LAWG 100D: EXTRA-‐CONTRACTUAL OBLIGATIONS/TORTS COURSE SUMMARY | WINTER 2014 DELIMITING THE SPHERE OF THE EXTRA-‐CONTRACTUAL OBLIGATION ..................................................................... 2 1. INTRODUCTION TO INJURY .................................................................................................................................................................................. 2 Jim Russell c. Hite, [1986] R.J.Q. 1610 (C.A.) ............................................................................................................................................... 2 Ouellette c. Tardif, [2000] R.J.Q. 1386 (C.A.) .............................................................................................................................................. 2 Augustus c. Gosset, [1996] 3 S.C.R. ................................................................................................................................................................. 3 Chamallas & Wriggins, The Measure of Injury: Race, Gender and Tort Law .............................................................................. 4 Parker v. Richards, 1990 485 (BC SC) .......................................................................................................................................................... 4 2. CAPS TO NON-‐PECUNIARY DAMAGES ............................................................................................................................................................... 5 Ter Neuzen v. Korn, [1995] 3 S.C.R. ............................................................................................................................................................... 5 Curateur c. Sne de l’Hôpital St-‐Ferdinand, [1995] 3 S.C.R. .................................................................................................................. 6 3. WRONGFUL LIFE, BIRTH AND CONCEPTION .................................................................................................................................................... 7 MacKay v. Essex Area Health Authority, [1982] 2 W.L.R. 899 (CA) ................................................................................................. 7 McFarlane v. Tayside Health Board, [1999] 4 All ER 961 ................................................................................................................... 7 Cooke c. Suite, [1995] R.J.Q. 2765 (CA) ......................................................................................................................................................... 8 4. INTRODUCTION TO “DUTY OF CARE” AND “CAUSATION IN LAW” ............................................................................................................... 9 Palsgraf v. Long Island Railway Co., 248 N.Y. 339 .................................................................................................................................. 9 5. THE CONCEPT OF “DUTY OF CARE” ............................................................................................................................................................... 10 Home Office v. Dorset Yacht Co. Ltd. [1970] AC 1004 .......................................................................................................................... 10 Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 .................................................................................................................... 10 6. “RELATIONAL HARM”: SECONDARY VICTIMS .............................................................................................................................................. 12 Article 1056 CCLC ................................................................................................................................................................................................ 12 Shauna Van Praagh, “Who Lost What? Relationship and Relational Loss” .............................................................................. 12 Alcock v. Chief Constable, [1991] 4 All ER 906 (H.L.) .......................................................................................................................... 14 7. “RELATIONAL HARM”: “PURE” ECONOMIC LOSS ........................................................................................................................................ 15 Elliot c. Entreprises Côte-‐Nord Ltée, [1976] C.A. 584 .......................................................................................................................... 15 Weller v. Foot and Mouth Disease Research Institute, [1996] 1 Q.B. 569 ................................................................................... 15 8. DUTIES TO BENEFIT/RESCUE ......................................................................................................................................................................... 16 W. Van Gerven et al., Tort Law: Scope of Protection (Oxford: Hart Publishing, 1999) at 78 ............................................. 16 Nicholas Kasirer, “Agapè” (2001) 3 RIDC 575 ........................................................................................................................................ 17 Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 .................................................................................................................... 17 Crocker v. Sundance Northwest Resorts, [1988] 1 S.C.R. 1188 ........................................................................................................ 17 DEFINING THE SCOPE OF CIVIL LIABILITY ............................................................................................................................ 19 9. REVISITING THE CAUSAL CONNECTION: DIRECTNESS AND FORESEEABILITY ....................................................................................... 19 Peter Cane & Patrick Atiyah, Atiyah’s Accidents, Compensation and the Law (Cambridge: 2013) at 118-‐29. ......... 