; the majority allowed the appeal. Ratio The minority argued that, since there was no direct contract between the manufacturer and the consumer, the consumer had no grounds for action on the basis of a defective product. The majority set aside the contract issue and looked at duty of care. They argued that if a manufacturer intends his/her products to be consumed, then he/she has a relationship with any possible consumer and a duty of care toward him/her. Lord Atkin articulated the “neighbour principle,” generally applicable to negligence

cases: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” He defined “neighbour” as “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 attention to the acts or omissions which are called in question.” Comments

 Lord Atkin’s neighbour principle gives paramount importance to “reasonable foreseeability.”  Duty of care is a kind of preliminary filter that one must pass before getting into liability.  This concept has been used as a mechanism of social control. Courts can make policy decisions over whether they want to impose a duty of care in certain situations.  In civil law, there is a general duty to avoid causing injury to “another” (anyone at all): “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.” (a.1457)  The civil law makes no distinction between primary and secondary victims.

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 The common law “duty of care” is preoccupied with relationships.  The relationship doesn’t matter in determining fault: this has more to the with the behaviour of the defendant as compared to a social norm.  Nor does the relationship matter to injury: this focuses on the particular situation of the victim.  “Duty of care” has been expanded beyond the doctrine of reasonable foreseeability.  Sometimes courts rule in the “best interest of society”: by doing so, they set aside legal “principle” for policy reasons.  Courts have left some areas outside the law.  Courts have balanced the costs and benefits of recognizing duty of care in different situations. (For example, with pure economic loss and psychiatric damage, courts have used limits on duty of care as a way of making policy decisions. It has little to do with reasonable foreseeability.)  Fault is a concept that arises in three areas of civil liability:  liability for one’s own deeds  liability for the deeds of others  liability for the deeds of things (including animals)  Both systems distinguish between liability based on fault and liability based on risk (i.e., without fault).  Liability based on risk developed from the growth of industry, the development of insurance, and the general increase in collective activities.  The theory here is that a defendant can be liable for having created a risk even though she or he was not at fault.  One reason is the belief that if you profit from creating a risk, you should be responsible. (e.g., strict liability for pollution)  Liability based on risk has not been adopted by common law or civil law in their general regimes, only in specialized regimes.  Fault is often hard to define. It is a difficult requirement in many cases. There is a whole spectrum of behaviour ranging from intentional harm to simple negligence. Liability for One’s Own Wrongdoing

The Reasonable Person  Courts have devised the “reasonable person” test (transsystemic): 1. Would a reasonable person have foreseen that her activity would cause the injury? 2. What kinds of precautions would a reasonable person have taken?  This test is applied in abstracto, i.e., “objectively,” without regard for the characteristics of the defendant.

L’Oeuvre des terrains de jeux de Québec v. Cannon (1940), 69 B.R. 112. (CB1p181) Jurisdiction Québec Facts The plaintiff’s daughter, Jeanne Cannon (aged seven years minus four days), slipped and injured herself while sliding on an icy embankment. The slope was adjacent to a skating rink maintained by the L’Oeuvre, a non-profit community organization. Jeanne Cannon was playing with her sister; no adults were present at the time of the mishap. Issues Was L’Oeuvre at fault for not preventing the girls from sliding on its icy slope? Holding No; the appeal was allowed. Ratio The judges used the “bon père de famille” test for determining fault. Although no adults were present at the time of the accident, a reasonable adult would not have stopped the girls from sliding on such a small slope. Therefore, the defendant organization was not at fault, and could not be held liable. This case is an illustration of the basic principles of fault.

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 Courts apply an “objective” fault test in order to: 1. ensure stability and predictability 2. avoid personal bias 3. set a minimum standard for behaviour  Is the reasonable person standard flexible enough to account for social change? Yes, because it is not explicitly defined anywhere.  An example could be changing attitudes about when it’s “reasonable” to wear a condom.  Common law also employs several alterative techniques for determining fault: where it seems that foreseeability and prevention are insufficient criteria: 1. balancing severity of the harm, probability of harm, and burden of prevention (qualitative approach):  Asks: would a reasonable person have nevertheless taken the risk? (The implication is that there are some risks that are reasonable for one to take.) One must assess:  the probability of damage occurring: one must guard against probable damage, but not against remote possibilities of damage.  the gravity of the potential damage: As the gravity of the potential damage increases, the threshhold of reasonable risk decreases. (e.g. the case of the one- eyed mechanic who lost his second eye)  the burden of precautions: Would precautions have been too heavy?  The social utility of the activity is also sometimes considered, but this is mainly restricted to essential services provided by the government (e.g. police, firefighters).

Bolton v. Stone, [1951] A.C. 850 (H.L.). (CB1p202) Jurisdiction England Facts While standing on the street outside her house, Stone was hit and injured by a cricket ball. A visiting player at the cricket club had hit the exceptional shot. According to neighbours and long-time club members, balls very rarely went over the wall. Stone sued for negligence and nuisance. Issues Could the cricket club be at fault, even though the possibility of the cricket ball hitting someone was extremely remote? Holding No; the appeal was allowed. Ratio The risk posed by the cricket ball was extremely remote, a “bare possibility,” so a reasonable person would have been justified in failing to take precautions. Lord Reid argued that the burden of precautions was irrelevant unless the gravity or probability of damage was high—in which case cricket should not be played at all. In other words, a small risk can be ignored. (Lord Reid qualified this in Wagon Mound 2.) Comments This case may be seen as a descendant of Donoghue v. Stevenson. The issue of

probability qualifies Lord Atkin’s “neighbour principle.” It is also interesting to note the “social utility” argument used by counsel for the appellants on p. 853. This summary deals only with the tort of negligence, not nuisance.

Overseas Tankship v. Miller Steamship (Wagon Mound 2), [1967] 1 A.C. 617 (P.C.). (CB1p212) Jurisdiction Australia Facts The crew of a ship, the Wagon Mound, carelessly spilled a large volume of furnace oil into Sydney Harbour. The oil surrounded two ships belonging to the respondents, which were undergoing repairs including welding. When the manager of the repairs saw the oil, he stopped the work, but resumed it when he was told that furnace oil was extremely hard to ignite. Two days after the spill, the oil was ignited, presumably by a piece of hot metal from the welding. The two ships were badly burned. The respondents sued the appellants for negligence and nuisance. The Supreme Court of New South Wales said yes to nuisance and no to negligence. Each side is appealing. Issues Given that the probability of the oil igniting was remote (and clearly acknowledged as remote by the actions of the plaintiffs, who resumed their welding), can the defendants be at fault (cf. Bolton v. Stone)? Holding Yes; the cross-appeal for negligence was allowed. (The appeal against the nuisance charge was also allowed.) Ratio Even though the risk posed by the oil was extremely slight, the crew of the Wagon Mound had no valid reason to take such a risk. (On the contrary, it would have been in their financial interest to stop the oil spill.) The probability of harm was low, the gravity was high, and the burden of precautions was extremely low (just a matter of closing the valve). Lord Reid considered Bolton v. Stone with regard to low risk. He concluded:  Only a farfetched risk can be ignored.  A substantial risk should prompt its creator to stop the risky activity. Comments This summary deals only with the tort of negligence, not nuisance.

2. the Learned Hard Formula:  If B (burden of eliminating the risk) < P (chance or likelihood that harm will culminate) * L (gravity or severity of potential harm), then the defendant is not at fault.  This is used only in the United States.  This formula has been taken by some to be quantitative, although it seems Learned Hand did not intend it that way. 3. Posner’s economic formula:  B = the cost of avoiding the accident.  P remains the same as in the Learned Hand formula.  L = the cost of the accident, if it occurs.  In the interest of economic efficiency, the smaller cost should be incurred.  This is used only in the United States.  The idea is: I will take precautions if and only if it is economically efficient for me to do so.  However, the probabilities are almost impossible to calculate.  Another policy problem is that it make responsibility to other people dependent on one’s own financial balance.  The apparent clarity and simplicity of Posner’s formula is deceptive.  To sum up, the usual common law approach is: 1. Would the reasonable person have foreseen the likelihood of injury?  A corollary of this is: What kinds of risks would the reasonable person take? 2. What kind of precautions would the reasonable person have taken?  Civil law does not use any of these B,P,L formulas.  But Taschereau J. appears to have considered the burden of precautions in Labelle c. Gatineau.

Labelle v. Gatineau, [1960] B.R. 201. (CB1p227) Jurisdiction Quebec

Facts Gaston Labelle, eight years old, was playing wih friends in a municipal garbage dump when he fell into a hidden fire and was burned. Although the dump was located in a remote part of town, and signs made it clear that the boys were not allowed in, the fence was broken and it was easy for them to come in. Children played in the dump on a regular basis. The employees of the dump knew that there was a fire, and they had not made sure it was extinguished. Labelle’s father sued and lost at the Cour Supérieure; he is appealing. Issues Was the municipality at fault? Holding No; the appeal was allowed. Ratio The fact that the municipality knew the dump was an attraction for children, that there was a fire, and that the fence was broken, means that it should have foreseen the injury and taken reasonable steps to prevent it. (e.g., by ensuring it was properly fenced). Taschereau, dissenting, argued that the burden of precautions (the cost of fencing the dump, having security guards to keep kids out, etc.) was too great. This case is meant to show how the “balancing” approach has crept into civil law.

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The Defendant’s Abilities and Context  The reasonable person is assumed to be “a normal person of ordinary abilities and intelligence.”  Characteristics of the defendant are rarely taken into account, except:  age  significant physical disabilities  special skills  External circumstances are taken into account: it’s the “reasonable person placed in the same circumstances.”

McHale v. Watson (1966) 115 C.L.R. 199 (Aust.H.C.). (CB1p231) Jurisdiction Australia Facts Barry Watson, aged 12, threw a sharpened metal welding rod, six inches long, at a wooden post. It either glanced off or missed the post, and landed in the eye of Susan McHale, aged 9, who was standing near the post. McHale sued Watson in trespass and in negligence. (But trespass was out of the question once it was found that Watson had not indended to hit McHale.) Issues Should the court apply an “objective” standard in determining fault, or should the defendant’s age be considered? Holding Watson’s age was a relevant concern; the appeal was dismissed. Ratio McTiernan ACJ: “Childhood is not an idiosyncrasy”; the standard of care required of children may be lower than that for adults. In cases of alleged negligence, children should be held to a reasonableness standard based on other children of the same “age, intelligence and experience.” Kitto ACJ thought Watson should be compared to other children of the same age.

Ginn v. Sisson, [1969] C.S. 585. (CB1p239) Jurisdiction Quebec Facts Howard Sisson, aged 6 years and 9 months, threw a stone which hit and injured another child, Willa Ginn. Sisson claimed that he had been aiming for a tree and had not intended to hit Ginn. Sisson and another boy had been throwing stones in the general direction of Ginn and her friends, who were waiting for a bus. Ginn’s father sued Sisson and his father. Issues 1. Could Howard Sisson be at fault despite his young age? 2. Should Howard Sisson’s father be held responsible for the acts of his son?

Holding 1. Yes. 2. No. Ratio 1. Howard had enough sense to know that it was wrong to hurt others or to throw stones. He knew that his father would punish him for doing so. He therefore had capacity of discernment and could be held responsible under a.1053 CCLC. 2. Howard Sisson’s father was found to have raised, educated and disciplined his son well. He therefore rebutted the presumption of fault under a.1054 CCLC. Comments Nicolas Kasirer’s article comments on this case and the controversy in the civil law over whether children can be found to be at fault.

Common Law: Common Law: Civil Law: Ginn v. Sisson McHale v. Watson (McTiernan J.) McHale v. Watson (Kitto J.)  “Age is not an idiosyncrasy.”  reasonable child of  “Capacité de discernment”  what can be reasonably corresponding age (a.1457 CCQ: “where he is expected from a child of the  one couldn’t expect a 12- endowed with reason and fails in same age, intelligence and year-old to understand these this duty”) experience. causes and effects.  Two schools of thought:  conduct “symbolic of tastes and discernment is a separate simplicity of boyhood” requirement, or part of the fault requirement (see Kasirer).  The child knew right from wrong enough to know that he shouldn’t have been throwing stones.

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 Capacity: The idea of fault is based on individual freedom to choose a course of action (free will).  Civil law asks: Did the defendant have capacity of discernment?  Civil law talks about the ability to distinguish between right and wrong.  Common law has a dilemma between:  prioritizing compensation  prioritizing deterrence or punishment—in which case it would take the subjective approach  Context, abilities, character:  context: Common law and civil law both take context into account (time and place of incident; weather, emergency, etc.)  character and abilities: 1. lower-than-average: The standard of care is not reduced.  This position is shared by common law and civil law.  If we take abilities or character into account, we may be losing sight of the goal of compensation.  An “objective” standard forces people to be prudent and not undertake activities beyond their abilities.  Exceptions are made in the case of significant physical disabilities. 2. higher-than-average: The standard of care is increased.  This may be true if the defendant presents himself or herself as having higher-than- average abilities or skill, even if he or she really doesn’t!  Professional (or community standards) are considered as reasonableness standards.  e.g., in Ter Neuzen v. Korn refers to the “prudent and diligent doctor in the same circumstances”:  If the field is technical, expert witnesses define the standard.  But the court can also find the profession’s (or community’s) standards to be unreasonable on common-sense grounds.  community standards:

 The standard for communities is similar to that for professions: If the community’s standards are sub-standard, even someone who conforms can be at fault. (see Waldick v. Malcolm)

Roberge v. Bolduc, [1991] 1 S.C.R. 374. (CB1p270) Jurisdiction Quebec Facts Richard Dorion, a notary, advised Roberge and Beaupré not to buy a house based on uncertainty with the seller’s title. The seller had bought the house six years earlier from a caisse populaire, which had obtained the house through a hypothec when its owner went bankrupt. Although it was questionable whether the caisse really should have obtained the house, the bankrupt owner had not contested the judgement, and the caisse’s title was therefore valid through res judicata. Dorion seems to have been ignored this principle, and incorrectly advised Roberge and Beaupré that the seller’s title was uncertain. They did not buy the house. Dorion was clearly wrong, but his conduct was consistent with notarial practice in Quebec (as attested by expert witnesses). Issues Can a professional be at fault for behaviour that conforms to the standards of his or her profession? Holding Yes, if the standards themselves are faulty. Ratio The judge argued that res judicata was a fundamental legal principle that a notary should have been able to apply; if notaries were not in the habit of doing so, their standards were faulty! Comments It’s interesting to compare this to medical liability cases, where the judges have no specialized knowledge and must rely on expert testimony. Since this case was about legal practice, the judge was able to form his own opinion.

Fault’s Relationship to Specific Norms  What is the effect of statutory norms on rules of conduct? Is breach of a statute equivalent to fault? (i.e., would strict liability apply, with no “reasonable person” test?)  Statutory rules are often aimed at ensuring safety  Statutes are often of a criminal nature, with punishment (fines) attached to breaches.  If courts considered statutory norms, they would be reinforcing legislators’ efforts.  Both common law and civil law think that statutory norms should be considered when assessing fault. However, courts disagree on how and how much statutes should matter.

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 In common law (negligence), there are two possibilities (aside from the UK tort of statutory breach): 1. breach = fault (US model) 2. breach is evidence of fault, but not proof (Canadian common law and civil law)  strong prima facie evidence: Morin v. Blais  weak (mere) evidence: Saskatchewan Wheat Pool  In civil law, statutory breach equals fault only if the statutory norm is equivalent to an elementary standard of care. (Morin v. Blais)

Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. (CB1p298) Jurisdiction Canada (Federal Court) Facts The Saskatchewan Wheat Pool delivered grain infested with rusty beetles to the Canadian Wheat Board, contrary to the Canada Grain Act. Rusty beetle testing is difficult and time-consuming, so no one knew about the infestation until after the wheat had been loaded onto a ship (at Thunder Bay). The ship had to be stopped and the Board had to pay to have the wheat fumigated. The Board sued the Pool not for negligence but for “statutory breach.” The Federal Courts ruled in favour of the Board but the Federal Court of Appeal reversed the judgement. Issues Did the mere breach of a statute confer upon the Board a civil right of action against

the Pool? Holding No; the appeal was dismissed. Ratio In Canada, there is no separate tort of statutory breach. Statutory breach is part of the law of negligence. There is no absolute liability based on statutory breach in the absence of fault. Proof of statutory breach is “mere” evidence of negligence; the plaintiff must still prove fault (unreasonableness). In this case, the Pool was not at fault because it had taken reasonable care. Comments I can’t believe you don’t have to throw away infested wheat—you just have to fumigate it (and it can still be eaten?).

Morin v. Blais, [1977] 1 S.C.R. 170. (CB1p311) Jurisdiction Quebec Facts At about 9pm, when the darkness was about 70-80%, Morin was driving a car at 55 to 60 mph along a straight stretch of road. Blais was driving a tractor ahead of him at 18-20 mph. Contrary to regulations, Blais’s left rear fender light was not working, and the light on the right side was barely visible. Blais did however have a reflective triangle. Morin did not see Blais soon enough, and swerved to the left at the last minute, where he collided with an oncoming car driven by M. Lagacé. Mme. Lagacé was killed. Issues Did Blais’s statutory breach automatically mean that he was at fault? Holding Yes. Ratio Beetz J.: Statutory breach does not automatically lead to liability. However, many statutes (such as traffic regulations) are equivalent elementary standards of care. Breach of such a statute is equivalent to fault. Where such a breach causes an injury which the statute was designed to prevent, causation can be presumed. In this case, causation was partially rebutted: Morin’s reckless driving was also found to be a cause of the accident. The court divided liability equally between Morin and Blais. Comments This is the first time we’ve had to deal with the effects of statutes (other than the CCQ) on civil liability. It’s interesting to see that the “reasonable person” standard is not absolute, and that civil liability is not entirely grounded in “common sense.” Legislation can modify the standard of behaviour expected of the reasonable person.

arguments in favour of the US model arguments in favour of the Canadian model (absolute liability based on statutory breach) (statutory breach as evidence of fault)  clarity  criminal standards need criminal  exemplary function safeguards  predictability  do we need extra deterrence?  deterrence (extra deterrence helps)  reasonable foreseeability test

 A fundamental choice must be made between stricter liability (leaving aside questions of fault) and staying faithful to the traditional importance of fault.  Of course, some statutes specify that breach will lead to civil liability (as in Waldick v. Malcolm). An issue only arises when the statute says nothing.  The relationship between fault and community norms:

Waldick v. Malcolm, [1991] 2 S.C.R. 456. (CB1p285) Jurisdiction Ontario Facts Waldick slipped and fractured his skull on an icy driveway/parking area at the farmhouse rented by his sister and brother-in-law in a rural part of Ontario. According to the Ontario Occupiers’ Liability Act, occupiers of premises have a duty of care toward anyone coming onto those premises. In this case, the Malcolms could have sanded or salted their driveway, but didn’t. The Malcolms argued that no one else in the area sanded or salted their driveway, and that their conduct had therefore been in line with “community standards.” (This however remained unproven.) (They also argued that Waldick had known about the icy driveway, and that he had therefore willingly assumed the risk.) Issues 1. Should community norms be allowed to modify duty of care imposed by a statute?