19 Overseas Tankship (UK) v. Morts Dock & Engineering (Wagon Mound No. 1) [1961] AC 388 ......................................... 20 Brisson c. Potvin, [1948] B.R. 38 ................................................................................................................................................................... 20 MORRISETTE V. T. MCQUAT & SONS, [1958] B.R. 684 .................................................................................................................................. 21 Joly c. Ferme Ré-‐Mi Inc., [1974] C.A. 523 ................................................................................................................................................... 22 Hughes v. Lord Advocate, [1963] AC 837 (HL) ....................................................................................................................................... 22 10. PUBLIC AUTHORITIES .................................................................................................................................................................................... 23 Williams v. Ontario, 2009 ONCA 378 .......................................................................................................................................................... 23 11. MULTIPLE WRONGDOERS AND MULTIPLE CAUSES .................................................................................................................................. 23 Deguire Avenue Ltd. c. Adler, [1963] B.R. 101 ........................................................................................................................................ 23 Q. v. Minto Management (1985) 15 DLR (4th) 581 (Ont HC) .......................................................................................................... 24 Caneric Properties Inc. c. Allstate Compagnie d’Assurance et Ville de Montréal, [1995] RRA 296 (CA) ...................... 25 12. PLACING THE VICTIM UNDER SCRUTINY: THE PREDISPOSITION OF THE VICTIM ............................................................................... 26 Smith v. Leech Brain & Co Ltd. [1962] 2 QB 405 (QBD) ..................................................................................................................... 26 Marconato v. Franklin, [1976] 6 WWR 676 ............................................................................................................................................. 26 Corr v. IBC Vehicles, [2006] EWCA Civ 311 .............................................................................................................................................. 27
MATTHEW CHUNG
MATTHEW CHUNG | 1 13. PLACING THE VICTIM UNDER SCRUTINY: THE BEHAVIOUR OF THE VICTIM ....................................................................................... 28 Girard c. Hydro-‐Québec, [1987] RRA 80 (CA) ......................................................................................................................................... 28 CONCLUSIONS .................................................................................................................................................................................. 28 14. REFLECTIONS ON THE ROLE AND NATURE OF EXTRA-‐CONTRACTUAL OBLIGATIONS/TORTS ........................................................ 28
MATTHEW CHUNG | 2 DELIMITING THE SPHERE OF THE EXTRA-‐CONTRACTUAL OBLIGATION 1. Introduction to Injury Jim Russell c. Hite, [1986] R.J.Q. 1610 (C.A.) Facts • The owner of a raceway installed a chain fence around a pit stop in order to prevent unauthorised access. One day, Hite turned off the racetrack and collided with the chain fence. The accident left his face completely disfigured even after reconstructive plastic surgery. Issue • Should Hite be awarded moral or extra-‐patrimonial damages for his bodily injury? Holding • Yes. Reasoning • The common law is reluctant to award moral damages. Yet it is erroneous to invoke common law categories of damages in the civil law as doing so derogates from the generality of Article 1053 CCLC. • Moral damages are extra-‐patrimonial because they involve no economic loss. In other words, they involve an infringement of personality rights such as the right to physical integrity. • Moral damages, like all damages, are compensatory and have a functional purpose. In general, compensation is due when one party infringes on the legitimate interest of another, whether it be patrimonial or extra-‐patrimonial in nature. • It is erroneous to say that damages can only be awarded in cases only when money can serve to diminish the effects of the damage. Damages are warranted when there is a breach of a legitimate interest or an objective loss which must be measured despite the difficulty involved. Damages are assessed in an in concreto fashion. • There are no grounds to intervene in the trial judge’s award of damages under the head “loss of physical integrity.” Ratio • « En droit civil, le préjudice est dû parce qu’il y a atteinte à l’intérêt légitime patrimonial ou extra-‐patrimonial et non parce qu’il existe un moyen matériel d’en pallier les inconvénients. C’est une perte objective que l’on doit compenser, perte qui doit être mesurée aussi difficile que soit le processus, de façon raisonnable par rapport à ce dont la victime est effectivement privée. » Ouellette c. Tardif, [2000] R.J.Q. 1386 (C.A.) Facts • Father Tardif was severely injured after being struck by a motorboat driven by Ouellette. The accident left Tardif unable to return to his missionary work in Africa. Tardif then sued in damages. Judicial History • The trial judge awarded Tardif non-‐pecuniary and pecuniary damages, the latter of which were calculated on the basis of the loss of earnings capacity and not the loss of revenue. The total award was reduced by one quarter on account of Tardif’s contributory negligence. The parties appealed
MATTHEW CHUNG | 3 on the issues of responsibility and indemnity.