2. Did Waldick willingly assume the risks, walking over the ice? Holding 1. No. 2. No. Ratio 1. The Occupiers’ Liability Act was intended to require householders to make a positive effort to make their property safe. The fact that members of a community generally behave unreasonably (contrary to a statutorily imposed duty) does not excuse those whose behaviour results in injury. 2. Mere knowledge of the risk was not enough to establish volenti. The Occupiers’ Liability Act created a duty of care; this could only be escaped if the plaintiff willingly assumed the risks. Iacobucci J quoted Estey J in Dubé v. Labar (1986): Volenti will only arise “…where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue….it will arise… only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility…” Comments Note that our reasons for reading this case have nothing to do with the relationship between fault and statutory norms. In this case, the relationship was clear: the Occupiers’ Liability Act said that there was a duty of care and anyone who breached it would be at fault. The issue here is the role of community norms. I think that if there were no Occupiers’ Liability Act, the Malcolms would not have been liable. It’s interesting to see the common-sense “reasonable person” standard modified by legislation. I’m not sure what I think about this. It raises issues of legal instrumentalism. Is it fair to hold the Malcolms to a standard which none of their neighbours would have met, which nobody expected them to meet? On the other hand, perhaps legislatures have a legitimate role in changing and redefining what we think of as reasonable. Modifications of Fault

Introduction  This section deals with special regimes for liability of the deeds of other and liability for the deeds of things.  In these special regimes, there is a lighter burden of proof; the plaintiff does not need to prove the fault of the defendant.  This makes the regimes more favourable to victims. It’s easier to get compensation.  In common law, fault is replaced by other conditions which are easier to prove.  In civil law, there are “faits générateurs de responsabilité” (recognized factual bases of liability) – (this term is used more often in France).  There are, basically, three models for liability: 1. liability based on fault (a.1457; tort of negligence)  The plaintiff must prove fault. 2. presumption of fault (a.1459 &1460; Ont., Man. Parental Responsibility Acts; a.1465)  The onus is on the defendant to prove absence of fault. 3. strict liability/presumption of responsibility (a.1463; tort of vicarious liability; Rylands v. Fletcher; a.1466 & 1467)  Fault is irrelevant; the defendant cannot exonerate himself or herself by proving absence of fault.  However, other defences may be allowed.  “Act of God” or “force majeure” (a.1470) can be used as a defence agains all three.  Fault on the part of the plaintiff may exonerate the defendant partly or totally.  There is also a fourth model, absolute liability: this means strict liability with no defences allowed.

Liability for the Deeds of Others: Employees/Agents  We are not talking about the fault that the employer/principal might have personally committed by making a bad hiring decision or not properly training the employee/agent.  In civil law, under (a.1463) (“responsabilité du commettant”) there is presumption of responsibility.  In common law, under the tort of vicarious liability there is strict liability.  In both systems the employer’s fault is irrelevant!

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 This is a changing and developing area of the law. How are the different rules justified? 1. employer/principal’s fault in hiring or training the employee/agent  This used to be popular, but it’s now unrealistic given the huge, impersonal scale of many organizations. 2. legal substitution: The acts of the employee/agent are an extension of the employer/principal’s acts (a legal fiction).  This has also lost popularity: it is based on reintroducing fault. 3. protection of victims: an attempt to provide the victim with a defendant who is solvent (and usually insured) 4. If the employer/principal takes the benefits of the enterprise, he or she should also be responsible for whatever injury it causes. 5. The enterprise must bear the consequences of any risks it creates.  This is the most current view.  There is no consensus as to which justification is proper; some argue that all of them are relevant.

Ira S. Bushey v. United States, 398 F2d 167 (2d Cir., 1968). (CB1p331) Jurisdiction United States Facts A coast guard sailor named Lane returned to his ship drunk late one night, and, as he approached the ship, impulsively turned some valves on the drydock. Water flooded in, the drydock sank, and the ship fell off the blocks and was damaged. Bushey, the owner of the drydock, sued the government for vicarious liability. The government argued that Lane’s actions were not within the scope of his employment. Issues Is it unfair to charge an employer with liability for a not-really-foreseeable reckless act by an employee outside of his work? Holding No; the appeal was dismissed. Ratio The judge found that, although the sailor’s act took place outside of the scope of his work and was not exactly foreseeable, it was part of a risk created by his employment. There is a higher standard of foreseeability for vicarious liability than for negligence, because employers must be prepared to deal with risks that their activities create in the long run (i.e., drunken sailors are likely to cause damage at some point). The judge considered the policy reasons for respondeat superior (e.g., “deep pockets”), but concluded that these were not the primary reasons for vicarious liability. common law (tort of vicarious liability) civil law (a. 1463) requirements: requirements: 1. relationship employer-employee 1. relationship principal-agent (or servant) 2. fault of employee 2. fault of agent 3. in the course of employment 3. in the performance of duties 4. injury/damage 4. injury/damage 5. causation 5. causation = = strict liability presumption of responsibility

 In civil law, the current test is based on the idea of subordination: The principal is empowered to give orders to the agent.

Quebec Asbestos Corp. v. Couture, [1929] S.C.R. 166. (CB1p335) Jurisdiction Quebec Facts Couture supervised blasting at a mine run by Quebec Asbestos Corporation. He hired, trained, directed and paid his workers; his method of working was up to him. He was paid by the cartload and he was liable if he failed to provide the mill with enough stones. Couture was seriously injured in an explosion, presumably caused by an unexploded charge left in a stone. Couture sued Quebec Asbestos as a principal liable for the actions of an agent. Issues Was Couture an employee of Quebec Asbestos, such that Quebec Asbestos should be responsible for his fault? (Mainly a question of fact, it appears.) Holding No. The appeal was allowed. Ratio Couture was an independent contractor, sufficiently free to choose his own methods of working. If any of his employees had been injured, he would have been liable, not Quebec Asbestos. He was too autonomous to be considered an agent of Quebec Asbestos.

 Part 3 of the civil law test, “in the performance of duties,” is extremely hard to prove, especially when the agent intentionally committed a wrongful act. Courts will ask: Whose interest was pursued in the wrongful act? If it was even partly in the principal’s interest, the principal can be held responsible.  Strictly speaking, it doesn’t matter whether the agent was acting criminally, disobeying orders, displaying incompetence, or acting outside the time and place of employment.

Dubé c. Havre des femmes Inc., [1998] R.J.Q. 346. (C.A.). (CB1p339) Jurisdiction Quebec Facts After a divorce, Laurette Dubé went to stay at Le Havre, a women’s shelter. She was looked after there by several caseworkers including Nicole Denis. Denis found out that Dubé had money from her divorce and invited Dubé to stay with her at home, using Dubé’s alcoholism to lure her. Once there, Denis and her husband convinced Dubé to “lend” her most of her money from the divorce. Dubé sued Denis, her husband and Le Havre jointly. The Superior Court allowed the action. Le Havre is appealing (Denis and her husband are not). Issues 1. Was Le Havre at fault? 2. Was Le Havre responsible for Denis’s actions in the absence of fault? Holding 1. No., 2. No. (The appeal was allowed.) Ratio 1. Le Havre exhibited perfect diligence in hiring and training Denis, and it had no idea of her scheme; Denis worked hard to hide it from her employers. Therefore Le Havre could not be at fault under a.1053 CCLC. 2. There are three elements for establishing liability for the acts of employees in civil law (CCLC): the fault of the principal, the link between the principal and the agent, and the fact that the fault was committed in the context of carrying out one’s functions (“ le fait que le faute ait été commise dans le cadre de l’exécution de ses fonctions ”). The first two elements were certain. However, Denis’s fault was not committed in the course of carrying out her work. Although she planned the scheme while she was at work, she only committed the actual fault once she had lured Dubé to her house. Also, her scheme did not benefit Le Havre in any way. So Le Havre could not be responsible under a. 1054, al. 7 CCLC.

 Common law uses the “control test”: the courts ask whether the employee was under direct supervision, and whether the employee was told where, when and how to do the work.  This can be difficult in specialized professions.

 Courts also look at who owns the tools, where the act took place, who profited from it, and other factors.  Part 3 of the common law test, “in the course of employment,” is also very difficult. Courts will use the Salmond test: They will distinguish:  authorized acts carried out in an unauthorized mode (even if wrongful, intentional, criminal) from  conduct so unconnected to the employee’s work as to be separate from it.

Bazley v. Curry, [1999] 2 S.C.R. 534. (CB1p344) Jurisdiction British Columbia Facts While he was working for the non-profit Children’s Foundation (in one of its homes), Curry sexually abused a child, Patrick Bazley, who was living in the home. Curry was convicted; Bazley is now suing the Children’s Foundation. Issues The court (opinion delivered by McLachlin J.) framed the issues thus: “1. May employers be held vicariously liable for their employees’ sexual assaults on clients or persons within their care? 2. If so, should non-profit employers be exempted from liability?” (law) Holding 1. Yes, 2. No. The Children’s Foundation was held liable. Ratio 1. The court began by applying the Salmond test, which states that employers should be liable for employees’ acts if they were “authorized” or “so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.” The problem is that the second part of the test is ambiguous. McLachlin suggests that it can be resolved by looking at: Stage I of test: 1. Are there precedents establishing unambiguously that the act took place in the course of employment? and 2. If not, should vicarious liability be imposed in light of broader policy rationales? The major policy concerns are (a) compensation and (b) deterrence. Stage II of test: McLachlin concludes that courts should consider whether the employer created or enhanced the risk of the harm. In determining the latter, five subsidiary factors may be considered:  opportunity for abuse of power  employer’s benefit  friction/confrontation/intimacy  unequal power  vulnerability of victims 2. [reasoning not included in except] Comments This reasoning has so far only been used for sexual abuse cases.

22/10/02

Jacobi v. Griffiths, [1999] 2 S.C.R. 570. (CB1p355) Jurisdiction British Columbia Facts Harry Griffiths, program director of the Vernon Boys’ and Girls’ Club, sexually abused numerous children under his care, including Randal Craig Jacobi and Jody Marlane Saur. While the abuse occurred within the context of Griffiths’ professional relationship with the children, the incidents took place after hours or off Club premises. Jacobi and Saur sued both Griffiths and the Club. Issues Applying the test set out by McLachlin J. in Bazley v. Curry, can the Club be held vicariously liable? (fact) Holding No. Binnie J., for the majority, found that the facts in this case did not meet the criteria

in Bazley v. Curry. Ratio In the first stage of the test (precedents and policy), Binnie J. emphasized the fact that the “deterrence” policy consideration would not work for non-profit organizations. Binnie J. added “fairness to the employer” as a policy consideration. In the second stage (whether the employer created or enhanced the risk), he found that this case did not meet the subsidiary factors mentioned in the test. It is important to note that McLachlin J. dissented; she felt that Griffiths’ position of “trust, power and intimacy” was related to his job (the third “subsidiary factor” in Bazley v. Curry). As for policy, she refused to exempt non-profit organizations from liability, not on the basis of “deep pockets,” but on the basis of deterrence and the fact that employers had created the risk that led to the harm. Comments Although Binnie J. and McLachlin J. both used the Bazley v. Curry test, neither reasoned by explicit analogy with Bazley v. Curry.

 These two cases have had no impact on civil law.

Liability for the Deeds of Others: Children  In civil law, this area is governed by (a.1457) and (a.1459):  When you sue under (a.1457), you must sue the parents as tutors of the child.  Under (a.1459), there is presumption of fault, but no presumption of responsibility. Parents can defend themselves by proving absence of fault.  Most children have no money themselves!  This rule is justified by the fact of parental authority (a.394).  Under (a.1459), courts will presume fault in custody/education/supervision—any or all of these: they are never separated. A defendant parent must rebut all three presumptions.  Courts will also presume causation.  Conditions of liability under (a.1459) (1 to 3 are presumed; they replace the fault requirement): 1. filiation (a.600) 2. minority 3. act or fault of minor: This is the most confusing condition. It is determined by:  discernment  According to some, this is part of the fault requirement; according to others, it’s separate: see Kasirer. Parents can be liable despite the child’s lack of discernment: (a.1462) provides for a fiction of discernment. Discernment appears to be irrelevant in practice.  reasonable child of a comparable age 4. injury 5. causation  If all of these conditions are fulfilled, they lead to presumption of fault in education, custody and supervision.  Quebec law has extended this liability to anyone who has control over a child’s “custody, supervision or education” (a.1460) (e.g., teachers)—this replaces the filiation condition.  Germanic legal systems have the same rule.  defences: The parents will try to argue: 1. Reasonable (absence of fault in) education. 2. Reasonable (absence of fault in) supervision and custody,  generally  at the time of the incident.

24/10/02 [missed class; notes from Alexandria Sjöman, edited]

Gaudet c. Lagacé, [1998] R.J.Q. 1035 (C.A.). (CB1p371) Jurisdiction Quebec Facts Three kids (aged 11, 12 and 13) stole matches and lawnmower fuel from one of their

parents’ garages. They went into the woods and lit a fire in which one of them got burnt. Their stories were confusing enough that the court held that it was unclear whose fault caused the explosion. Issues 1. Could the parents of the two children who were not burnt be held responsible for the injury? 2. How would liability be apportioned? 3. Would the apportionment of the children’s liability affect the parents’ claim as victimes par ricochet? Holding 1. No; 2. one-third each; 3. Yes. Ratio 1. The parents established that they had given their sons a good education, and that they had supervised their children adequately. The parents generally did not tolerate the kids’ use of dangerous objects; they had warned their kids that fuel was dangerous; they could not have been expected to keep lawn mower fuel under lock and key. The parents did not know of previous similar outings, but they could not be expected to supervise pre-teens that closely. In general and at the time of the incident, the court found that the parents were reasonable. The court said that reasonable education is evidence of reasonable supervision, but is not sufficient on its own; parents must prove both. 2. The three children were held to have each contributed to the fault, so the two children who were not burnt were held solidarily liable for two-thirds of the damages. (The other third was the plaintiff’s own share.) 3. The parents’ award as victimes par ricochet was discounted by one-third, the same rate as their son’s damages. The court did not give any reasons for this. Comments Would this kid really ever get the money?

 In most common law jurisdictions, there is no special regime of liability for the deeds of children.  Parents have a duty to take reasonable care (but only reasonable care) to supervise and control minor children.  The burden of the proof of fault remains on the victim.  Manitoba Parental Responsibility Act: Presumption of fault on part of parents for “intentional” destruction, damage or taking of property by children, up to $7500.  This is more restrictive than (a.1459)  Parents can defend themselves by arguing that their supervision was reasonable and that they made reasonable efforts to discourage the kids from similar acts.  Ontario Parental Responsibility Act: Parents are presumed at fault for property damage by their kids, unless they prove reasonable supervision and efforts to avoid loss.  Parents are required to provide reasonable education and supervision. If the child has a bad character, then parents' responsibility is higher.

29/10/02

Liability for the Deeds of Things  Historically, liability for the deeds of things has jumped from number 1 (fault) to 2 (presumption of fault) to 3 (strict liability) back to 1.  Under Roman law, there was no general law of liability for the deeds of things.  The general law is less than 100 years old. It is a creation of jurisprudence, even in Quebec and France—but it is linked to the articles of the Code.

Rylands v. Fletcher (1868) L.R. 3 H.L. 330. (CB1p375) Jurisdiction England Facts Fletcher, who owned a mill, built a reservoir on land adjacent to land where Rylands operated a coal mine. Fletcher did not know that there were disused mine shafts below the reservoir which connected to Rylands’s mine. (His contractors, however, became

aware of the shafts during the work, and did nothing.) When the reservoir was filled, water leaked down and flooded the mine. Issues In cases where a person brings onto his or her land “something which, though harmless while it remains there, will naturally do mischief if it escape out of his land,” should there be “an absolute duty to keep it in at his peril,” or only a duty to take all reasonable care that it should not escape? (law) Holding In the Court of Exchequer Chamber, Blackburn J. (for the Court) said yes. On appeal, the House of Lords affirmed this decision. Ratio Blackburn J. stated, “…the person who, for his own purposes, brings on his land, and collects and 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 consequence of its escape.” It is strict liability, not absolute liability, because “He can excuse himself by showing that the escape was related to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God.” This position is justified by analogy with older cases involving animals. There is also some discussion of risk and willingness to assume risks. In the House of Lords, Lord Cranworth upheld this ruling, adding that it applied “however careful he [the defendant] may have been.” Lord Cairns added the condition of “non-natural use of land.” Therefore, the test consists of three conditions: 1. thing not naturally on land 2. thing likely to do mischief if it escapes 3. escape Comments This case’s history is uncertain; it seems to have limited application (unfortunately!)