Issues • Was Tardif contributorily negligent? Did the trial judge err in his calculation of non-‐pecuniary and pecuniary damages? Holding • (1) No. (2) No. Reasoning • The initial award of $75,000 in non-‐pecuniary damages should be maintained as it falls within the limit for such damages as established by the Supreme Court. In addition, such damages were not the basis of the parties’ appeal. • Tardif’s vow of poverty is no bar for his action. While he did not earn a salary for his work as a university instructor, Tardif should be indemnified for the loss of earnings capacity. • Tardif could have expected to receive a salary comparable to that of a professor at a Canadian university and to work until age sixty-‐five, the age of mandatory retirement at such institutions. Ratio • Courts will adopt an in concreto approach in their assessment of damages. Augustus c. Gosset, [1996] 3 S.C.R. Facts • Augustus’ son was wrongfully shot and killed by Gosset, a police officer. Augustus later brought an action in compensatory damages under several heads including that of solatium doloris, as the heir to her son. Issue • Is solatium doloris a type of moral prejudice that is compensable in Québec civil law? Holding • Yes. Reasoning • Any prejudice, whether moral or material, even if it is difficult to assess, is compensable if proven. • Compensation for solatium doloris, that is, damages for the immediate grief and the loss of future moral support resulting from the death of a loved one, is clearly consistent with the recognition of moral damages in the civilian tradition. • The Court of Appeal recognised that solatium doloris is available as a head of compensation but failed to develop new tests for assessing that form of prejudice. Augustus was thereby deprived of her right to be fully indemnified for the moral prejudice she suffered. • Damages owing to the death of a third person should fully compensate for the grief unique to an individual and yet ensure an appropriate relationship between the moral damages awarded in different contexts. • Courts should therefore consider, inter alia, the circumstances of the death, the ages of the deceased and the third party, the nature and quality of the relationship between the parties, the
•
MATTHEW CHUNG | 4 third party’s personality and ability to manage the consequences of the death and the effect of the death on the third party’s life. The Court of Appeal should determine the quantum of compensatory damages for solatium doloris in accordance with these criteria after a hearing.
Ratio • In the civilian tradition, any prejudice, whether moral or material, even if it is difficult to assess, is compensable if proven.
Chamallas & Wriggins, The Measure of Injury: Race, Gender and Tort Law Introduction • The main function of compensatory damages is to restore the plaintiff to the status quo ante. In order to accomplish this restorative function, compensatory damages are awarded to cover a wide variety of losses. • An award of punitive damages requires proof that the defendant acted with malice or conscious indifference to the risks posed by his conduct. Their main function is to punish the defendant for reprehensible behaviour and to deter such behaviour in the future. Gender-‐ and Race-‐Based Tables and the Calculation of Lost Income • Loss of future earnings capacity is largely a function of two variables. Courts continue to rely on gender and race-‐based tables to estimate worklife expectancy and yearly earnings. Thus in the process, historical patterns of wage discrimination in the labour market are replicated in tort awards. • The most common objection to the elimination of such tables is couched in terms of “accuracy.” It stems from the premise that the only legitimate objective of tort law is to restore the victim to the status quo ante. • However, the “make-‐whole principle” is an inadequate description of the many objectives behind compensatory damages. Tort also has an expressive or aspirational dimension. Compensating individuals equally makes a statement about equality and may generate pressure for pay equity in the workplace. Parker v. Richards, 1990 485 (BC SC) Facts • Parker, a seventeen-‐year old mother of a young girl, was killed in a car accident, the cause of which was found to be Richards’ negligence. Parker’s heirs then sued for damages under a number of heads including loss of financial support. Issue • Should the court take gender and ethnicity, inter alia, into account in the assessment of damages under the Family Compensation Act? Holding • Yes. Reasoning • The court should apply a “reasonable test” in the assessment of compensatory damages. Relevant
•
MATTHEW CHUNG | 5 criteria include: gender, age, education, participation in the labour force, marital status, ethnicity and socio-‐economic background. Parker’s financial prospects would have been bleak as a “lone parent female of Native ancestry, with a grade six education and never having held a job, and coming out of a broken home.” One can assume that her greatest source of income would have been social assistance in the amount of $882 per month.
Ratio • Relevant criteria for the assessment of compensatory damages include gender, age, education, participation in the labour force, marital status, ethnicity and socio-‐economic background. 2. Caps to Non-‐Pecuniary Damages
Ter Neuzen v. Korn, [1995] 3 S.C.R. Facts • Ter Neuzen became infected with HIV while undergoing an in vitro fertilisation procedure. At trial, the jury awarded Ter Neuzen non-‐pecuniary damages in the amount of $460,000. On appeal, Ter Neuzen argued that the case was one of the exceptional cases referred to in Andrews and thus the upper limit for non-‐pecuniary damages should not apply. Issues • Was the award of non-‐pecuniary damages excessive in view of the ruling in Andrews? Did the trial judge err in not informing the jury of the upper limit for non-‐pecuniary damages? Holding • (1) Yes. (2) No. Reasoning • In Andrews, the Supreme Court established a rough upper limit of $100,000 for non-‐pecuniary damages. In Lindal, it ruled that this limit could vary in accordance with inflation. Therefore when the present case went to trial, the limit was approximately $240,000. • A “functional” approach is employed in assessing non-‐pecuniary damages for pain and suffering. Courts should not evaluate the loss of happiness but rather seek to provide reasonable solace for misfortune suffered. Non-‐pecuniary awards should only be awarded to the extent that they serve a useful purpose in providing an alternate source of satisfaction. • Once the future care of a plaintiff has been addressed, it is appropriate to consider policy issues in limiting damage awards. • Given that the upper limit for non-‐pecuniary damages in inherently arbitrary, an award exceeding that limit is not justified because an injury is more serious that those in the Andrews trilogy. • It was reasonable for the trial judge not to give an instruction on the upper limit. Only when the trial judge is of the opinion that, by virtue of type of injury, damages might approach or exceed the upper limit should he give such an instruction. Ratio • The rough upper limit for non-‐pecuniary damages is $100,000 in 1978 dollars, adjusted for inflation.