 Rylands v. Fletcher is still alive but not doing very well. Courts have shrunk it to the point where it rarely applies.  During the Industrial Revolution, the common law courts did not exploit the potential of Rylands v. Fletcher to respond to pollution.  The “non-natural use” requirement has been expanded.  Several defences are recognized.  The torts of negligence and nuisance have grown instead.  In the CCLC (adopted almost at the same time as Rylands v. Fletcher), (a.1055,CCLC) provided a regime for injury caused by specific things: buildings and animals.  There was ambiguity in (a.1054 al.6,CCLC)

31/10/02

 In Quebec, late 19th and early 20th century courts found that the end of (a.1054,CCLC) was just an introduction to (a.1055,CCLC).  The courts interpreted (a.1054 al.1,CCLC) to create a general regime of liability for the deeds of things.  This is one of the most striking examples of judge-made law in civil law. (It was justified as interpretation)  Once judges had established a regime for liability caused by things, it could be: 1. presumption of fault or 2. presumption of responsibility  (a.1054 al.6,CCLC) makes it possible for the defendant to exonerate herself or himself by proving an inability to prevent the damage.  Read in connection with al.1, it seems to indicate a presumption of fault.  However, it’s unclear whether al.6 applies to al.1.

Shawinigan Carbide Co. v. Doucet, [1909] 42 S.C.R. 281. (CB1p382) Jurisdiction Quebec

Facts Doucet tended a furnace at Shawinigan Carbide with one other worker. The furnace exploded, and a jet of hot carbide burned Doucet’s eyes out. The cause of the explosion was a mystery. Issues Could the company be held liable for the injury? Holding Yes (Duff J. dissenting). Ratio The case turned on the interpretation of a.1054 of the CCLC. Is responsibility for injury caused by things under one’s care based on presumption of responsibility (paragraph 1 standing alone) or presumption of fault (paragraph 6 applied to paragraph 1)? There was also discussion in class (on 7/11 and 21/11) of whether a.1054 created “a general regime of liability for the deeds of things.” I’m not sure what this means. The five judges had widely divergent views:  Fitzpatrick C.J.C. argued for presumption of responsibility. He said that if the machine is used for profit and creates a risk, the owner must pay damages.  Girouard J. argued that a.1054, para.6 applies only to paras. 2-5, but he denied that this would result in presumption of responsibility: he was in favour of liability based on fault (fault must be proven).  Idlington J. found the fault of Shawinigan Carbide based on res ipsa loquitur, with no reference to a.1054.  Anglin J. found fault based on a defect (res ipsa loquitur). In obiter, he argues that a.1054, para.6 applies only to paras. 2-5. From a policy point of view, he feels this is too onerous a burden, but he feels constrained by the text to accept presumption of responsibility. (Although he does use the words “presumption of fault” at one point, Khoury thinks this is a mistake.)  Duff J. dissented (for reasons not important to this summary). He argued for liability based on fault, and he did not find fault. Comments According to Khoury (in lecture), this decision left the state of the law uncertain. It ended up somewhere between presumption of fault and presumption of responsibility; it was only really decided in City of Montreal v. Watt and Scott.

 Quebec Railway, Light, Heat and Power v. Vandry: In this case, the court favoured presumption of responsibility.

City of Montreal v. Watt and Scott, [1922] 2 A.C. 555. (CB1p397) Jurisdiction Quebec Facts During a heavy storm, water overflowed from a sewer and flooded Watt and Scott’s basement. The trial court found the city liable for the damage, because it could have prevented it (by building a bigger sewer, installing valves, or a pumping station). The King’s Bench overturned the decision based on force majeure. The SCC reinstated the trial decision, holding that the rainfall was not so exceptional as to constitute a force majeure. (However, they also considered that the plantiffs might have installed valves, so they halved the damages.) In any case, it is clear that the damage was caused by a thing, the sewer, under the care of the city. Issues Does the first paragraph of a.1054, CCLC, establish a presumption of responsibility for the fault of things under one’s care, or does this presumption only apply when the defendant fails to establish absence of fault? In other words, does the “exculpatory” paragraph 6 of a.1054 apply to paragraph 1, or only to paragraphs 2-5? Holding The House of Lords decided that a finding of responsibility for damage caused by the fault of things under one’s care would be rebuttable by the argument of inability to prevent the injury from happening. Therefore, it was a presumption of fault, not responsibility. However, the defendants did not make this argument, so the SCC’s decision stands. Ratio This finding is partly supported by creative interpretation of the French (“ci-dessus”) and the English (“in the above cases”) texts of a.1054, para. 6. It is also justified for policy reasons: the House of Lords felt that the alternative reading would place too onerous a burden on “those who had things under their control.”

Comments Funny how the momentous interpretation issue ended up having no bearing on the case itself! This case settled the ambiguous state of law left by Shawinigan Carbide Co. v. Doucet and Quebec Railway, Light, Heat and Power v. Vandry.

 The courts have followed the City of Montreal v. Watt and Scott decision ever since. The new CCQ provisions also reflect this interpretation.  (a.1465) contains a presumption of fault. It requires: 1. custody 2. a thing 3. an autonomous act  This means that there cannot have been any human intervention.  The thing must have had a “dynamic role” in the creation of the damage.  a.1055 of the CCLC became (a.1466 and 1467).  (a.1466) (for animals) and (a.1467) (for buildings) contain a presumption of liability. They are not rebuttable by absence of fault.

Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452. (CB1p400) Jurisdiction Quebec Facts Anastasia Rubis, age 4, fell out the window of a hotel room when the screen she was leaning on came loose. She (and her parents) sued. 1. a. 1054, CCLC, does not apply when the damage is not caused by a thing but by the action of the person who has control over it. 2. Under a. 1055, CCLC, the owner of a building cannot be held liable for damage caused by construction defect or want of repair when the the building or part of the building is used “contrary to the purpose for which it was intended.” Issues Was it contrary to the purpose of the screen to lean on it? (fact) Holding Yes; the appeal was dismissed. Estey and McIntyre JJ. dissented. Ratio The majority held that the screen’s primary purpose was to keep bugs out. Estey and McIntyre’s dissent was partly because they felt that screens also had the purpose of keeping things in, but more because of questions about the proper role of an appellate court. They felt that the Court of Appeal had ignored the trial judge’s finding that the screen itself was defective.

5/11/02

[Review session]

7/11/02

[Review session continued]

Nuisance/Troubles de Voisinage  In common law: The issue in the tort of private nuisance is “unreasonable interference” with the occupier’s enjoyment of land.  This can be in the form of physical damage or loss of health, comfort or convenience.  This is based on the Latin maxim, “Sic utere tuo ut alienum non laedas”: You must use your property so as not to injure that of your neighbour.  However, this is not applied in an absolute way. Each individual in a community has to put up with some inconvenience and annoyance.  The plaintiff must have a property right in order to sue:  owners in possession  owners out of possession (would have to prove that the nuisance has a long-term effect on their proprietary interests)

 tenants  the defendant: The person who creates the nuisance can be sued.  The owner of the land where the nuisance came from can also be sued, even if he didn’t create the nuisance, if the owner was negligent.  reasonableness: This has nothing to do with the defendant’s conduct. It depends on:  the character and extent of harm caused  circumstances such as:  character of neighbourhood  intensity of interference  duration of interference  time of interference  and sometimes:  zoning designation  utility of defendant’s conduct  motive of defendant’s conduct  The courts will not consider the plaintiff’s special sensitivities.  The fact that the plaintiff “came to the nuisance” is not a defence.

12/11/02

Appleby v. Erie Tobacco Co., (1910) 22 O.L.R. 533 (Div. Ct.). (CB1p425) Jurisdiction Ontario Facts Appleby complained of a terrible smell from the neighbouring tobacco factory. It was unclear whether the odours affected health. This was in a city (Windsor). Issues Did the smell constitute a nuisance? Holding Yes. The tobacco factory was given six months to do something about the smell. Ratio Anything that interferes with the comfort and enjoyment of a property can be a nuisance. The court accepted that the standard for reasonable interference will vary by locality; the reasonability of the activity itself is irrelevant. Injunctions are normally awarded, as damages are not really an adequate remedy.

Miller v. Jackson, [1977] 3 All E.R. 338 (C.A.). (CB1p434) Jurisdiction England Facts The Millers moved into a new house which had been built adjacent to a cricket field. Cricket had been played there for 70 years. Over the next few years balls were hit against their house and into their garden several times. The cricket club built a high fence to keep in the balls, but still a few balls went over it every year. Issues 1. Was the cricket club liable in negligence and in nuisance? 2. Could an injunction be granted to stop people from playing cricket? Holding 1. Yes. 2. No. Ratio According to Geoffrey Lane and Cumming-Bruce LJJ, the cricket club was negligent, and it committed a nuisance. However, according to Cumming-Bruce LJ, an injunction should not be granted because it was appropriate to weigh private interests against public interests, and public interests prevailed in this case. Lord Denning MR, dissenting, said that the only essential difference between negligence and nuisance was whether an injunction could be granted: his test for nuisance was whether it was “a reasonable use” of the land. While Geoffrey Lane and Cumming-Bruce LJJ rejected the “coming to the nuisance” defence, this became an aspect of Lord Denning MR’s finding of reasonableness. He also considered policy grounds, defending the public interest against the private interest, and the importance of protecting the environment. So he decided that an injunction could not be awarded. Since two of the three judges did not award an injunction, the cricket club could continue. Comments I think Lord Denning was getting a bit dotty by this point—he basically told Mrs. Miller

that if she didn’t like it she could go live somewhere else!

 In civil law: Troubles de voisinage have to do with going beyond the level of tolerance that neighbours owe one another.  The CCLC talked about “asocial” or “abnormal” exercise of proprietary rights.  beyond normal circumstances  The CCQ (a.976): “Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature of their land or local custom.”  The nature and location of land, and local custom are considered.

Drysdale v. Dugas, (1896) 26 S.C.R. 20. (CB1p422) Jurisdiction Quebec Facts Dugas owned two houses on rue St-Denis, one of which he lived in. He was harmed by the smell and noise from Drysdale’s stable next door, which was a first-class stable with most modern ventilation and drainage. Issues Is reasonable care or social utility any justification for annoying one’s neighbours? Holding No. Ratio Although this is a Quebec case, Sir Henry Strong CJC relied mainly on English sources to support Taschereau J.’s terse civil law judgment. He elaborated that neither: 1. reasonable care and caution nor 2. social utility of the activity nor 3. coming to the nuisance were adequate defences. Gwynne J. dissented on the point of social utility, for policy reasons: “As we cannot pronounce it illegal to maintain a stable in the city of Montreal the appeal should be allowed.”

 Remedies for nuisance/troubles de voisinage:  injunction: This can deal with present or potential future injury.  prohibitory injunction: i.e., “Stop what you’re doing.”  mandatory injunction: requires a positive step to be taken.  interlocutory injunction: This is an emergency, interim injunction.  damages: These can be granted in addtion to or instead of an injunction.  If damages are awarded in addition to an injunction, they will only deal with past injuries.  If damages are awarded instead of an injunction, they will deal with the past and the future.  Courts are reluctant to award damages instead of an injunction: this is seen as tantamount to expropriation.  abatement: This do-it-yourself remedy has fallen into disfavour. It is allowed only in emergencies.  If you take the law into your own hands, you can never get damages.

Canada Paper Co. v. Brown, (1922) 63 S.C.R. 243. (CB1p428) Jurisdiction Quebec Facts Canada Paper Co. was a large factory which employed many people in the town of Windsor Mills. Its manufacturing of soda sulphate pulp caused fumes and odours which interfered with Brown’s enjoyment of his property. Issues Should the court award damages rather than an injunction in view of the economic importance of the factory? Holding No. Ratio Although the factory was important, soda sulphate was just a small part of its business and could be moved elsewhere or simply bought. Comments The interests of the individual came before community interests in this case (although community interests were also considered).

 Is liability for nuisance based on fault or risk (i.e., strict liability)?

Fault Risk  Maliciousness is taken into account (in  In both nuisance and troubles de voisinage, common law); bad faith (in civil law). the basis of liability has nothing to do with the  The social utility of the conduct matters. defendant’s conduct—the focus is on the  The character of the neighbourhood matters in injury caused, not the nature of the behaviour. determining the reasonableness of interference  The fact that the defendant took precautions is (common law) or the normality of annoyance irrelevant (Drysdale, Appleby) (civil law).  One could argue that a reasonable person doesn’t cause unreasonable interference (or abnormal annoyance)!

 In civil law, this is actively debated.

14/11/02

Product Liability  In Canadian common law, there is no special regime of product liability. Negligence law is applied instead.  There is no strict liability, except perhaps in cases involving a direct contract.  The rule of the privity of the contract was historically a huge obstacle to third-party claims.  Since Donoghue v. Stevenson, the manufacturer is required to exercise reasonable care, but only reasonable care.  Subsequent cases expanded Donoghue v. Stevenson to component makers, installers, repairers, etc.  There is a duty to warn consumers of inherent dangers: This applies even after the product is sold, if new dangers are discovered.

Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569. (CB1p449) Jurisdiction Ontario Facts Lambert was lacquering the floor in his basement when the pilot light from his furnace in the neighbouring room ignited vapour from the lacquer and caused an explosion. Lambert was burned and the house was damaged. The label on the lacquer can warned consumers, “Keep away from fire, heat and open-flame lights” and “Caution: inflammable,” but said nothing specifically about pilot lights, unlike a competitor’s can. Issues Had Lastoplex fulfilled its duty to warn consumers of inherent dangers? Holding No. Ratio According to Laskin J., the duty to warn has four conditions: 1. The product is on the market for the general public. 2. The product can be dangerous when used for its intended purpose. 3. The manufacturer knows or ought to have known about the danger. 4. The public is not as aware of the details of the danger as the manufacturer. If all of these conditions hold, the manufacturer has a “duty to specify” the dangers. Comments Laskin’s third condition resembles a reasonableness standard—this test seems to amount to a duty of care to warn consumers.

 A corollary of this judgment is that if the dangers of some products are sufficiently known, there is no need to warn consumers (e.g. that you might cut yourself with a knife).  The same rules apply for pharmaceutical products: prescription drugs, over-the-counter drugs, vaccines, implants, etc.

 However, with pharmaceuticals there is the added complication that there are intermediaries between the manufacturer and the patient.

Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634. (CB1p497) Jurisdiction British Columbia Facts The doctor who gave Hollis breast implants failed to warn her about the risks of rupture or other complications. The implants did rupture, seriously harming Hollis’s health. At the time, Dow Corning, the manuafcturer, knew of similar unexplained ruptures. Issues Was it sufficient for Dow to warn doctors of the risks of the implants, or did Dow have a duty to ensure that patients were informed as well? Holding Dow only had a duty toward the doctors. Ratio There was a “learned intermediary” (the doctor) who had a duty to inform the patients. However, the manufacturer had not adequately inforrmed the doctor (it kept quiet about some of the information), and thus could be held liable.

 civil law: In Quebec, this area of the law is covered by (a.1468,1469,1473)  It appears that manufacturers have presumption of responsibility for injuries caused by safety defects, but:  Manufacturers can defend themselves by proving that the injured person knew of the defect or could have foreseen the injury. (a.1473 al.1)  The “state of the art” defence is permitted, allowing manufacturers to argue that there was not enough scientific knowledge to prevent the injury. (a.1473 al.2)

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 There are three interpretations of the CCQ regime of product liability: 1. There is no presumption of responsibility, but a presumption of knowledge.  Some say this is equivalent to fault: knowing about the defect and doing nothing is fault. 2. There is presumption of fault: the inherent danger of the product is equivalent to fault.  The inherent danger of the product may have nothing to do with the defendant’s conduct. 3. There is presumption of responsibility: liability without fault.  Baudouin takes this view.  How can this be reconciled with the state of the art defence? (a.1473 al.2)  The EU directive seems tofall under this interpretation, but it may face the same problem.

Medical Liability  Medical liability is where personality rights and extra-contractual obligations meet.  In past times, people were not free to dispose of their life and death on their own.  Nowadays, people have a right to autonomy and self-determination:  s.7 of the Charter guarantees life, liberty, and security of the person.  s.12 of the Charter guarantees freedom from “cruel and unusual treatment or punishment.”  a.1 of the Quebec Charter guarantees life, personal security, inviolability and freedom.  a.5 of the Quebec Charter enshrines respect for privacy.  However, rights can be waived, with consent.  Consent must be free and voluntary, and in many cases, informed.  The doctor-patient relationship is a contract.  Under common law, one can claim negligence or contractual liability.  Under civil law, such claims fall under (a.1458): contractual liability.  Alternatively, one can plead absence of informed consent,  or possibly, absence of consent altogether.  Failure to obtain consent:  In common law, this could be battery:  There is no need to prove injury (unlike in negligence): it can be quite trivial interference.  Nor is there any need to prove causation.

 However, the plaintiff has to prove intention. Battery must be intentional.  Fault is presumed, but can be rebutted by the defendant.  Therefore, the defendant can plead absence of intention or absence of negligence (i.e., fault).  Battery is especially used in cases where:  there is a total lack of consent  there is the wrong kind of consent (see Norberg v. Wynrib) or  where consent was obtained through misrepresentation.

Reibl v. Hughes (1980), 114 D.L.R. (3rd) 1 (SCC). (CB1p478) Jurisdiction Ontario Facts During surgery on his carotid artery, Reibl suffered a stroke which left him paralyzed on one side. Although Reibl had consented to the surgery, he claimed that he had not been fully informed of the risks, and sued for negligence and battery. Issues Could the doctor be held liable for battery? Holding No. Ratio Laskin CJC: Consent is an adequate defence to battery; in medical cases, battery should only be claimed when there was no consent at all. Cases of uninformed consent should fall under negligence. Laskin CJC acknowledged that battery has some advantages for the plaintiff because there is no need to prove causation and the burden of proving consent falls on the defendant.

 There are two kinds of compensatory damages awarded for battery:  general damages  aggravated damages: These are awarded when the dignity of the plaintiff is infringed upon: it’s compensation for the loss of dignity.  In civil law, medical intervention without consent would be governed by (a.10 and 11).  The lawsuit must be for contractual damages under (a.1458), not (a.1457) because of the rule of non-cumul. Injury must be proven.  If there is no consent at all, the issue would fall under (a.1457), but in practice this wouldn’t change things.  Failure to inform:  In common law, this would fall under negligence (injury must be proven).  In civil law, this would (a.10,11,1458) (injury must be proven).  Protection of the role of patients:  Consent, given freely, protects the freedom to make choices, even if they are foolish choices.  It includes the right to refuse treatment.  Consent cannot be obtained by threat, under duress, under the influence of drugs, etc.

Malette v. Shulman, [1990] 67 D.L.R. (4th) 321 (Ont. C.A.). (CB1p461) Jurisdiction Ontario Facts Malette was seriously injured in a car crash and was rushed unconscious to a hospital where Dr. Shulman was on duty. During the initial examination, a nurse found a card in her pocket which read, “No Blood Transfusion,” explained that blood transfusions were against her religion as a Jehovah’s Witness, and was signed by Malette. Dr. Shulman administered blood transfusions anyway and Malette made a full recovery—indeed, the blood transfusions may have saved her life. Malette sued Shulman for battery. Issues Can a doctor disregard a patient’s earlier, written refusal of treatment in an emergency situation? Holding No. Shulman was ordered to pay $20,000 in damages. Ratio Although emergencies are an exception to the general rule requiring a patient’s consent, a written refusal must be respected in an emergency situation. A patient’s right to refuse takes precedence over a doctor’s professional judgment.

Norberg v. Wynrib, [1992] 2 S.C.R. 226. (CB1p466) Jurisdiction British Columbia Facts Dr. Wynrib exploited Norberg’s addiction to prescription drugs in order to exact sexual favours from her. Issues Could Norberg obtain damages, and on what grounds? Holding Yes, for battery. Ratio La Forest J. (for the majority) held that, while consent is normally a defence against an accusation of battery, the notion of consent had to be modified to consider the power relationship between the two parties. Consent cannot be obtained by unconscionable means. Sopinka J. held that consent was an adequate defence to battery in this case, but that Wynrib could be held liable in contract for breach of the doctor-patient relationship. McLachlin J. argued that the issue should have been understood in terms of a fiduciary relationship.

 informed consent:  Informed consent follows a participatory model of the doctor-patient relationship.  The doctor must inform the patient of:  the diagnosis  the nature and goals of the treatment  risks (some of them)  therapeutic alternatives and their risks  The doctor must also answer any specific questions the patient asks.  Some risks do not need to be disclosed because it is taken for granted that the patient knows what they are.  Limitation of the role of patients:  treatment without consent:  for children: Consent is usually given by a child’s parents, or sometimes by the court.  In Quebec, children can consent on their own behalf at age 14.  Children have a limited capacity to refuse treatment: “Martyrdom is reserved for adults.”  in emergency cases, when the patient is unconscious. (a.13 al.2). There are two conditions: 1. One must be pressed by time. 2 .One must be unable to obtain consent in time.  uninformed consent:  fault:  Civil law uses the “reasonable doctor” test (the normal test of reasonableness):  This is also called the “professional disclosure standard.” It depends on: 1. the probability of the realization of the risk 2. the seriousness of the potential injury

Parenteau v. Drolet, [1994] R.J.Q. 689 (C.A.). (CB1p481) Jurisdiction Quebec Facts Dr. Parenteau performed a cosmetic operation on Mme. Drolet’s eyelids. Complications from the surgery caused Mme. Drolet to lose her vision in one eye. Mme. Drolet was never informed of this risk. The risk was small (1 case in 2500), but Dr. Parenteau was aware of it. Issues Was Dr. Parenteau obliged to inform his patients of this risk? Holding Yes. Ratio Although the risk was small, the damages were severe. “The duty to warn of risk varies inversely with its rarity, but directly with severity…” The fact that the surgery was cosmetic also appears to have affected the decision. There was also the issue of follow-up and whether the injury could have been

prevented if Dr. Parenteau had required Drolet to stay longer at the clinic, but that’s another issue.

 Common law uses the “full disclosure standard” (articulated by Linden J. in White v. Turner as the “reasonable patient standard”). It depends on:  What kind of material risk would the patient have wanted disclosed?  “…material risks are significant risks that pose a real threat to the patient’s life, health or comfort. In considering whether a risk is material or immaterial, one must balance the severity of the potential result and the likelihood of its occurring.” (Linden J.)  “Material risks” are roughly equivalent to the professional disclosure standard in civil law.  What kind of special or unusual risk would the patient have wanted disclosed?

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 causation in medical liability:  Canadian common law uses a “modified objective test”: Would a reasonable person in the patient’s position have consented if informed?  It is “modified” because it considers the patient’s age and marital status as well as reasonable beliefs, fears and desires.  This test solves the problem of the patient benefitting from hindsight.  Civil law uses “subjectivité rationnelle” (Roberge v. Bolduc, Drolet v. Parenteau): 1. What would the particular patient have done if informed? 2. Would the reasonable person have had the same reaction?  (This is just to corroborate the plaintiff’s testimony.)  Civil law is less concerned with the credibility of patients than common law is.  It it the judge’s task to assess witnesses’ credibility anyway!  Are these two tests different?  There is a slight difference in theory: The civil law test gives more weight to the plaintiff’s testimony.  In practice, both tests have led to the same result: most actions based on lack of informed consent fail on the basis of causation.  Therapeutic privilege is rarely used by Canadian courts: This would allow a doctor to omit information if giving it would cause injury (e.g., psychiatric injury) to the patient. CAUSATION The Establishment of a Causal Link

Causation and its General Difficulties  (a.1607) states that obligations arise when injury is “an immediate and direct consequence”: however, this is not defined.  Causation has been described as “a tangle, a jumble, a palace of mirrors and a maze” and “squaring the circle.”

Barnett v. Chelsea and Kensington Hospital Mgt. Ctee., [1968] 1 All E.R. 1068 (Q.B.). (CB1p510) Jurisdiction England Facts Barnett was one of three night watchmen who came sick to an emergency room on Jan.1, 1966, after having drunk some tea. The doctor on duty, Dr. Banerjee, who wasn’t feeling well himself, thought they had just been drinking and told them (via the nurse) to go home and see their own doctors. It turned out that their tea had been

poisoned with arsenic, and Barnett later died. Issues Was the doctor’s carelessness the cause of Barnett’s death? Holding No. Ratio Arsenic poisoning is rare, and even if he had been treated, it’s unlikely that the only effective antidote would have been given to him in time to save his life. Thus it cannot be said that that “but for” the doctor’s carelessness Barnett would not have died. Comments

 There are three typical kinds of difficulties: 1. plurality of causes: This is when the courts have to pick only one of several possible causes.  e.g. St-Jean v. Mercier  e.g. Gburek v. Cohen 2. uncertainty as to the cause of damage  e.g. McGhee v. National Coal Board 3. when an unidentified person has committed a proven fault (imputation)  e.g. Cook v. Lewis

Approaches to the Assessment of Causation  The causa sine qua non (“but-for” test):  All facts without which damage would not have occurred are causal.  This results in a long list of factors.  This test is sometimes used by the common law, but never by civil law.  The reasonable foreseeability test:  This is of course used in common law. It has a minor role in civil law.  The adequate causation theory: This is the favourite test in France and Quebec.  It tries to isolate the factors which, in a normal course of affairs, are of a nature to cause the injury.  It looks at the idea of normality: Does this kind of injury normally flow from this kind of action?  While reasonable foreseeability is subjective, seeing things from the defendant’s point of view, adequate causation is objective.  Causa proxima: the event closest in time to the injury. Neither system uses this.  If you can determine cause by ordinary common sense, there is no need to refer to these theories.  These theories have little impact on the way courts actually assess causation: It is usually pragmatic, common sense, based on the judge’s discretion.

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 To start, the common law uses the but-for test.  If this doesn’t work, it tries the reasonable foreseeability test.  If this doesn’t work, it uses the “material contribution” (“more than trivial”) test.  In Alphacell v. Woodward (1972), Lord Salmond said one should use ordinary common sense rather than abstract metaphysical theories.

The Impact of the Burden and Standard of Proof  The burden of proof: Whoever institutes an action must prove her case (actori incumbit probatio)  This is the first rule of evidence in civil law (a.2803), and it’s a common law rule too.  The standard of proof: The existence of causation must be more probable than its non- existence (>50%). (a.2804)  Taken together, this means that if the chances of causation are exactly 50-50, the plaintiff loses.

St-Jean v. Mercier, 2002 SCC 15. (CB1p520) Jurisdiction Quebec Facts St-Jean was hitchhiking when he was hit by a car and severely injured. When he was brought to hospital, Dr. Mercier didn’t know he had spinal cord injuries and didn’t immobilize him. He suffered spastic paralysis in his legs. St-Jean argued that this was due to lack of immobilization; Mercier argued that this was due to the impact of the accident itself. Issues Should there be a presumption of causation in favour of St-Jean? Holding No. Ratio Gonthier J. described presumption of causation as a tool of evidence, and discussed various situations in which they are relevant. However, he said that the only time the burden of proof of causation should be reversed is in Cook v. Lewis-type situations, where the defendants’ own wrongdoing prevented the plaintiff from establishing causation, so both defendants can be held solidarily liable. He said that the creation of a risk was not sufficient to create a presumption of causation. Comment The plaintiff had gone to law school in the meantime, and pleaded this case himself! (And he lost. ) Although this was a civil law case, the Alberta Court of Appeal recently held it to be binding in Alberta. Therefore it could lead to a rejection of the “creation of risk” argument in Common law. Inherently Uncertain Connections  Uncertainty often arises in cases of alternative causes: cases where injury can only have been caused by one of a series of causes, but it’s impossible to know which.  In cases with alternative causes, it’s impossble to prove that the defendant’s fault played any role.  It’s therefore impossible to meet the requirements for the balance of probabilities and the burden of proof.  The courts have responded in three ways: 1. reversal of the burden of proof of causation (based on risk)  In this approach, the plaintiff asks the court to shift the burden to the defendant.  If the court accepts and the evidence is 50-50, the plaintiff wins.  Pure reversal of the burden of proof actually withdraws any requirement to prove anything about the element in question.  There can also be partial reversal of the burden of proof.  This was a minority view in McGhee (Lord Wilberforce) and Gburek v. Cohen (Beauregard J.). It was rejected in Farrell v. Snell (Sopinka J.).

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.). (CB1p530) Jurisdiction England Facts McGhee worked in a brick kiln; it was very dirty work and no showers were provided. He had to shower after bicycling home. Later, he contracted dermatitis. The court found that the employer had a duty to provide showers. However, it was not clear whether the dermatitis was caused by the absence of showers. Issues What was required in order to establish that the absence of showers caused the dermatitis? Holding It had to be shown that the absence of showers materially contributed to the risk. Ratio Lord Reid inferred causation based on increase of risk/material contribution. (He refused to distinguish between the two.) Lord Wilberforce (in the minority, but not dissenting) shifted the burden of proof to the defendants based on increase of risk. Lord Simon of Glaisdale held that “substantial contribution” was enough; he also said that in a case which involves a risk, “failure to materially reduce the risk” and “substantial contribution to the injury” are equivalent. Lord Simon held (with Lord Reid) that it was useless to distinguish between material

contribution to the injury and material increase of the risk of injury.

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2. presumption/inference of causation (sometimes based on increased risk)  This is a factual presumption as opposed to a legal presumption: it is not provided for in any statute.  If a party is unable to prove a fact directly, it might ask a judge to infer the fact from proven facts. (e.g. train derailment—rock fell from truck?)  The judge has discretion.  Common law’s “inferential reasoning process” is to the same effect.  This method was the majority in McGhee, Gburek v. Cohen, Farrell v. Snell and Laferrière v. Lawson.

Gburek c. Cohen, [1988] R.J.Q. 2424 (C.A.). (CB1p512) Jurisdiction Quebec Facts Gburek, who was paraplegic and used a wheelchair, was admitted to the hospital with a high fever due to an infection in his back. In the emergency, Dr. Cohen administered a powerful antibiotic, gentamycine, which was known to have possible side-effects on hearing. The gentamycine treatment continued for 40 days with no hearing tests, until one day, Gburek apparently lost his hearing all of a sudden. Cohen was found to be at fault for not administering hearing tests. Although it was found that the gentamycine caused the hearing loss, it was unclear whether earlier hearing tests could have prevented the injury. (Part of the reason this was unclear is that no hearing tests were in fact carried out, so there was no evidence!) Issues On what basis could the gentamycine be held to have caused the injury? Holding presumption/inference Ratio Chouinard JA (for the majority) found that the facts, when put together, seemed to indicate causation. (He used the words “reversal of the burden of proof” but what he did was presume causation.) Beauregard JA (dissenting) reversed the burden of proof of causation, because the absence of tests had prevented Gburek from being able to prove causation.

Farrell v. Snell, [1990] 2 S.C.R. 311. (CB1p532) Jurisdiction New Brunswick Facts Snell went blind in her right eye due to complications in a cataract-removal operation. Although it was unclear what had caused the blindness, the trial judge concluded, “I am of the opinion that the defendant’s actions caused the plaintiff’s injury and that the defendant has not satisfied the onus that shifted to him.” Issues Was reversal of the burden of proof of causation necessary in this case? Holding No. Ratio The SCC ruled that courts can infer causation in the face of scientific uncertainty, even if there is no positive evidence from experts. Sopinka J. rejected Wilberforce’s approach in McGhee, but he didn’t necessarily reject all kinds of reversals.

3. loss of chance  This concept is derived from contractual cases.  In some cases, the plaintiff is unable to prove that the defendant’s fault caused a loss, because chances are >50% that the loss would have happened anyway. The balance of probabilities test would not be satisfied.  However, the plaintiff may have lost a significant chance of advantage or benefit, even if it was less than 50%. If damages are awarded for the loss of the chance itself, they should be awarded in proportion to the probability.

 This avoids an all-or-nothing approach, and it’s another way of dealing with increased risk.  The argument can only be used where the loss of chance is the only injury: i.e., a missed opportunity for something positive to happen.  This argument is mainly relevant to medical cases.  There is a mountain of arguments against loss of chance.  When you increase fault, you increase risk: should you be able to recover in every case?  This argument was rejected in the medical context in Laferrière v. Lawson.

Laferrière v. Lawson, [1991] 1 S.C.R. 541. (CB1p539) Jurisdiction Quebec Facts Dupuis died from breast cancer after Dr. Lawson failed to follow up on early signs. (Laferrière sued as executor to Lawson’s estate.) It seems, however, that Dupuis would have died anyway, so the cause of her death was cancer, not Lawson’s fault. Issues Could Dupuis’s estate be compensated for the loss of the small chance that she might have survived if properly diagnosed? Holding No. Ratio Loss of chance is not compensable; “it is at least necessary that such a probability, or here, at most, a small possibility, translate into a concrete benefit for the patient which she can be said to have lost as a result of the doctor’s fault.” However, damages were awarded for pain and suffering and diminished quality of life.

10/1/03 Unidentified Wrongdoer (Imputation) Cook v. Lewis, [1951] S.C.R. 830. (CB1p542) Jurisdiction British Columbia Facts Cook and Akenhead were hunting together, using identical guns and ammunition. They fired simultaneously at some grouse, at which point Lewis, hidden behind a clump of trees, was hit by several particles of shot. It was impossible to determine whether Lewis was hit by Cook’s shot, Akenhead’s, or both. Issues Could two defendants be held liable for damage caused by the fault of one of them? Holding Yes. Ratio Cartwright J looked at the similar American case of Summers v. Tice, which reversed the burden of proof of causation to the defendants on the grounds that they had “brought about a situation”—they were both negligent. (But Cartwright J hesitated to uphold this decision altogether.) Rand J agreed that the burden of proof of causation should be reversed, for the additional reason that the defendants’ actions had made it impossible for the plaintiff to prove causation. Locke J dissented, dismissing the action for lack of proof of causation. Comments Khoury considers the reasons given for reversal of the burden of proof to be “policy” reasons.

 In civil law terms, “partial causation” was proven. We know that the damage was caused by a gunshot, but we don’t know which one.

Massignani c. Veilleux, [1987] R.R.A. 541 (C.A.). (CB1p545) Jurisdiction Quebec Facts The Massignani brothers and the Veilleux brothers were out hunting when they got into a fight. In the course of the fight, one of the Massignanis managed to get ahold of Jean-Guy Veilleux’s gun. When the Veilleuxes walked off to call a conservation agent,

one of the Massignanis threatened to kill them, and one of the Massignanis fired at them as they were walking away. Jean-Guy Veilleux was hit and lost his right eye. It was impossible to determine which Massignani had fired. The Massignanis were acquitted in a criminal trial. Issues Could two defendants be held liable for damage caused by the fault of one of them? Holding Yes. Ratio Crête J based his decision on Art.1106, CCLC, which said that “L’obligation résultant d’un délit ou quasi-délit commis par deux personnes ou plus est solidaire.” In his opinion, the Massignanis’ dangerous behaviour was the fault, not just the actual shot.

 The Massignani c. Veilleux decision and others like it were codified in the CCQ as (a.1480):  If people have separately committed faults which may have caused the injury, and it is impossible to determine which fault caused it, they are held solidarily liable, just as if they had taken part in a wrongful act together.  Fairchild v. Glenhaven Funeral Services (seminar exercise):  case about a man who got cancer from asbestos from one of several employers  legal issues:  Other (non-asbestos) causes were possible, although the House of Lords ignored this.  Only two of several employers were still around to sue.  Causation (imputation) was unproven.  policy issues:  The plaintiff deserves compensation.  The uncertainty was created by the defendants.  The defendants created a risk.