•
MATTHEW CHUNG | 6 An award exceeding that limit is not justified because an injury is more serious that those in the Andrews trilogy.
Curateur c. Sne de l’Hôpital St-‐Ferdinand, [1995] 3 S.C.R. Facts • Employees of a hospital for the mentally disabled participated in illegal strikes and thereby deprived patients of certain care and services. The Public Curator later instituted a class action against the union, seeking compensatory damages for the interference with the patients’ right to inviolability and dignity as guaranteed by s. 1 of the Québec Charter and exemplary damages under s. 49, claiming that such interference was unlawful. Issues • Does the “functional” approach apply to the calculation of moral prejudice in Québec civil law? Was there an unlawful and intentional interference with a Charter right so as to justify the award of exemplary damages? Holding • (1) In part. (2) Yes. Reasoning • Québec civil law adheres to an objective conception of extra-‐patrimonial prejudice. That is, the right to compensation for moral prejudice is not conditional on the victim’s ability to profit or benefit from monetary compensation. It is therefore immaterial that given their mental condition, the patients could not take any satisfaction from compensation. • In Québec civil law, the “functional” approach as defined in the Andrews trilogy is appropriate only the purpose of calculating moral damages. The conceptual and personal approaches also jointly apply so as to produce a reasonable and equitable evaluation of moral prejudice. • The conceptual approach considers each component of a human being to have a specific monetary amount. The personal approach determines compensation in relation to the loss suffered by the victim. • The union did not interfere with the patients’ right to personal inviolability, that is, they did not suffer any permanent prejudice giving rise to sequelae. The trial judge was correct in concluding that they suffered only “minor psychological stress” of a temporary nature. • In contrast, the union interfered with the patients’ right to dignity, that is, the respect to which every person is entitled by virtue of being human. It is immaterial that the prejudice was transient and the patients might have had no sense of modesty. • The interference with the patients’ right to dignity was “unlawful” within the meaning of s. 49 of the Charter as the union’s behaviour constituted a civil fault within the meaning of Article 1053 CCLC. It was intentional in that the union was acted with full knowledge of natural, immediate or highly probable consequences of their conduct. • This interpretation of “unlawful and intentional” accords with the preventative and deterrent role of exemplary damages. Ratio
•
•
MATTHEW CHUNG | 7 In civil law, the “functional” approach is appropriate only for the purposes of calculating moral damages and not justifying their basis. In this process, the conceptual and personal approaches also jointly apply. The award of exemplary damages under s. 49 of the Charter requires “unlawful and intentional” interference. “Intentional” should not be interpreted as specific intent but goes beyond simple negligence.
3. Wrongful Life, Birth and Conception MacKay v. Essex Area Health Authority, [1982] 2 W.L.R. 899 (CA) Facts • During her pregnancy, MacKay became infected with rubella. As a result, her daughter was born with partial blindness and deafness. The child then brought an action against the health authority and a doctor for “wrongful entry into life,” that is, given her injuries in the womb, they were negligent in allowing her to be born. Issues • Did the Defendants owe a duty of care to the child to give her mother an opportunity to have an abortion? Can the court evaluate the child’s damages? Holding • (1) No. (2) No. Reasoning • One must assume that the health authority and doctor were negligent. However, it does not follow that damages should be awarded. • To impose such a duty would threaten the sanctity of human life and thereby contravene public policy. Doing so would imply that the life of a handicapped child is less valuable to the point of not being worthy of preserving. A child has the right to be born whole or not at all. • The only duty of care which courts will recognise and impose is that which can be compensated for loss. That is, damages will put the injured party in the status quo ante. It is simply impossible to measure injured life against uninjured life. Ratio • The imposition of a duty of care may be limited by public policy. • The only duty of care which courts will recognise and impose is that which can be compensated for loss. McFarlane v. Tayside Health Board, [1999] 4 All ER 961 Facts • After the birth of his fourth child, McFarlane underwent a vasectomy. Despite the procedure being unsuccessful, McFarlane was informed that he could forego contraceptive measures. Thereafter his wife became pregnant with their fifth child. He then brought an action in damages for the cost of rearing the child through her childhood. Issue