Sindell v. Abbott Laboratories, 607 P2d 924 (Calif. SC 1980). (CB1p548) Jurisdiction United States Facts The plaintiffs were suing on behalf of hundreds or thousands of women who suffered from cancer after their mothers had taken a drug called DES during pregnancy. Over 200 companies manufactured DES at the time, and it was impossible to know which company had made the pills take by which woman’s mother. There was a further complication in that not all of the potential defendants could be identified, and of those that could, not all of them could be sued in California. Issues Can a group of defendants be held liable for the damage cause by the fault of one of them? Holding Yes; they can be held liable in proportion to their share of the market at the time DES was prescribed. Ratio Mosk J. based his decision on the fact that all of the defendants were at fault; it seems fairer that they should bear the cost of the injury rather than the innocent plaintiffs. Mosk J. refused to follow Summers v. Tice (the US equivalent of Cook v. Lewis) and reverse the burden of proof of causation. Mosk J.’s “market share” approach was based on the policy goal of compensation combined with a desire not to hold one drug company responsible for the faults of the others. Comments It seems to me that this case should be classified under “unidentified victim” as well as “unidentified wrongdoer.” It’s interesting because it involves a large number of wrongdoers and a large number of victims; the only problem is drawing the individual links between companies and patients. The “market share” approach seems like the fairest approach if one can leave behind notions of individual responsibility and think of it as a problem of collective responsibility. Market share liability was used a few more times in the US, but soon died out. This seems like a law-and-economics-derived approach to liability.

J. Weinstein, “Ethical Dilemmas in Mass Tort Litigation” (1994) (excerpt)  Weinstein points out that mass tort cases involving thousands of plaintiffs are more akin to public institutional litigation than to individual tort cases. They are not just about assigning fault and assessing compensation, they are also about people’s health and sense of security and the viability of major economic institutions. They concern the public at large, not just the people before the court. The legal process needs to be modified to match today’s social, economic and technological realities.

17/1/03 THE APPROPRIATE SCOPE OF RESPONSIBILITY Acts and Omissions  Does the law impose a duty to rescue people in danger (or simply in need of help)?  This begs another important question: Is the law willing to impose positive obligations?  In Stovin v. Wise, Lord Hoffman summarized the three main arguments against positive obligations: 1. a political argument: liberal individualism 2. a moral argument: the “why pick on me” question 3. an economic argument: activities which create risks should bear their own costs  The common law has traditionally found these arguments convincing and refused to impose a duty to act.  There is also the fact that causation is difficult to assess in cases imposing a duty to act.  Civil law has not been convinced by these arguments. It believes in:  faute d’action  faute d’omission

T. Eaton Co. of Canada v. Moore, [1951] S.C.R. 470. (CB2p7) Jurisdiction Quebec Facts A customer at Eaton’s department store dropped a glass bottle of lotion which shattered on the marble floor. About a minute later, Moore came along, slipped on the patch of lotion, and injured herself. In the interval between these two events, Bernard, an Eaton’s employee who was selling clocks at a nearby counter, noticed the spill and phoned the caretaking department, but did nothing else to prevent customers from stepping on the spill. The accident happened before the employee of the caretaking department arrived, about three minutes after the spill. Issues Was Bertrand at fault for his omission, of not preventing customers from slipping? Holding No. Ratio Rinfret J, for the majority, found that the time between the fall of the bottle and Moore’s slipping was so short as to preclude fault. Eaton’s system of housekeeping was (more than) reasonably efficient, and therefore Eaton’s could not be found to be at fault. Since Betrand was a clock salesman, the floors were not his problem. Taschereau J, concurring, held that it would be impossible to foresee and prevent all accidents. Given that this was a case of the responsibility of the “master” for the fault of the “servant,” the fault of the “servant” is required, and Taschereau J. did not find it. Estey J and Cartwright J dissenting, argued that Bertrand had a duty to take positive action. Among other things, Estey J pointed out that the burden of precautions would have been very slight. Comments There was a strange insistence here on the question of a “duty” to act. This language was borrowed from common law. Civil law should have talked about a general duty.

 In the case of Valvalkenburg v. Northern Navigation Co. (1913), an Ontario court exonerated a captain who did nothing to rescue a sailor who had fallen overboard. It held that the captain had a moral duty but no legal duty to rescue the drowning man, and was thus not liable.  From the mid-20th century onward, the common law’s attitude changed in certain situations. This was due to:  greater concern for personal security  a shift toward collectivist principles  increased judicial willingness to turn moral obligations into legal obligations  There was still no general obligation to act, but exceptions were made for certain circumstances, especially if there was a special relationship between the parties.

Crocker v. Sundance Northwest Resorts, [1988] 1 S.C.R. 1186. (CB2p17) Jurisdiction Ontario Facts Crocker was paralyzed in an accident in a “tubing” competition, a dangerous sport in which competitors slide down ski slopes in inner tubes. Crocker was visibly intoxicated (falling down) at the time of the competition. Sundance employees asked him if he was in a condition to participate, and “suggested” to him that he shouldn’t participate, but did nothing to stop him from participating. In fact, when he dropped his inner tube and it slid down the hill, they provided a new one for him. Crocker had signed a waiver as part of the entry form, but the waiver was not drawn to his attention; he thought he was just signing an entry form. Issues 1. Did Sundance have a legal duty to take positive steps to prevent Crocker from sliding down the hill? 2. Had Crocker voluntarily assumed the risk? 3. Was Crocker contributorily negligent? Holding 1. Yes. 2. No. 3. Yes. Ratio 1. Wilson J. noted the common law distinction between “misfeasance” and “nonfeasance,” but pointed out that nonfeasance can be a basis for fault in a growing number of kinds of relationships. In this case, she relied on Jordan House v. Menow and other case of intoxicated people to find “a duty not to place another person in a position where it is foreseeable that that person could suffer injury.” It also seems relevant that the injury took place on Sundance’s land and that Sundance was profiting from the risky competition. 2. It was unclear whether Crocker had assumed the physical risk because he was so drunk when he entered the contest. However, it was very clear that he had not assumed the legal risk, because he was not even aware of the waiver he had signed. Wilson J. said that volenti is a complete defence, and is now rarely used in cases where the defendant’s fault is clear—but Prof. Khoury said that volenti was no longer necessarily a complete defence. 3. No reasons were given, but Crocker’s fault was held to have contributed 25%.

 Both systems thus impose a duty to rescue, but in particular circumstances.  Civil law has no problem articulating a general duty to rescue.  a.2 of the Quebec Charter gives people whose lives are in danger a right to be rescued, and imposes a general obligation to rescue.  However, this obligation is qualified: 1. if there is a “risk” to the rescuer or to a third party 2. for any “reasonable motive”  There hasn’t been any case law on this point, so it’s very vague. 3. by the fact that someone’s life must be in peril  Someone without a medical background may not be able to judge this.  The history of a.2 of the Quebec Charter is bizarre. It originates in a Vichy French law which made it a crime to fail to prevent a crime causing bodily harm. This law was designed by the

Nazis to target members of the French resistance. After the war, the French adapted it to their criminal code (making it a crime not to rescue someone in danger), and it later spread throughout Europe.  (a.1457) is also considered by some to be a source of the duty to rescue, because it imposes a general standard of behaviour.  Specific civil law statutes impose the duty to rescue in certain situations:  Loi sur la santé et services sociaux  Code de déontologie des médecins  etc.  In common law, omissions are a duty of care issue. There is no general duty of care for omissions.  However, various relationships have caused courts to impose a duty to rescue:  parents  children  doctors  patients  employers  employees  occupiers  invitees  any situation of authority, control or supervision:  teachers  pupils  jailer  prisoners  any situation where the defendant derives commercial benefit from the plaintiff:  This has been extended the problematic case of bar owners and their intoxicated clients (still on premises, or after ejected).  This is mainly supported by Jordan House v. Menow, [1974] S.C.R. 239.

Murphy v. Little Memphis Cabaret Inc., [1996] O.J. No. 4600. (CB2p25) Jurisdiction Ontario Facts Murphy and Cairns were at the Little Memphis Cabaret near closing time when they got into a fight with a group of four other clients. The bouncer, owner, and some other people ejected the group of four through the back door. They then proceeded to eject Murphy and Cairns through the front door. The group of four immediately came around to the front and savagely beat up Murphy and Cairns. Issues Did the tavern owner owe the plaintiffs any duty? What was the ambit of that duty? Holding Yes, the tavern owner owed the plaintiffs a duty not to expose them to unreasonable risk of harm. Ratio Zuber J based his decision on Jordan House v. Menow and Dunn v. Dominion Atlantic Railway; he found that the duty articulated in these cases should not be confined to intoxicated people. Zuber J also emphasized that the burden of precautions (keeping Murphy and Cairns inside until the group of four had left, or calling a cab for them), would have been very small.

W. Van Gerven et al., Tort Law: Scope of Protection, (1999) at 78 (CB2p28)  Van Gerven seems to be implying that the common law and civil law are not that different when it comes to a positive duty to act. They both find such a duty in certain situations:  when there is a special relationship between the plaintiff and the defendant  when the defendant created a source of danger to his/her own economic benefit  However, French law, unlike English or German law, imposes a “general” duty to act to help a person in danger or to prevent a violent crime. In English or German law, failure to act would lead to liability only where the law specifically provides.  Whether such a duty is imposed in various situations may depend on the “burden of precations” or the degree of effort it would have required in order to act.

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 To encourage rescuers to act, both common law and civil law have limited rescuers’ liability.

 In Quebec, this is (a.1471)  Most common law provinces (including Ontario) have legislation limiting rescuers’ liability; however some only limit it for medical professionals.  In common law, the rescuer has a duty of care from the moment she starts rescuing.  In all of these provinces, liability is limited to gross negligence. Gross negligence includes:  intentional negligence  total disregard for others’ safety Delineating the Duty of Care  “Duty of care” is an obligation to act with reasonable care toward someone else.  It is used as a limiting device, in order to make liability impossible in some circumstances.  The loss must lie where it falls unless there is good reason to shift it to someone else; the loss can only be shifted when the relationship is sufficient. This is a question of law, not of fact.  Duty of care is a mechanism of social control: it is not purely legal—it forces judges to consider policy questions.  Duty of care has been used to limit (although not necessarily exclude) liability in cases such as:  failure to act  psychiatric injury  pure economic loss  negligence of public authorities  Canadian courts have taken an expansive view of duty of care, and have not used it to limit liability as much as have courts in other common law countries.  The “neighbour principle” in Donoghue v. Stevenson contains two elements: 1. reasonable foreseeability (“contemplation”) 2. proximity (“close and direct relationship”)  One interpretation holds that these are two separate concepts/requirments.  Jurisdictions that follow this view must then figure out how to define proximity.  Another interpretation is that proximity is defined by reasonable foreseeability.  This is the official view in Canadian common law.  The reasonable foreseeability test doesn’t require that individual victims be identified, but the general class of victims must be identifiable.  Donoghue v. Stevenson was a case about extending duty of care. It just so happened that it contained the “neighbour principle” as well.  Afterward, courts interpreting it had to decide whether it was just meant to establish a duty of care for manufacturers toward consumers, or whether it established a general principle that could be used in new situations.  The same pattern has been repeated in other cases like Dorset Yacht.  The pattern continues in cases of pure economic loss and psychiatric injury.

Home Office v. Dorset Yacht Co. Ltd, [1978] A.C. 1004 (H.L.). (CB2p31) Jurisdiction England Facts A group of young offenders (“Borstal trainees”) were being held on an island under the supervision of three Borstal officers. The young offenders were not physically enclosed. At night, contrary to orders, the three officers went to sleep. Seven of the young offenders escaped by stealing a yacht, which collided with a yacht belonging to Dorset Yacht Co. It was admitted that the officers were negligent in falling asleep and therefore letting the young offenders escape. (This implies that the officers could have prevented the young offenders from escaping if they had stayed awake, and that it was reasonably foreseeable that the young offenders would cause damage if they escaped.) Issues Did the Home Office owe any duty of care to prevent the escape of the young offenders toward people whose property would be at risk if they escaped? Holding Yes. Ratio Lord Diplock held that one must look to precedent in order to determine whether there

is a duty of care. If there is no precedent (as in this case), the judge must choose whether to extend Donoghue v. Stevenson, considering: 1. reasonable foreseeabilty 2. policy (this is new) Lord Diplock limited the liability of the Home Office to harm caused in the course of the escape, at roughly the same time, in the vicinity of the escape. (This is because the risk is greater in the vicinity of the escape than the risk to the public at large.) Policy issue—who should bear the loss: Home Office or innocent respondents? I honestly can’t find any strong, radical statements in Diplock’s judgment—I actually think Lord Reid’s judgment might make a clearer statement in favour of policy. Comments This case shows how the courts have extended Donoghue v. Stevenson to new situations. cf. Rylands v. Fletcher! Before the main issue could be decided, there was a preliminary administrative law question. Public authorities can almost never be held liable for acts in their area of discretion (intra vires). In this case, the judges made it clear that they were not assessing any administrative decisions (e.g., the decision to have the young offenders on an island)—they only found negligence in the officers’ decision to go to sleep.

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 In the 1978 case of Anns v. London Borough of Merton, Lord Wilberorce reframed the neighbour principle in terms of policy. Wilberforce established a two-step analysis: 1. proximity (understood to be equivalent to reasonable foreseeability, and leading to a prima facie duty of care)  This meant that there was a general duty of care, except where it conflicted with… 2. policy (any considerations which ought to reduce or limit duty of care)  The role of policy was openly acknowledged; judges had to state their reasons for not finding a duty of care.  This was criticized as too legislative, but it allowed courts to maintain the extra requirements for pure economic loss, psychiatric injury, etc.  Dorset Yacht prefigured Anns: the analysis was based on reasonable foreseeability, but policy obviously played a role.  The Anns test was formally adopted in Canada by Wilson J. in City of Kamloops v. Nielsen (1984)  In England, the courts added a third step to the Anns test in Caparo v. Dickman (1989): They separated proximity from reasonable foreseeability.  Since Anns, courts have continued to reason inductively, looking for precedent. The Anns test only becomes important when there’s no clear precedent.

Cooper v. Hobart, [2001] 3 S.C.R. 537. (CB2p45) Jurisdiction British Columbia Facts Eron, a registered mortgage broker, went broke due to irresponsible practices of its principals, using investors’ money for unauthorized purposes. Cooper, one of Eron’s investors, sued Hobart, the provincial registrar of mortgage brokers. She alleged that the registrar had breached a duty of care toward Eron’s investors to inform them of Eron’s violations of the legislation or to suspend Eron’s license. Issues Does a statutory regulator owe a duty of care to investors for (alleged) negligence in failing to oversee the conduct of a company? Holding No. Ratio McLachlin CJC and Major J explicated the Anns test. They divided the first step (proximity) into two parts: a. reasonable foreseeability b. proximity, understood to refer to the nature of the relationship between the parties, and based on existing categories as well as policy, although there was no single unifying characteristic.

As for the second step, McLachlin CJC and Major J said that this was concerned with residual policy considerations (i.e., other than the parties’ relationship): the effects of recognizing a duty of care on other legal obligations, the legal system, or society in general. McLachlin CJC and Major J then applied the Anns test. They interpreted the first part of the test (proximity and reasonable foreseeability) to ask whether the relationship between the parties was such that the defendant was under an obligation to be mindful of the plaintiff’s legitimate interests. They answered no: the registrar’s duties arose through a statute, and the statute only created a duty toward the public at large, not toward the investors in particular. Given this conclusion, it was unnecessary to go on to the second stage of the test, but in obiter, McLachlin CJC and Major J did so. They said that even if there had been a prima facie duty of care, there were clear policy reasons for negating this duty, including the registrar’s freedom of discretion, conflicts between the public interest and investors’ interests, floodgates, and the costs to taxpayers of effectively creating an “insurance scheme” for investors. Comments Anns is still the basic test, but Cooper explicity recognizes policy considerations at the first step. Prof. Khoury says this is more honest. This understanding of duty of care seems to resemble the English separation of reasonable foreseeability from proximity, as in Caparo v. Dickman. Does it really make any difference to divide the policy arguments into two steps? It seems that it would make a difference from the viewpoint of the lawyer, who has to prove duty of care.

Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y.C.A. 1928). (CB2p60) Jurisdiction United States Facts A man was running to board a departing train. He was carrying a package. Railroad guards tried to push him through the door, and in the process, his package fell. Although no one else knew this, the package containted fireworks. It exploded, and the explosion tipped over a large scale at the other end of the platform, which fell on Palsgraf and injured her. Palsgraf sued the railroad company. Issues Were the railroad guards negligent to Palsgraf? Holding No. Ratio According to Cardozo CJ, “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.” There could only be a duty of care when the harm was reasonably foreseeable, or foreseeable by “the eye of ordinary vigilance.” Because he did not find any duty of care, Cardozo CJ stopped his analysis there. Andrews J, dissenting, slammed the concept of duty of care: “Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” Andrews then went on to analyze the case in terms of causation. Andrews J said that duty of care should be “prescriptive,” not “relational.” Comments Although it comes from the common law, Andrews J’s approach is one of the best statements of the civil law’s position in (a.1457). This approach would use causation as the safeguard for limiting liability in such cases; it would consider duty of care to be an unneccessary limitation. A classic common law reply would be expressed in terms of individual freedom and agency, saying that reasonable foreseeability allows people to make choices about what risks they are willing to take.

Conaghan and Mansell, The Wrongs of Tort, pp.11-21. (duty of care)  The fact that responsibility in negligence law is limited to persons with whom one has a particular relationship undermines the notion that the law of negligence is based on morality.  Also, in practice, insurance results in losses being spread, not shifted: this further undermines the claim that the a law of negligence based on fault is just.  Lord Atkin’s neighbour principle is vague, leaving much up to judicial discretion  Moreover, judges have to decide with the benefit of hindsight what should have been foreseeable.  Conaghan and Mansell suspect that judges found the Anns test to be too generous in establishing a general duty of care where not contrary to some particular policy reason—that’s why they overturned it in subsequent cases.  Also, judges were uncomfortable with explicit considerations of policy, so they preferred the Caparo approach, with its vague phrase, “just and reasonable.”  The general idea was to move away from any universal principle, back to a case-by-case approach —which is the way the law worked before Donoghue v. Stevenson.  This is consistent with a view of tort law as politically neutral, free of any broader purposes.  It is no coincidence that this shift took place in the decade of Hayek and Thatcher.  However, the 1990s have seen a return to policy arguments. Anns and Caparo were “high points” in their respective directions, rather than revolutionary cases which changed subsequent law.

7/2/03 Relational Loss

Secondary Victims  The common law terms are “primary victim” and “secondary victim.”  The civil law terms are “immediate victim” and “victime par ricochet.”  In both common law and civil law, the wrongdoer is liable to compensate not only the primary/immediate victim, but also the person injured as a result.  If the primary/immediate victim is dead, damages can be awarded to:  the primary/immediate victim’s estate  secondary victims:  people at the scene of the accident  friends and relatives  employers  community  In civil law, if the immediate victim is dead:  The CCLC rules for this were similar to common law at the time: recovery was limited to victimes par ricochet who had a close relationship with the immediate victim.  (a.1056,CCLC) limited recovery to spouses and ascendant and descendant relatives only.  Nor did civil law allow any claims for solatium doloris during this period.  (a.1056,CCLC) came from an English statute, and judges used common law principles to interpret it. Traditionally, before the CCLC, civil law had not limited recovery in these ways. Academics criticized (a.1056,CCLC) as a historical mistake.  Under the CCQ, (a.1056,CCLC) was removed entirely from the code.  In Augustus v. Gosset (see p.5), L’Heureux-Dubé J discussed the issue of solatium doloris at length, pointing out that (a.1056,CCLC) was a historical mistake. She found that “compensation for the grief felt when someone close to us dies…is clearly consistent with the civil law’s full recognition of moral damages.”  In awarding solatium doloris, L’Heureux-Dubé J said that courts should consider:  the circumstances of the death  the age of the child and the parents

 the relationship between the child and the parents  the parent’s ability to cope with the death  the presence of other children or the possibility of having more children  Civil law accepts all kinds of claims from anybody—not just parents.  These can cover psychological injury, consortium et servitium, etc.  Civil law prefers to use causation as its main way of limiting claims.  In civil law, if the immediate victim is still alive:

Régent Taxi & Transport v. La Congregation des petits-frêres de Marie [1929] SCR 650. (CB2p64) Jurisdiction Quebec Facts Brother Henri-Gabriel was injured in an accident caused by Régent Taxi. His religious community sued for (1) medical expenses, (2) property of the community destroyed in the crash, and (3) damages for the loss of Brother Henri-Gabriel’s services. Issues Did the religious community fall within the meaning of the word “autrui” (“another”) as used in (a.1053,CCLC)? Holding Yes. Ratio Anglin CJC made a textual argument: He found that “autrui” (“another”) in (a.1053,CCLC) article included everyone. He rejected the argument that, in order to give meaning to (a.1056,CCLC), (a.1053,CCLC) could only respond to claims by the immediate victim. Instead, Anglin CJC adopted the view that (a.1056,CCLC) provides special limitations on liability when the immediate victim is dead. Anglin CJC appears to have been wary of limiting (a.1053,CCLC), because all civil liability in Quebec depends on it. Comments Two judges from Quebec dissented!

Hôpital Notre-Dame et Théoret c. Laurent, [1978] 1 SCR 605. (CB2p95) Jurisdiction Quebec Facts Mme. Laurent was injured while curling. She went to the hospital emergency room where she was treated by Dr. Théoret. Dr. Théoret didn’t do any X-rays, and negligently failed to detect the fracture in Mme. Laurent’s femur. Mme. Laurent sued the doctor and the hospital, and her huband also sued for medical fees and costs, care given to his wife, and “loss of consortium.” Issues Did M. Laurent also have a claim as “another” under (a.1053,CCLC)? Holding Yes. Ratio The court reviewed previous cases, including Régent Taxi, and came to the same conclusion: (a.1056,CCLC) does not limit (a.1053,CCLC) in cases where the immediate victim is still alive.

 In common law, the situation of secondary victims is much more complicated:  if the primary victim is dead: This situation is covered by “fatal accident legislation,” which is different in each province.  Secondary victims’ claims for pecuniary damages are covered.  Secondary victims’ claims for non-pecuniary damages may be covered, but it varies between provinces.  if the primary victim is alive,  Secondary victims can only claim pecuniary damages if they meet all the requirements for negligence (including duty of care and causation): basically, you’ve got to be a primary victim.  Secondary victims can try to claim for non-pecuniary damages, but they are unlikely to win unless these damages flow from a physical injury (which would seem to make someone a primary victim too.)  Damages are generally not awarded for psychiatric injuries, including solatium doloris.  The courts have extended the Donoghue v. Stevenson principle to psychiatric injuries, but these cases are seen as exceptions. The starting point is that there is no recovery.  Common law’s main limiting device here is duty of care, for various policy reasons:

 floodgates  evidentiary difficulties  the risk of fraudulent claims  a traditional belief that psychiatric illness is not as bad as physical injury.

Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All ER 907 (H.L.). (CB2p104) Jurisdiction England Facts The police negligently let too many people into a closed space at Hillsborough football stadium, and 95 people were crushed to death as a result. This lawsuit was brought by a broad range of secondary victims, including parents, siblings, fiances, and strangers; it included some who had been there at the scene, some who had seen it on TV, and others who had heard about it by word of mouth. Issues Could the plaintiffs claim damages as secondary victims? Holding No. Ratio Lord Ackner held that the claims of secondary victims depended on three “elements”: 1. “class of person”: there is a presumption that parent and child, husband and wife can claim, based on their “love and affection,” but this presumption is rebuttable. Others with close and intimate relationships would have to prove their love and affection. There is also a residual category for by-standers who could claim if “a reasonably strong-nerved person would have been so shocked.” 2. proximity in time and space: “…damages for merely being informed of, or reading, or hearing about the accident are not recoverable.”; however, shock can arise “not only through the sight or hearing of the event, but of its immediate aftermath.” 3. whether the injury was induced by a “shock”: “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.” There is no claim for psychiatric damage caused by witnessing someone slowly deteriorate and die. In this case, proximity in time and space ruled out all but two of the secondary victims, the two who were at the grounds. (Going to identify bodies later that night did not count as the “immediate aftermath.”) The two who were at the grounds had lost brothers and a brother-in-law: in this case, their close relationships of love and affection were not established, so they could not recover.

 The common law test for psychiatric injury to secondary victims is therefore derived from Page v. Smith and Alcock. Three criteria are required: 1. type of injury: The injury must be a recognized psychiatric illness.  This means that there can be no claims for solatium doloris. 2. reasonable foreseeability of the psychiatric injury: Courts will use the test in Page v. Smith.  a primary victim (a “participant” in the event) only has to prove that some kind of injury (physical or psychological) was reasonably foreseeable.  a secondary victim must prove that it was reasonably foreseeable that: a. psychiatric injury would be caused b. to a person of “normal fortitude.” 3. proximity: a. the secondary victim’s relationship to the primary victim (“class of person”) b. the secondary victim’s proximity to the accident in time and space c. the means by which the psychiatric injury occurred d. the manner in which the psychiatric injury occurred  Numbers 3 & 4 (means and manner) are sometimes lumped together, as they were in Alcock.  This is like the Anns test, but with extra conditions added.

Conaghan and Mansell, The Wrongs of Tort, pp.34-44. (psychiatric harm)  The distinction between physical and psychiatric harm is medically indefensible; the two are often inseparable—the law has not kept up with medical knowledge.  Many of the policy reasons given for limiting claims for psychiatric harm apply equally well to physical injuries (evidentiary difficulties, the risk of fraudulent claims, etc.)  So it really all comes down to floodgates.  The various rules that have been devised through the cases are incoherent and unjust.  What is normally called the Page v. Smith test is actually derived from the comments of Lord Oliver in Alcock.  The requirement that the secondary victim’s psychiatric harm be foreseeable in “a person of ordinary courage and fortitude” contradicts the principle that a tortfeasor takes her victim as she finds him.  In Page v. Smith, it was ruled that a primary victim’s psychiatric harm does not have to meet standards of reasonable courage and fortitude. (Does this distinction between primary and secondary victims have any moral basis?)  The rules for distinguishing primary and secondary victims are also problematic. Different law lords defined it differently in the Alcock case, partly because some were trying to extend liability while others were limiting it.  The Alcock decision can be contrasted with the decision in Frost v. Chief Constable of the South Yorkshire Police (1997), in which police officers traumatized by the Hillsborough tragedy were compensated.  In the Alcock case, the needs of the victims were irrelevant to the court: it was turning social facts into legal questions.

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Injury to Economic Interests  “Pure” economic loss means economic loss without injury to person or property.  In civil law, recovery for pure economic loss has never been a problem, in theory.  However, civil law has used causation as its limiting factor (to prevent floodgates).  Civil law has resisted limiting the meaning of “another” in (a.1053,CCLC) or (a.1457) in order to limit liability.

Elliott c. Entreprises Côte-Nord Ltée., [1976] R.J.Q. 584 (C.A.). (CB2p106) Jurisdiction Quebec Facts Elliott hit Giannotti with his car. Giannotti was a 49% owner and employee of ECN, and worked two shifts as a painting foreman for the price of one. Giannotti was unable to work for 10 months following the accident, and ECN had to hire two foremen to replace him. ECN sued Elliott for the additional cost of hiring an extra foreman, as well as for benefits it paid to Giannotti during his recovery. Issues 1. Could ECN be counted as “another” under (a.1053,CCLC)? 2. Was the economic injury to ECN caused by the accident? Holding 1. Yes; 2. No. Ratio 1. Owen JA held that the “clear meaning” of (a.1053,CCLC) was that it included anyone—it could not be limited to certain classes of persons. 2. However, Owen JA also found that it was not clear that Elliott’s accident had caused the extra cost of hiring additional foremen. It is true that Giannotti’s inability to work for 10 months was caused by the accident, but ECN probably would have had to hire extra staff anyway. During the four months following the accident, ECN’s business took off, expanding from 2 to 50 contracts and from 10 to 50 employees. The two foremen who were hired to replace Giannotti were kept on when Giannotti returned to work. Comments

J.E. Construction Inc. c. General Motors du Canada Ltée., [1985] C.A. 275. (CB2p127) Jurisdiction Quebec

Facts J.E. was digging when it accidentally broke a water main. As a result, no water was supplied to the GM plant and GM had to halt production for several hours. During this time, GM nonetheless had to pay its employees, because of a stipulation in their collective agreement. GM sued for the cost of its employees’ salaries during the downtime. Issues Did J.E.’s fault cause GM’s economic loss? Holding Yes. Ratio Finding no problem with including GM as “autrui” under (a.1053,CCLC), Mayrand J went on to ask whether the loss was an “immediate and direct” result of the accident. Doctrine did not seem to provide a clear answer, so Mayrand J tried “jurisprudential empiricism” (i.e., it all depends on the facts of the case). Much of the decision seems to have been based on Joly c. Ferme Ré-Mi [1974], where a driver who had crashed into a hydro pole was held to have caused the asphyxiation of chickens. Comments

 Common law has traditionally refused to compensate for pure economic loss. Its “bright line rule” holds that there is no duty of care.

Weller v. Foot and Mouth Disease Research Institute, [1966] 1 Q.B. 569. (CB2p109) Jurisdiction England Facts Weller owned a cattle auctioning business in a rural area. Due to the FMDRI’s fault, a virus escaped from its labs and infected cattle at neighbouring farms, which had to be destroyed. As a result, Weller’s business suffered. Issues Did the FMDRI have a duty of care to Weller? Holding No. Ratio There is no duty of care toward someone who might suffer pure economic loss. If there were, the FMDRI’s liability could extend indefinitely throughout the economy. The court applied a bright line rule, saying that damages can only be awarded when someone’s person or property was directly injured. In this case, the FMDRI would have to compensate farmers whose cattle died, but no one else. Comments This is the classic common law position on pure economic loss.

 The floodgates concern was stated by Cardozo J in Ultramares Corp. v Touche: “There is a fear of liability in an intedeterminate amount, for an intedeterminate time, to an intedeterminate class.”  The Wrongs of Tort calls this a “mantra.”  In many cases, insurance also obviates the need to recover for pure economic loss.  The bright line rule also results from the separation between contract law and tort law.  Common law has also had a traditional belief that financial interests are not as important as physical or proprietary interests.  However, there have been exceptions to the bright line rule:  In the Hedley Byrne case (1964), third parties were compensated for pure economic loss resulting from an auditor’s negligent misstatement about a company’s financial health.  English and Canadian common law accepted Hedley Byrne as a precedent, but they required more than foreseeability. Canadian courts added extra limitations (not important) to the Anns test.  Relational economic loss has been one of the main exceptions. Relational economic loss arises when someone injures someone else’s person or property, and a third party suffers an economic loss because of her relationship with the victim.  The relationship in question can be contractual or extra-contractual:  e.g., If a woman was hit by a car,  her employer could sue for the loss of her services (“action per quod servitium amisit”).  her husband could sue for the cost of looking after her.  Traditionally, only the husband was entitled to sue if the wife was injured; now some common law provinces also allow the wife to sue if the husband is injured.  There is no recovery for extra-contractual relational economic loss in common law.

 CNR v. Norsk is the leading Canadian common law case on contractual relational economic loss.

Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 SCR 1021. (CB2p110) Jurisdiction Federal Facts Norsk Pacific’s tugboat negligently hit a railway bridge belonging to the federal government. CN had a contract for the use of this bridge; 86% of the traffic on this bridge was CN trains. The bridge was known locally as “the CNR bridge,” and it formed an essential link between the Vancouver terminus and CN’s main line. CN participated in negotiations whenever the bridge had to be closed for maintenance; it also supplied materials, inspection and consulting services for the bridge. As a result of the accident, CN had to reroute its traffic for several weeks. Issues Can a third party recover for economic loss they suffer as a result of damage to the property of another party with whom they have a contract? Holding Yes. (3-3 split between McLachlin J (yes) and La Forest J (no)); Stevenson J (yes) broke the tie. There was no majority reasoning. Ratio McLachlin J used an incremental, case-by-case, policy-based approach. She did not want to formulate any general principle. For her, the main issue was proximity, and this could be determined through the two-stage test devised in Anns and Kamloops. However, she modified the first (proximity) stage of the Anns test: Rather than a test, proximity should be an “umbrella” grouping together different situations and factors, including the relationship between the parties, physical closeness, any assumed obligation to take the other party’s interests into account, etc. Courts should proceed by analogy, but if a new situation should arise, they should take these factors into account. As for economic policy reasons, McLachlin was not impressed by the “floodgates” argument. She also rejects the “insurance” argument on the basis that it would reduce the defendant’s duty to be careful. (She also doubts that CN could insure at a reasonable cost.) Nor does McLachlin believe in the loss-spreading argument (similar to the insurance argument): she thinks it would result in more losses. She also rejects the suggestion that the contract should have allocated such a risk, because it rests on an oversimplified view of contractual bargaining, and it ignores fault. Applying these thoughts to the facts of the case, McLachlin found that CN was so closely connected to the bridge that it was if it had a “joint venture.” She held that in such cases, liability should be allowed. It was such an exceptional case that it would not lead to “floodgates.” In his dissenting opinion, La Forest J held that there could be no duty of care for policy reasons. He said that floodgates was not the only policy reason behind the bright line rule, and so McLachlin J’s judgement didn’t solve the problem. The rule was also meant to encourage parties to act economically efficiently. He decided the case based on the contractual allocation of risk, and the fact that CN was the better loss bearer. CN had had the same problem before, so it was in a position to make contingency plans. As a sophisticated company, it could also “self-insure” in its budget, take out real insurance, or negotiate some kind of protection in a contract with the bridge owner.

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 McLachlin retreated from her position on proximity in Bow Valley Husky v. St. John Shipbuilding. While she claimed to be following her decision in CNR v. Norsk, she ended up taking a position closer to La Forest J’s dissent. She upheld a general exclusion of duty of care for contractual relational pure economic loss. She said that the list of situations where the courts would find duty of care was not closed, but that the court would not deliberately seek to expand the list.

Conaghan and Mansell, The Wrongs of Tort, pp.21-34. (pure economic loss)  The traditional reasons for denying recovery for pure economic loss (floodgates, insurance) could equally apply to many other situations.  The Hedley Byrne case (1964) allowed recovery for pure economic losses from a negligent misstatement arising out of a “special relationship” between the parties. This seemed to create a special exception to the bright line rule.  There are borderline cases where it’s not clear whether the loss is purely economic, e.g., latent structural defects in buildings. This was the issue in Murphy v. Brentwood DC (1990).  In the Henderson case (1994), it seems that the Hedley Byrne principle was extended to investors who had relied on someone else’s undertaking. Lord Goff would have liked to strike down all barriers to recovery for pure economic loss.  Hedley Byrne plays a strange role, filling a gap between contract and tort law. Causation

The Scope of Risk  There are two ways of looking at causation:  factual causation: This is what we studied last term. It means telling the story of the injury: What actually happened?  legal causation: This means distinguishing conditions from causes and attributing liability among the causes (once the facts are known).  Common law also calls this “remoteness.”  This is mainly a common law distinction, but civil law sometimes uses it too, especially in Quebec.

Hart & Honoré, Causation in the Law, 2nd ed. (1985) pp.9-13. (CB2p130)  Philosophical theories of causation have been immensely useful in science, but not so in law or history. This is because scientists try to construct generalizations, whereas lawyers and historians are concerned with causation in particular cases.  Common-sense notions of causation distinguish between causes and mere conditions. This is important in legal or historical causation as well.