MATTHEW CHUNG | 8 • Are these damages for child-‐rearing costs recoverable in law? Holding • No. Reasoning • Whether the birth was a legal injury is not at issue. It occurred when the health board failed to ensure that the information it conveyed was correct. The birth violated Mrs. McFarlane’s bodily integrity and threatened further physical and financial damage. • The admission of a new head of damages is not solely a question of principle. Limits on the scope of liability arise from legal policy. That is, courts must resolve disputes in a way that is fair and reasonable and maintain the overall coherence of the law. • That the birth of a healthy baby is a blessing and not a detriment is ground to deny recovery for child-‐rearing costs. • The blessing may be mixed but the advantages and disadvantages of parenthood are inextricably bound together and society must regard the balance as beneficial. In addition, a plaintiff is not normally allowed, by a process of subjective devaluation, to make a detriment out of a blessing. • The McFarlanes have been denied an important aspect of their individual autonomy, that is, the freedom to limit the size of their family. They are therefore entitled to damages to reflect the true nature of the wrong done to them, to be determined by a trial judge. Ratio • Limits on the scope of liability arise from legal policy. Cooke c. Suite, [1995] R.J.Q. 2765 (CA) Facts • Suite underwent tubal ligation in order to avoid future economic hardship. Seven months later, she became pregnant with her fourth child. She and her husband then sued in damages for the cost of rearing the child until he reached the age of majority. Issue • Under the circumstances, should the birth of the Suite’s fourth child be considered a prejudice? Holding • Yes. Reasoning • Under certain circumstances, the wrongful birth of a child can amount to a prejudice which gives rise to the mother’s and parents’ right to damages. • Public policy considerations vary from one society to another. Contemporary Québec society recognises the right of couples to plan the size of their family and the right of women over their bodies. When a couple seeks sterilisation from a doctor who fails in his obligation toward them, they should expect to be indemnified for the prejudice caused by his fault. • The damages in the amount of $30,000 awarded by the trial judge should be upheld. Child-‐rearing costs were an injury that was an immediate and direct consequence of the doctor’s fault under Article 1607 CCQ. Abortion or adoption against personal beliefs cannot be considered “any
MATTHEW CHUNG | 9 aggravation of the injury that the victim could have avoided” within the meaning of Article 1479 CCQ. Ratio • Under certain circumstances, the wrongful birth of a child can amount to a prejudice which gives rise to the right to damages. 4. Introduction to “Duty of Care” and “Causation in Law” Palsgraf v. Long Island Railway Co., 248 N.Y. 339 Facts • As Palsgraf stood on a railway platform, having purchased a ticket, a passenger ran to catch an outgoing train. An employee of the company aboard the train reached out to help said passenger board and guard on the platform pushed him from behind. In the process, a package containing fireworks fell from out of the passenger’s grasp and onto the tracks. The resulting explosion caused scales on the platform to fall, injuring Palsgraf, standing fifteen to twenty feet away. Issue • Did Palsgraf have an original and primary course of action against the railway company? Holding • No. Reasoning Cardozo, J. (Majority) • The conduct of the guard was not a wrong in relation to Palsgraf, who was standing far away, and therefore outside the “orbit of danger.” Nor was it a wrong in relation to the other passenger given that he was neither injured nor even put in danger. • Nor can his conduct be qualified as negligence. Given the circumstances, there was no indication that the package had the potential to cause injury to passengers standing on the platform. This range of reasonable apprehension is determined by a court. • Negligence is not a tort unless it results in a wrong that violates a right or protected interest. While Palsgraf pleaded the violation of her right to bodily security, such a right is only protected against certain forms of interference or aggression. Damage to the person is not actionable per se. If the harm was not intended, one must demonstrate that the act had “possibilities of danger so many and apparent.” Andrews, J. (Minority) • Every individual has a duty to the world at large from refraining from acts that may unreasonably threaten the safety of others. • In finding the “proximate cause,” a court must determine there was “a natural and continuous” sequence between cause and effect. The greater the distance in time and space, the greater the possibility that other causes may intervene. • The explosion was a “substantial factor” in producing Palsgraf’s injuries. That is, there was a natural and continuous sequence. Therefore her injuries were the proximate result of negligence.