 Common law recognizes that policy plays a role in determining causation. (Civil law does not.)  The two main standards for evaluating causation are: 1. directness 2. foreseeability  Both systems have used each of these.  These standards can often lead to different results.  For example, in the case of Falkenham v. Zwicker, a driver swerved to avoid hitting a cat and crashed into a fence. Staples from the fence fell onto the field. A few cows ate the staples, and some died.  The directness approach would find causation.  One wouldn’t think the foreseeability approach would find causation, but it did.  Civil law uses the criterion of directness: This has been codified in (a.1607): The damage must be the “immediate and direct consequence” of the fault.  Early 20th-century common law used directness too.

In re Polemis and Furness, Withy & Co., [1921] 3 K.B. 560 (C.A.). (CB2p133) Jurisdiction England Facts Polemis chartered the steamship Thrasyvoulos to Furness. Furness’s employees were loading metal planks onto the ship by dropping them from a crane. One of them created a spark which caused a fire. Issues Was the dropping of the metal planks the cause of the fire? Holding Yes.

Ratio The fact that some kind of damage was foreseeable was enough to establish fault. Causation was established because the damage was the direct consequence of the fault. For the purposes of causation, it did not matter that the particular type of damage was not foreseeable. Comments

 This test was criticized in Wagon Mound 1.

Overseas Tankship v. Morts Dock & Eng. (Wagon Mound 1), [1961] AC 388 (PC). (CB2p134) Jurisdiction Australia Facts The crew of a ship, the Wagon Mound, carelessly spilled a large volume of furnace oil into Sydney Harbour. The oil surrounded the docks belonging to Morts, where two ships were undergoing repairs including welding. When the manager of the repairs saw the oil, he stopped the work, but resumed it when he was told that furnace oil was extremely hard to ignite. Two days after the spill, the oil was ignited, presumably by a piece of hot metal from the welding hitting some debris under the dock, which then set fire to the oil. The docks were badly burned. Issues Was the Wagon Mound’s fault in spilling furnace oil the cause of the fire? Holding No. Ratio Although the spilling of the oil was the direct cause of the fire, it was not foreseeable that such a spilling would cause a fire. Viscount Simonds overturned Polemis and wrote, “…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.’” Comments It’s strange how the Wagon Mound owners were found liable to the ship owners (in Wagon Mound 2), but not to the dock owners (in this case!)

Directness v. Foreseeability  How flexible are the directness and foreseeability tests? Does “directness” give judges the discretion to shape liability however they want? Common law and civil law doctrine have both criticized directness. Civil law critics have said that whether it’s direct depends on a judge’s feeling.  However, foreseeability is also a flexible test. The jurisprudence that followed Wagon Mound 1 is inconsistent. What exactly must be foreseen?  It appears to be sufficient to prove that the plaintiff suffered a kind of damage that was foreseeable—it doesn’t matter if you didn’t foresee the manner in which the damage arose.

Hughes v. Lord Advocate, [1963] A.C. 837 (H.L.). (CB2p151) Jurisdiction England Facts Two telephone workers took a tea break, leaving four paraffin lamps around their tent over an open manhole. Two boys, aged eight and ten, took one of the paraffin lamps and went to explore the manhole. They dropped the lamp into the manhole; some paraffin leaked from it, causing an explosion which badly burned one of the boys. Issues Was the telephone workers’ fault in leaving the manhole and lamps unattended the cause of the boy’s injury? Holding Yes. Ratio “…a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.” In this case, although the manner (the explosion) was not foreseeable, the kind of injury (burns) were a foreseeable consequence of the workers’ fault.

 However, courts have also used the specificity of damage in a restrictive way. In the case of Tremain v. Pike (1969), a farm employee contracted Weil’s disease—a disease spread by rats’ urine—during

an infestation of rats at the farm. The court held that damage from rats was foreseeable in general, but that Weil’s disease was too rare to be foreseeable.  Whether the test is directness or foreseeability, legal causation is basically a matter of value judgments, informed by common sense and policy considerations.  In Palsgraf, Andrews J. acknowledged that legal causation was a question of “practical politics.”  Civil law courts, however, will never admit that policy is part of the directness test—although doctrinal writers agree that courts make policy decisions.

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 Civil law uses the story of “Pothier’s cow” to illustrate the difference between causation in fact and causation in law.  The directness test appears to be objective, in principle.  The foreseeability test has objective and subjective elements:  objective: whether a reasonable person would have foreseen the general type of damage that could occur  subjective: whether the defendant could have reasonably foreseen the specific damage that did occur.  The directness test for causation can be expressed in terms of various theories:  causa sine qua non (but-for test)  reasonable foreseeability  adequate causation (causes likely to cause the injury in the normal course of events)  However, these theories have only had a small impact on courts’ decisions in practice.

Starck, Roland, & Boyer, Obligations: Responsabilité délictuelle (France, 1995) (CB2p135)  The authors say that causation is empirical and intuitive, and that there is no general definition of causation in the law.  They quote Paul Esmein, who writes that judges decide causation according to their “feelings.”  They tell the story of Pothier’s cow, the moral of which is that causation must be direct. However, they note that the law has no definition of what is direct.  They summarize a number of cases where direct causation was found, and a number where direct causation was not found, to show how arbitrary the decisions can be.  The fact that the victim might have been predisposed to injury does not mitigate the causal link: all that matters is that the defendant put the person into the state they’re in now.  The seriousness of the defendant’s fault appears to influence whether the judge finds direct causation—but the jurisprudence does not do this systematically.

Morrissette c. McQuat & Sons, [1958] B.R. 684. (CB2p147) Jurisdiction Quebec Facts McQuat had a storage building where people loaded and unloaded tanks of propane. Sticking out of each side of the concrete platform was an iron spike about 10 inches long, used as a doorstop. Morrissette was loading propane cylinders into his truck, and tying them together with a chain, when the chain broke, and he was propelled backwards where he impaled himself on one of the iron spikes. (Surprisingly, the long- term damage from this was minor.) Issues Was the presence of the spike the direct cause of the injury? Holding No. Ratio Bissonnette J held that for a thing to be the direct cause of an injury, it had to play an “active” role. In this case, the breaking of the chain was the direct cause, and the spike was indirect. Comments It doesn’t seem to make sense that the court didn’t use “plurality of causes” and apportionment. Prof. Khoury gave us this case to read in order to critique it—not to state the law.

 In the common law doctrine of foreseeability, there’s also the question of whether the injury was a probable result or a possible result.  In Wagon Mound 1, the court required that the injury be a probable result (i.e., >50%).  In Wagon Mound 2, the court changed its mind and said that it would be enough to be a possible result.  The civil law courts have also used foreseeability, but usually as a second step.

Brisson c. Potvin, [1948] B.R. 38. (CB2p140) Jurisdiction Quebec Facts Potvin parked his truck so that it blocked the sidewalk on one side of a narrow street in Chicoutimi. Pedestrians had to walk on the street to get around it. A six-year-old girl was hit by a car while walking around the truck. Issues Was Potvin’s fault in parking his truck like this the cause of the girl’s injury? Holding No. Ratio Pratte J began by saying that causation is a difficult concept. He said that causation is only direct if the injury is the “logical consequence” of a fault. And he says that a the logical consequence of an act or omission is that which is “normally foreseeable.” (It therefore seems to follow that that which is foreseeable is direct!) Pratte J went on to say that if, between a fault and an injury, another fault is committed by a third party, which is “normally unforeseeable” by the first wrongdoer, this fault prevents the first wrongdoer from being the cause of the injury. In this case, although Potvin could have foreseen the carelessness of a child, he not have foreseen that there would be children in this particular street (!). St-Germain J, dissented on Pratte J’s factual assumptions. He said that all kinds of people could be expected to walk down the street. St-Germain J reserved his use of foreseeability for his determination of fault: He said that it was not necessary to find that Potvin had to have foreseen that the accident; it was enough to find that he could have foreseen the accident. St-Germain decided causation on the basis of the but-for test. Comments Pratte J’s opinion does not represent mainstream civil law. Note that the different judges’ opinions in Brisson line up with the opinions described in the Starck piece

 Civil law courts sometimes express opposition to using reasonable foreseeability to assess causation.  In Joly c. Ferme Ré-Mi, [1974] C.A. 523, Kaufman J used foreseeability, and Gagnon J protested, seeing this as an import from common law.  However, the historical origins of the foreseeability test are uncertain.  Note, however, that the Caneric case explicitly introduced a foreseeability requirement.

Conaghan and Mansell, The Wrongs of Tort, pp.62-72. (causation)  Conaghan and Mansell find the foreseeability test “shamefully unpredictable.” They contrast the results of Bradford v. Robinson Rentals (1967) with the results in Tremain v. Pike. In the former case, an employer’s fault in forcing his employee to drive in an unheated truck was held to have caused the employee’s frostbite.  The Wagon Mound 1 rule that the damage must be of a kind that was reasonably foreseeable conflicts with the “thin skull rule” of Smith v. Leech Brain & Co.  In terms of the means by which the harm is caused, Hughes v. Lord Advocate is the leading case. But this can be contrasted with Doughty v. Turner Manufacturing Co. Ltd. (1964), where a worker dealing with a cauldron of sodium cyanide was burned as a result of an unforeseeable kind of chemical explosion. Because the kind of explosion was unforeseeable, he lost.  In the case of Lamb v. Camden London Borough Council, Watkin LJ said that remoteness often depended on a judge’s “instinctive feeling.”  Many tort law textbooks try to portray these areas of the law in terms of clear rules when they are in fact very unclear.

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 thin skulls: disproportionate injury due to individual susceptibilities  Civil law gives priority to compensation.  Common law also gives priority to compensation: You must take the victim as you find him.  This contradicts the rule of foreseeability, both in its Wagon Mound 1 and Hughes versions. (Hughes, while allowing a broad range of foreseeability, still requires foreseeability—the thin skull rule doesn’t.)  Foreseeability and fault also matter.

Smith v. Leech Brain & Co. Ltd., [1962] 2 Q.B. 405 (Q.B.D.). (CB2p153) Jurisdiction England Facts Smith operated galvanizing equipment at Leech Brain. The company only provided a kind of makeshift shelter to protect operators from splashes. Smith was accidentally burned on the lip by a piece of molten metal. The burn was not treated; it ulcerated and developed into cancer which killed Smith. However, long before this, Smith had worked in the gas industry, where he had been exposed to carcinogens. He probably had a pre-malignant condition of which the burn was the “promoting agency.” Issues Was the cancer (and the death) caused in part by the burn? Holding Yes. Ratio Lord Parker CJ noted that Wagon Mound 1 conflicted with the thin skull rule. But he held that the court in Wagon Mound 1 had not had the thin skull rule in mind, so he made an exception, and found the employers liable. The thin skull rule trumps foreseeability for causation. However, when assessing damages, the court discounted damages for the cancer which would have occurred anyway, and awarded damages for the burn, and for having died earlier.

 If a pre-existing susceptibility has already manifested itself before the accident, courts will try to hold the defendant liable only for aggravating the injury.  Common law calls these “crumbling skull” cases.  This is a direct application of the restitutio in integrum principle: we don’t want to enrich the victim.  Courts can assess the probability that something else would have caused the same injury.

G. Viney, Les conditions de la responsabilité (1998) (CB2p154)  French jurisprudence generally makes the same distinction: Pre-existing conditions do not exonerate the wrongdoer. However, they may reduce damages when the accident did not “realize or provoke” the affliction (i.e., “crumbling skulls”).  A pre-existing condition may also be used to reduce compensation if it was the result of a separate fault committed against the plaintiff.  Viney agrees with these principles; she thinks it would be dangerous to allow insurance companies to argue that their clients should not have to pay because the victim was abnormally fragile. This would essentially force the weak to suffer the consequences of their weakness. Multiple Wrongdoers and Multiple Causes  Now that we’ve assessed causation, and we are left with multiple faults, what do we do?  If the causes and injuries can be divided, liability will be divided.  If the causes and injuries can’t be divided, There are several possibilities:  joint fault  contributive faults  distinct and simultaneous (e.g., Cook v. Lewis)  distinct and successive (e.g., Caneric)

Plurality of Established Causes  A general principle in both systems is that a defendant need not have caused the entire injury in order to be liable for it.  There are three ways of dividing liability in cases of cumulative causes: 1. solidarity (civil law) / joint and several liability (common law) 2. “apportionment” or “division” of liability 3. holding only the second defendant (or rather, the second event) liable.  solidarity (civil law) / joint and several liability (common law):  In this scheme, the plaintiff can recover damages from either defendant.  This maximizes the plaintiff’s chances of actually getting her money.  The defendant who pays can then demand reimbursement (usually 50%) from the other defendant.  In civil law, solidarity is found in (a.1526).  Solidarity applies in principle to distinct and successive contributive faults that cause one single injury.  It also applies to joint faults that cause one single injury.  Defendants may be assigned different shares of the solidary liability on the basis of the relative seriousness of their faults (a.1478).  Common law has basically the same rules, derived from statute.

Deguire Avenue Ltd. v. Adler, [1963] B.R. 101. (CB2p158) Jurisdiction Quebec Facts Adler was the manager of Deguire’s apartment building, although he posed as owner. Painters, personally employed by Adler, came to paint a vacant apartment. In the course of their work, they disconnected the oven from its gas supply, and turned off the supply in the basement. They did not reconnect the oven when they left. A few weeks later, Deguire’s janitors, working on the gas supply in the basement, accidentally turned on the gas for the vacant apartment. A few hours later, the same janitors went into the vacant apartment to show it to prospective tenants. They noticed it was filled up with gas, and tried to dissipate it. About 15 minutes later, the gas exploded (what sparked the explosion is unknown). Issues Was the fault of the painters too distant to be considered a cause of the explosion? Holding No. Ratio The fault of the painters was “continuous” with the fault of the janitors. These were distinct and successive contributive faults. Both Adler (as the painters’ employer) and Deguire (as the janitors’ employer) could be held solidarily liable. (The immediate cause of the explosion was ignored by the court because of a lack of evidence.) Owen J, dissenting, thought that the painters’ act was not determinative in causing the injury—thus he held that there was no causation. Comments

Caneric Properties Inc. v. Allstate, [1995] R.R.A. 296. (CB2p166) Jurisdiction Quebec Facts Caneric owned a building in Old Montreal which was slated for demolition. During the winter, Caneric did not heat the building or turn off the water. A pipe burst, leaking into the basement of the neighbouring hardware store. The hardware store owner asked Globensky, the last occupant of the building, to contact the city and have them turn off the water. The city engineers came; they turned off the water for part of the building, but before they could finish, their shift ended. The next shift of engineers came an hour and a half later. They did not see Globensky, who was waiting inside, so they left. Caneric did nothing for the next six days. Then the weather got colder and another pipe burst, which completely flooded the neighbour’s basement. Issues Did the fault of both the city and Caneric cause the damage? Holding Yes.

Ratio Baudouin J held that there were three faults: 1. Caneric’s fault in not securing its building for the winter 2. the second team of city engineers’ fault in leaving without fixing the problem 3. Caneric’s fault in doing nothing for the next six days He said that civil law jurisprudence generally asks first whether the injury was a “direct, logical and immediate” consequence of the fault (adequate causation), and then second whether the author of the fault could have reasonable foreseen the injury. He found that the second and third faults were determinative; the first fault, although logically connected to the injury, was too distant in time to be considered a direct cause of the injury. He therefore held the city and Caneric to be solidarily liable, with each having a 50% share. Comments The judge must decide whether one fault will cancel the other and be held as the sole cause.

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 “apportionment” or “division” of liability:  If the injury is divisible (two separate injuries), each defendant is liable for the injury she caused (in both systems).  This is also used when the second injury aggravated the first one.  Solidarity is considered to be unfair to the defendants (at least to the solvent one).  The apportionment of liability depends only on the causal role of the two faults, not on the severity of the faults. (Note that (a.1478) is only for single, indivisible injuries.).  Common law uses the same approach, although statutes often modify it.

Coutellier v. Hervieux, [1974] C.S. 240. (CB2p169) Jurisdiction Quebec Facts Hervieux’s car was struck from behind by Johnston’s car. Hervieux lost consciousness, and his car stopped on the highway. Two minutes later, Lavoie crashed into Hervieux’s car. Vallée, one of Hervieux’s passengers, was seriously injured through all of this. But because no one had examined her between the two collisions, it was impossible to know how much of her injury had been caused by the first collision and how much by the second. Issues Could Johnston and Lavoie be held solidarily liable? Holding No. Ratio Mayrand J held that these were two separate faults, causing two separate injuries. One fault aggravated the injury caused by the other. Solidarity should not be allowed just because the faults happened close together in time. He divided liability 50-50. Mayrand J made a distinction between cases where the combination of two delicts causes one injury, and cases where two simultaneous delicts cause two injuries to the same victim. He held this to be a case of the latter, even though he admitted that it might be impossible to determine which parts of the injury to attribute to each fault. Comments This is a tricky case; one could also argue that the faults were cumulative.

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 Novus actus interveniens: If two or more faults caused the same injury, but they did not occur at the same time, the author of the first fault may argue that the second fault broke the chain of causation.  This is rarely used in either system.  However, courts may accept it when the second fault is more serious than the first fault (especially if it is intentional or criminal). Usually, the more culpable the intervening (second) act, the less foreseeable it is for the first defendant.

 However, in common law, this use of novus actus interveniens is limited by the concept of risk: If the act of the first defendant creates an unreasonable risk of an intentional or criminal act by someone else, then novus actus interveniens can’t be used (if the second fault was “the very thing likely to happen” as the result of the first fault)  This is based on the idea of foreseeability: if you create a risk, the the second defendant’s fault is more foreseeable.  So, the factors to consider are severity of fault, creation of risk, and foreseeability.

Q. v. Minto Management Ltd. (1985), 15 DLR (4th) 581 (Ont. H.C.). (CB2p157) Jurisdiction Ontario Facts Q. was raped in her apartment by Halliday, an employee of her landlord (Minto). Halliday had broken into Q’s apartment using a master key. Three months earlier, another woman in the same complex had been raped. Halliday was subsequently convicted for both rapes. The landlord knew about the earlier rape, but did nothing in the meantime to warn tenants or to control the use of master keys. Issues Was Halliday’s action so remote from Minto’s fault as to constitute a novus actus intervieniens? Holding No. Ratio Gray J excluded the possibility of novus actus interveniens on the grounds of creation of risk. He cited Haynes v. Harwood, a British case from 1935, where Greer LJ wrote, “If what is relied upon as novus actus intervieniens is the very kind of thing which is likely to happen if the want to care which is alleged takes place, the principle embodied in the maxim is no defence.”