MATTHEW CHUNG | 10 Ratio • “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” 5. The Concept of “Duty of Care” Home Office v. Dorset Yacht Co. Ltd. [1970] AC 1004 Facts • A party of convicted young offenders were undergoing a training exercise on an island under the custody and control of three officers. One night, while the officers slept, seven “borstal trainees” boarded a yacht which collided with a vessel owned by Dorset Yacht. The company then sued the Home Office for damages. Issue • Did the Home Office owe Dorset Yacht a duty of care? Holding • Yes. Reasoning Lord Reid • That the yacht would be damaged was a likely consequence of the officers’ neglect to keep the young offenders in custody and under control. All the escapees had criminal records and five had a record of previous escapes. In addition, there were a number of vessels in the harbour that could be easily boarded. • However, the question is whether a novus actus interveniens, that is, the act of another person, broke the chain of causation between the Defendant’s carelessness and the damage sustained by the Plaintiff. Mere foreseeability is insufficient. Rather, the intervening human conduct must be “natural and probable result” of what preceded it. • “The taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel” was a natural and probable result of the officers’ negligence. • There are no good policy considerations for granting immunity to a government department. Ratio • The test for whether a novus actus interveniens broke the chain of causation between the Defendant’s carelessness and the damage sustained by the Plaintiff requires that the third party’s act be a “natural and probable result” of what preceded it. • Policy considerations may limit the imposition of a duty of care. Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 Facts • En route from a private party, Desormeaux collided head-‐on with another vehicle. Childs, who was left paralysed from the waist down as a result of the accident, then brought an action against the party hosts for her injuries. Issue
MATTHEW CHUNG | 11 Does a social host owe a duty of care to a person injured by a guest who has consumed alcohol?
• Holding • No. Reasoning • The two-‐step approach for determining whether a duty of care arises, as laid out in Anns, was adopted by the Supreme Court in Kamloops: 1) Is there a “sufficiently close relationship between the parties” or “proximity”? 2) Are there policy considerations which ought to negate or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise? • Odhavji re-‐affirmed by Anns test and spoke of of three requirements: reasonable foreseeability, sufficient proximity and the absence of overriding policy considerations which negate a prima facie duty. Foreseeability and sufficient proximity are treated as separate elements; the former will not always be satisfied by the latter. • The party hosts were not sufficiently proximate to public users of the highway and therefore did not owe a duty of care. The injury to Childs was not reasonably foreseeable based on the facts found by the trial judge. • Foreseeability alone does not establish a duty of care where the alleged negligence is a failure to act. A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the parties establish a special link or proximity. • Three of such situations have been found by the courts: 1) A party intentionally attracts and invites third parties to an inherent and obvious risk that he created or controls. 2) Paternalistic relationships or supervision and control, such as those of parent-‐child and teacher-‐student. 3) A party exercises a public function or engages in a commercial enterprise that includes implied responsibilities to protect the public at large. • The three situations share the following characteristics: (1) the creation of risk or the control of a risk to which others have been invited (2) concern for individual autonomy (3) reasonable reliance. • Holding a private party where alcohol is served is a common occurrence and not one associated with unusual risks that requires special precaution. Hosts do not enjoy a paternalistic relationship with their guests. Lastly, hosts do not act in a public capacity and thus do not incur duties of a public nature. • Holding a private party does not establish a danger or risk that requires positive action. The consumption of alcohol is a personal choice and an inherently personal activity. There is no evidence that anyone relied on the hosts to monitor guests’ intake of alcohol or to prevent guests from driving. Ratio • The two-‐step approach for determining whether a prima facie duty of care arises is as follows: (1) Is there a “sufficiently close relationship” between the parties or “proximity”? (2) Are there policy considerations which ought to negate or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?
•
MATTHEW CHUNG | 12 Foreseeability alone does not establish a duty of care where the alleged negligence is a failure to act. A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the parties establish a special link or proximity.
6. “Relational Harm”: Secondary Victims Article 1056 CCLC 1056. In all cases where the person injured by the commission of an offence or quasi-‐offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi-‐offence, or his representatives, all damages occasioned by such death. The same right of action belongs to the natural child following the death of his father or mother, and to the father and mother following the death of their natural child. In the case of a duel, action may be brought in the like manner not only against the immediate author of the death, but also against all those who took part in the duel, whether as seconds or as witnesses. In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity and the judgment determines the propretion of such indemnity which each is to receive. These actions are independent of criminal proceedings to which the parties may be liable and are without prejudice thereto. Shauna Van Praagh, “Who Lost What? Relationship and Relational Loss” Introduction • The approach of the common law and civil law traditions toward relational loss differ in their theoretical starting points and mechanisms by which responsibility and compensation are determined. “Who Are You?”: The Canadian Common Law Picture • The starting point in the common law is that nobody can bring a claim against a tortfeasor for relational harm stemming from the death of another person. • All Canadian jurisdictions later enacted fatal accident legislation which provided a right of action for surviving spouses, parents or children for the pecuniary damages they incurred as a result of the wrongful death of someone close to them. • These relational losses should be more accurately referred to as relationship losses in that there is damage to a personal relationship constructed by society to be significant and central. That is, untimely and wrongful death deprived survivors of tangible and expected future benefits. • In order to recognise a claimant, the focus is on the status of that person’s relationship to the deceased or injured. There is no inquiry into the real-‐life closeness between particular parties. • “Nervous shock” is an exception to the traditional common law rule. When so-‐called “secondary
•
• •
MATTHEW CHUNG | 13 victims” experience psychiatric damage as a result of injury or death wrongfully caused to a primary victim. The notion of “shock” suggests that what is experienced is a blow to the mind and is therefore real and tangible. The victim of shock can be characterised as a primary victim of the wrongdoer’s negligence. A close relationship or emotional proximity is crucial to the establishment of a duty of care between tortfeasors and the sufferer of relational loss. The emphasis on relationship or emotional proximity suggests that this area of the law confuses two types of relational loss, damage to a personal relationship and injury in relation to a wrongful event. In addition, it attempts to encompass another type of relational loss, that of grief or sorrow.
“What Have You Lost?”: The Québec Civil Law Tradition • Under the new civil code, the plaintiff is understood to be making an independent rather than a representative or derivative claim. The questions to be asked become: (1) What loss has been suffered? (2) Is the loss the result of the wrongdoing? • That is, the question is never whether this particular person counts but rather whether the quality of the injury complained of and grounded in the particular relationship allows that loss to count. Regent Taxi c. Congrégation des petits frères de Marie, [1929] S.C.R. 650 Facts • A member of a religious community was seriously injured while riding in a bus owned by Régent Taxi. An action was then brought to recover damages sustained by the seminary as a result of Brother Henri-‐Gabriel’s injury. Judicial History • The trial judge found that the injury sustained by Brother Henri-‐Gabriel was attributable to the fault and negligence of one of Régent Taxi’s employees. Such a finding of negligence was not appealed. Issue • Does the seminary have this right of action to claim damages under Article 1053 CCLC? Holding • Yes. Reasoning • The words “to another” in Article 1053 are “clear” and present “no ambiguity.” There is nothing to suggest that such words should be construed as embracing only “the immediate victim” of the Defendant’s tort, to the exclusion of others who also suffer damages directly attributable to such tort. • In addition, there is nothing in Article 1056 to suggest intent to narrow the scope of Article 1053 except where the injured party has died and the claim is for damages occasioned by such a death. • The contract by which Brother Henri-‐Gabriel obligated his services to the seminary gave rise to an interest in his welfare and to justify a claim for damages occasioned by his inability to render services caused by Régent Taxi’s fault.
MATTHEW CHUNG | 14 Alcock v. Chief Constable, [1991] 4 All ER 906 (H.L.) Facts • Responsible for crowd control at a soccer match, the South Yorkshire police force allowed “an excessively large” number of spectators to enter a stadium. In the resulting crush, ninety-‐five people were killed and over four hundred were injured. Scenes of the disaster were broadcast live on television and rebroadcasts occurred thereafter. The Chief Constable admitted liability in negligence. Sixteen plaintiffs then brought actions in damages for nervous shock, which they allege were caused by experiences inflicted on them by the disaster. Issue • In the circumstances, could the Plaintiffs claim damages for nervous shock? Holding • No. Reasoning • The “reasonable foreseeability” test does not apply simpliciter in a claim in damages for nervous shock. • The psychiatric injury must have been induced by shock, that is, a “sudden appreciation” by sight or sound of a horrifying event which “violently agitates” the mind. Damages for being informed of or reading or hearing about the incident are not recoverable. Mere mental suffering in the absence of physical injury is no basis for a claim. • In addition, there must be proximity to the accident in time and space. Direct and immediate sight or hearing is not required. • There were only two Plaintiffs who were on the stadium grounds at the time. • The first Plaintiff whose claims succeeded at trial lost his two brothers. There is a presumption of love and affection in close family relationships such that a Defendant ought to have reasonably contemplated that these persons may have been so closely and directly affected by his conduct. However, such a presumption is rebuttable; the trial judge did not sufficiently scrutinise the first Plaintiff’s relationships. • The second Plaintiff lost a brother-‐in-‐law. However, he was not reasonably foreseeable as a potential sufferer from shock-‐induced psychiatric illness. • The claims of the other Plaintiffs who learnt of the disaster by watching simultaneous television must also fail. In adhering to a code of ethics, television authorities would not show pictures of suffering by recognisable individuals. Such pictures may have given rise to feelings of “the deepest anxiety and distress” but could not be equated with the “sight of hearing of the event or its immediate aftermath.” Ratio • The “reasonable foreseeability” test does not apply simpliciter in a claim in damages for nervous shock. • The psychiatric injury must have been induced by shock, that is, a sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. In addition, there must be proximity to the accident in time and space.