 In common law, medical negligence (but not non-faulty “medical error”) breaks the chain of causation, according to the Ontario Court of Appeal in Mercer v. Gray (1941).  This is based on policy reasons, favouring compensation, allowing the plaintiff to recover from the hospital (deep pockets).  This rule has been criticized in common law:  for policy reasons: In practice, it’s actually hard to recover for medical negligence in common law, so this rule doesn’t necessarily favour the plaintiff.  for theoretical reasons: Why should medical faults be treated differently?  However, if both defendants are doctors, this rule doesn’t seem to apply:

Price v. Milawski (1977), 82 DLR (3d) 130 (Ont.C.A.). (CB2p183) Jurisdiction Ontario Facts Price broke his ankle playing soccer. He went to an emergency room, where he was examined by Dr. Murray. Dr. Murray accidentally told the radiologists to x-ray Price’s foot rather than his ankle. So Dr. Murray did not see the fracture, and treated Price for a sprained ankle. When the pain and swelling persisted, Price went to see Dr. Carbin, an orthopedic surgeon. Dr. Carbin did not even look at the x-rays but simply telephoned the hospital and was told that the results were negative. As a result, Dr. Carbin diagnosed Price with a strained ligament. Eventually Price went to another doctor who ordered new x-rays, discovered the fracture, and put the ankle in a cast, but Price was permanently disabled as a result. Issues Did Dr. Carbin’s fault break the chain of causation from Dr. Murray’s fault? Holding No. (Both were held jointly and severally liable.) Ratio Arnup JA does not appear to have given any special weight to the fact that Murray and Carbin were doctors. He looked at the case in terms of foreseeability, and held that it was reasonably foreseeable for Dr. Murray that his error would mislead other doctors who would treat Price. He stated a rule: “…a person doing a negligent act may, in circumstances lending themselves to that conclusion, be held liable for future damages arising in part from the subsequent negligent act of another, and in part from his own negligence, where such subsequent negligence and consequent damage were reasonably foreseeable as a possible result of his own negligence.” This decision

qualified Mercer v. Gray for policy reasons. The court wanted to make doctors responsible for the effects of their negligence on subsequent diagnoses. Comments Interesting reasoning in this case—analysis of evolution of reasonable foreseeability test.

 If the second cause was not a non-faulty medical error, this would be a difficult case for novus actus interveniens in common law.  Novus actus interveniens has been a complex issue in common law, but hasn’t been discussed so much in civil law. Civil law has usually just used the criterion of the gravity of the faults.

Subsequent Events and Aggravation of Injuries  In cases where indivisible damage is caused by two unrelated events, one faulty and one innocent, is it fair to hold the faulty defendant liable for the entire injury?  There are three possibilities:  The defendant could be held liable for the whole injury, regardless of the non-faulty event.  The defendant could still be held liable, but with damages discounted for the non-faulty event.  If the non-faulty event occurred later, it could be considered a novus actus interveniens.  In both systems, at the causation stage, the defendant can generally be held to have caused the entire indivisible damage, even if a non-faulty event was also involved.  In common law, if you “materially contributed” to the production of the damage, you are held to have caused all of it.  “Material contribution” is a common law term only; it means more than a de minimis, mininal, negligible contribution.  Civil law says that as long as your contribution is not negligible, you can be held liable.  However, at the assessment of damages stage, damages can be discounted for the contribution of non-faulty events.  At this point, unlike with causation, the burden of proof is on the defendant.  This is based on the principle that the plaintiff should not be enriched by the damages, just restored to his previous position. Courts therefore ask what position the defendant would have been in if the fault had not occurred.  There are two main scenarios, depending on whether the fault or non-faulty event comes first.  Scenario 1: If the non-faulty event precedes the fault:  The above rules apply; in this case, it is consistent with the thin-skull rule.

Athey v. Leonati, [1996] 3 SCR 458. (CB2p171) Jurisdiction British Columbia Facts Athey was an auto mechanic who had a history of minor back problems. He was hurt in a car accident, which caused back pain and stiffness. A few months later, he was on his way to recovery when he was hurt in another car accident, again causing minor injuries. He underwent further physiotherapy and chiropractic treatments, and was again recovering, when, while stretching, he suffered a disc herniation. He was no longer able to do any heavy physical work and he had to take a lower-paying job. Issues Could the some of the liability be discounted due to Athey’s pre-existing back problems? Holding No. Ratio Major J wrote, “It has long been established that a defendant is liable for any injuries caused or contributed to by his or her negligence. If the defendant’s conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant’s liability.” Otherwise, “If the law permitted apportionment between tortious causes and non- tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant’s negligence was the sole cause of the injuries…Defendants could frequently and easily identify non-tortious contributing causes, so plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury.”

Note: The two car accidents were considered as one accident for legal purposes— there was no attempt to separate these causes. Note: The stretching at the gym was held to be perfectly normal, so it wasn’t considered in the analysis. Comments The trial judge had found that the accidents contributed 25% of the injury. Why didn’t the SCC then follow the trial judge in discounting the damages by 75%? Major J says that if there had been evidence that the disc herniation would have happened even without the car accidents, he might have done this. But there was no way to determine whether the disc herniation would have happened anyway. This seems to confirm the principle that the court assesses what the plaintiff’s life would have been like without the accident. In England, courts have started to argue that it is unfair to the defendant not to discount damages in such cases, but this is still the common law in Canada.

 Scenario 2: If the fault precedes the non-faulty event:  The difference between this scenario and the first one is that the non-faulty event could be held to be a novus actus interveniens, but this is rare.  In both systems, if the fault has allowed the non-faulty event to occur, then the non-faulty event cannot be a novus actus interveniens.  Baudouin J says that any event that was foreseeable, connected or preventable cannot be a novus actus interveniens.  In common law (and French civil law), a non-faulty event can be considered a novus actus interveniens if it was not reasonably foreseeable and thus could not have been prevented.  In (Quebec) civil law, a force majeure breaks the chain of causation.  (a.1470) says that a force majeure must be unforeseeable and irresistible.  However, both systems of course consider the non-faulty event at the stage of assessing damages.

Jobling v. Associated Dairies Ltd., [1981] 2 All ER 752 (H.L.). (CB2p180) Jurisdiction England Facts While working for Associated Dairies (and as a result of their negligence), Jobling slipped a disc. After this, he was only capable of light work. Three years later, Jobling was diagnosed with cervical myelopathy, unrelated to the accident, which made him incapable of working at all. Issues Did Associated Dairies have to keep paying damages for Jobling’s partial incapacity, now that he was suffering from a total incapacity? Holding No. Ratio Lord Keith of Kinkel distinguished this case from other cases involving two tortious acts. In a case like this one, he said, courts should consider the “vicissitudes” principle, i.e., they should take other accidents and vicissitudes of life into account when assessing damages. However, he said that the vicissitudes principle should only be used in cases where supervening events either reduce the disabilities flowing from the accident or shorten the period during which they will be suffered. “In the case of supervening illness, it is appropriate to keep in view that this is one of the ordinary vicissitudes of life, and when one is comparing the situation resulting from the accident with the situation, had there been no accident, to recognize that the illness would have overtaken the plaintiff in any event, so that it cannot be disregarded in arriving at proper compensation, and no more than proper compensation.” Comments Jobling is the leading case on the calculation of damages resulting from a faulty cause and a non-faulty cause. Khoury thinks this could have been a good case for novus actus interveniens, since the disease was unforeseeable by defendants, but they didn’t argue it. So the court just used the disease to discout damages. (I think the confusion is due to the fact that the injury wasn’t really indivisible: one could separate the three years where Jobling was able to do light work; there could be

apportionment of liability?)

4/4/03 Placing the Victim Under Scrutiny  In civil law, this issue is part of causation.  In common law, this is a “defence” available to the defendant.  For a long time, common law considered the plaintiff’s fault to be a complete defence. Even if the the plaintiff’s fault was relatively small, one could not recover at all.  In Butterfield v. Forrester (1807), the defendant had obstructed a street with a pole. The plaintiff was riding his horse down the street, fast, and collided with the pole. The court held that if the plaintiff hadn’t been riding so fast, he wouldn’t have gotten hurt.  Note how even common law seems to use ideas of causation here!  This rule had an individualistic basis. The ideas was that if the plaintiff was at fault, he did not deserve compensation.  At this time, common law courts had to choose only one cause of the damage—multiple causes were not recognized.  In the 20th century, common law acknowledged that this position was unfair, and the legislatures (England and Canadian provinces) adopted Contributory Negligence Acts.  This was due to the influence of civil law.  This was also due to the role of insurance: defendants are more often insured than plaintiffs.  Common law approaches this issue in two steps (s.3 of Ontario’s Contributory Negligence Act):  1. assess the entire amount of damages  2. separate  Civil law never had a problem accepting apportionment of liability between defendant and plaintiff.  The CCQ calls this “faute commune” (a.1478 al.2).  Prof. Khoury doesn’t like this term, because it appears to imply that the two faults were part of the same act or event.  If the plaintiff is at fault, there are two options:  1. apportionment  2. novus actus interveniens  (“voluntary assumption of risk” is also an option, but it doesn’t fit with the others, because it doesn’t necessarily involve fault on the part of the plaintiff.)  apportionment: This means apportioning liability between the plaintiff and the defendant, just as one would apportion liability between two defendants.  The victim’s fault is assessed the same way a defendant’s fault would be: the reasonable person standard is applied (and common law of course also uses the B/P/L analysis).  Courts are lenient with regard to victims’ behaviour in emergency situations.  Causation must be proven.  The classic example of fault without causation (in a jurisdiction without a no-fault auto insurance scheme) would be if the victim of a car crash (not at fault) was driving without a licence. This would not reduce the liability of the defendant who caused the crash.  Liability is apportioned the same way it would be apportioned between two defendants: according to the seriousness of the fault.  This is confirmed by (a.1478) as well as Contributory Negligence Acts.  Ontario’s Contributory Negligence Act provides for a 50-50 split in cases where one is not able to assess the seriousness of the fault.  This is a purely factual question.  Courts apportion damages according to the seriousness of the fault rather than causation because causation is too hard to assess.  Baudouin disagrees with this position, and thinks that courts should use causation, because assessments of fault are even more arbitrary.

 Baudouin thinks that courts don’t consider causation seriously enough, partly because it does not play a role in the apportionment of damages. He thinks that courts should at least assess causation seriously when finding whether or not there is liability.  When there is more than one defendant, the defendants will be held solidarily (or jointly and severally) liable, and the plaintiff will also be held liable.

Fitzgerald v. Lane, [1998] 2 All ER 961 (H.L.). (CB2p190) Jurisdiction England Facts Fitzgerald was crossing the street against the lights. He was hit by one car and thrown into the path of another car. Both cars were speeding. Fitzgerald was paralyzed. Issues Could liability be apportioned between Fitzgerald and the two drivers? Holding No. Ratio The High Court judge had erred in finding that Fitzgerald and the two drivers were equally responsible, and that each should thus be responsible for one-third (Fitzgerald recovering two-thirds of the total damages). Lord Ackner said that “Apportionment of liability in a case of contributory negligence between plaintiff and defendants must be kept separate from apportionment of contribution between the defendants inter se.”  First, the judge must determine whether the defendants are liable;  second, the judge must assess damages;  third, the judge must decide whether the plaintiff contributed to the damage;  and fourth, the judge must decide to what extent the damages should be reduced in order to account for the plaintiff’s “share.”  In this last stage, the plaintiff’s conduct must be compared to the totality of the defendants’ tortious conduct. These can’t be all lumped together as one. Using this procedure, Lord Ackner

 This case was affirmed by the SCC in Ingles v. Tutkaluk (2002) for Canadian common law.  It also seems consistent with civil law principles: Prof. Khoury thinks one could plead this for civil law.  When there is one defendant, but more than one plaintiff:  This tends to arise in cases where a child is the plaintiff, so both child and parents suing, as in Gaudet c. Lagacé (see p.Gaudet c. Lagacé, [1998] R.J.Q. 1035 (C.A.). (CB1p371)22).  The damages awarded to the victime par ricochet are discounted at the same rate as the immediate victim’s claim.  This is based on the assumption that victime par ricochet will not sue the immediate victim (usually a safe assumption when the immediate victim is a child).  novus actus intervieniens:  Sometimes the victim’s fault will constitute a novus actus interveniens and completely exonerate the defendant, but this is rare.  This depends on the usual considerations: fault, causation, etc.

Girard c. Hydro-Québec, [1987] R.R.A. 80 (C.A.). (CB2p186) Jurisdiction Quebec Facts Girard saw that a short circuit had set fire to a hydro pole, leaving a wire hanging dangerously low (about 8 feet) over a low-traffic country road. He went to a store and phoned Hydro-Québec to warn them. On his way back, he saw that the wire had dropped even further, and was now hanging four or five feet above the road. He parked his car and tied a plastic bag to the wire so that drivers would see it. As he was returning to his car, the wire moved and touched him and he was seriously injured by electrocution. Issues Was Girard’s fault serious enough to constitute a novus actus interveniens? Holding Yes

Ratio L’Heureux-Dubé JA held that Girard’s fault was so great as to be the only effective cause of the injury. Although Hydro-Québec’s fault had a role, it was insignificant. The chain of causation was broken.

11/4/03

 voluntary assumption of risk: This means that the victim acted in such a way as to accept the risk of suffering an injury.  In common law this is called “VAR,” “volenti non fit injuria,” or simply “volenti.”  in civil law, this is called “acceptation des risques.”  In early 20th century common law, volenti was a very broad defence. When courts found it, it was a complete bar to recovery.  Now, it is not necessarily a complete defence; it could lead to apportionment. This parallels the newly-allowed apportionment that for contributory negligence.  Mere knowledge of a risk is not enough. The risk must have been accepted. (See Waldick v. Malcolm, p.17)  The courts have become more and more restrictive in their application of volenti. Crocker v. Sundance is an excellent example. (See p.40)  For volenti to work, the plaintiff must have assumed both the physical and legal risks.  The physical risk means the actual danger of injury.  The legal risk means waiving one’s rights to sue.  This is hard to prove unless the plaintiff has signed something.  Historically, many cases were about drunk drivers and their passengers. (During a time when there was no specific regime for auto accidents.) In most of these cases, the passenger was also drunk, so it was difficult for the courts to find volenti. Volenti can really only apply to drunk driving cases when the passenger and driver jointly planned out their reckless adventure while still sober.  Civil law has always considered “acceptation des risques” (at least since the 19th century). For this to apply, civil law requires: 1. knowledge of danger or risk (implicit or explicit)  This is an objective test: if a normal person would have known of the danger, the plaintiff should have known.  Prof. Khoury thinks this is the same as in common law. 2. free and informed acceptance of the risk  Civil law doesn’t separate the physical and legal aspects, but of course both are relevant.  The legal aspect would be complicated by (a.1474 al.2): One can’t exclude liability for bodily or moral injury.  “Acceptation des risques” is not a complete defence; it leads to apportionment.  Some jurists think acceptation des risques should exonerate the defendant altogether.  Voluntary assumption of risk is not argued very much in either system, because it’s easier to prove fault or contributory negligence than voluntary assumption of risk, and both can lead to apportionment. EXAM REVIEW  Last term was about attributing liability. This term is about limitations and restrictions on liability:  duty of care (common law)  omissions  indirect victims: PEL, psych injury  Civil law does not have a direct equivalent, but it expresses many of the same ideas under causation  legal causation (also called “remoteness” in common law)  directness v. foreseeability  thin skull as an exception  plurality of causes  victim’s fault/assumption of risk  The common law treats these as “defences,” while in civil law, these are part of causation.

STUDY PLAN tonight consolidate notes from study group look at Apr 2002 MacWendy answer and consolidate notes tomorrow continue developing checklists (transsystemic) do Apr 2000 (mushroom) practice question and look at answer go through Khoury’s review slides. look at course objectives as guide to studying do Apr 2001 exam practice question use OSBORNE!!!! for: “balancing” approach to fault

1458: contractual and extra-contractual damages avoid the issue duty to warn, duty to inform outside of contractual situation voluntary assumption of risk medical liability does Andrews trilogy limit damages in civil law too? maybe: no, for how to assess, but yes, for limit Cooper v. Hobart; compare Cooper to Caparo

The first is the very broad question (covering whole term and some of last term): 1) How does the law limit liability?

And four slightly more focused questions: 2) Discuss reasonable foreseeability as a limiting concept? 3) Is duty of care 'relational' or 'prescriptive'? 4) How has common law influenced civil law, and vice versa? 5) Policy vs. law as limiting tool?

INFORMATION ON EXAM

. Two questions, one practical, the other theoretical . Some element of choice in the question(s) . Could contain citations in French or English (please, bring your English\French dictionary). Sufficient reading time will be allocated. . Questions could require a transsystemic approach . Both terms are subject to exam, but a greater emphasis is put on the second term

ALLOCATION OF POINTS FOR FINAL GRADE

1. You have done better in your December exam but have not written the essay

20% December exam 80% April exam

2. You have done better in your December exam and have done the essay

20% December exam 20% Essay 60% April exam

3. You have done better in the April exam but have not done the essay

100% April exam

4. You have done better in the April exam and have done the essay

20% Essay 80% April Exam

INSTRUCTIONS

. Read carefully the question before thinking about the answer. Structure your thoughts before writing them down; . Answers are assessed not only for their substantive content, but also for their coherence, logic, structure, clarity and for the quality of language; . Do NOT forget to justify your answers with the legislative, jurisprudential and doctrinal authorities studied during the year; . If you must take facts for granted, please indicate them clearly; . Please, write your answers with a blue or black pen.