MATTHEW CHUNG | 15 7. “Relational Harm”: “Pure” Economic Loss
Elliot c. Entreprises Côte-‐Nord Ltée, [1976] C.A. 584 Facts • Elliot’s automobile struck and injured an employee of Entreprises Côte-‐Nord who was unable to work thereafter for ten months. As a result, the company hired two foremen allegedly to replace him. Entreprises Côte-‐Nord later claimed the damages it allegedly sustained as a result of the employee’s temporary incapacity. Issues • Does Enterprises Côte-‐Nord fall within the meaning of “another” in Article 1053 CCLC? If so, does it have a right to claim damages? Holding • (1) Yes. (2). No. Reasoning • In order to give Article 1053 its clear meaning, a court should only award damages which are a direct and immediate consequence of a delict. • The relevant test is therefore remoteness and not the class of persons. However, Article 1056 places a restriction on this general rule by limiting the type of persons who are entitled to recover in the case where the person injured by the commission of a delict or quasi-‐delict dies without having obtained indemnity. • The company is not barred from recovery on the ground that it does not come within the meaning of “another” in Article 1053. • However, it must prove that these damages were (1) caused by the fault on the part of Elliot and (2) were an immediate and direct result of such fault. It appears that the hiring of the two foremen was necessitated by the increase in the volume of business undertaken by the company in Sept-‐Îles. Ratio • In order to recover damages under Article 1053 CCLC, a Plaintiff must prove: (1) that damages were caused by the fault of the Defendant and (2) such damages were the immediate and direct result of such fault. The relevant test is remoteness and not the class of persons. Weller v. Foot and Mouth Disease Research Institute, [1996] 1 Q.B. 569 Facts • The Institute imported a virus for experimental purposes that later escaped. As a result, cattle in the vicinity of the premises became infected with foot and mouth disease. Cattle markets were later closed in the markets under statutory order. In turn, Weller et al. were temporarily unable to carry on their business at those markets and suffered economic loss. Issue • Did Weller et al. have a right to claim damages for their economic loss? Holding • No.
MATTHEW CHUNG | 16 Reasoning • A Plaintiff suing in negligence for damages cannot recover if the act or omission did not directly injure, or at least threaten to directly injure, the plaintiff’s person or property but merely caused consequential loss. • The Institute’s duty to take care to avoid the escape of the virus was due to the foreseeable fact that the virus might infect cattle in the neighbourhood and cause their death. • The duty of care is therefore owed to the owners of said cattle. The Plaintiffs have no proprietary interest in anything that might be conceivably be damaged by the virus if escaped. Ratio • In order to have a right of action for negligence, a Plaintiff must demonstrate that he was within the Defendant’s duty of care. He may then recover in damages for the direct and consequential loss that was reasonably foreseeable. No recovery can be made for consequential loss. 8. Duties to Benefit/Rescue W. Van Gerven et al., Tort Law: Scope of Protection (Oxford: Hart Publishing, 1999) at 78 Comparative Overview • In civil law, civil liability may arise from a positive act as well as an omission. The common law is reluctant to accept unrestricted liability for a “mere omission” in contrast to an “omission in action.” This reluctance also extends to failure to prevent another from causing harm. • While a “mere omission” does not arise in the course of positive conduct, an “omission in action” does and is treated as an integral part of such conduct. • In Stovin v. Wise, [1996] AC 933, Lord Hoffman framed the rationale of the common law approach to mere omissions in political, moral and economic terms. • In political terms, the imposition of a duty to rescue or protect would be an invasion of individual autonomy. In moral terms, it would also apply to a large and indeterminate class of people. In economic terms, the efficient allocation of resources requires that an activity bear its own costs. • The following are circumstances under which both the civil law and the common law acknowledge a duty to rescue or protect. The existence of a special relationship with the plaintiff • Positive duties arise when an individual or institute voluntarily assumes responsibility for others even though the obligation lacks a contractual basis. • The obligation of parents to prevent their children from self-‐harm and that of employers to ensure the safety of their employees has been recognised. The creation, to one’s own benefit, of a source of danger • The notion of control over things extends to a duty to prevent him resulting from a source of danger that a person has created to her benefit. Failure to prevent the deliberate wrongdoing of a third party • There is no such general obligation at common law but there are many circumstances in which a duty is imposed.
•
MATTHEW CHUNG | 17 A duty may arise as a result of a relationship of care and control. A duty may also be imposed when a party negligently causes or allows a hazard to arise and it is reasonably foreseeable that third parties may interfere and activate the danger thereby causing damage.
Nicholas Kasirer, “Agapè” (2001) 3 RIDC 575 Qui est mon prochain? Le « prochain/neighbour » de la common law • Donoghue v. Stevenson did not exclude the possibility that an omission could not give rise to civil responsibility. • In fact, the common law has acknowledged a duty to act within the context of certain special relationships. In these circumstances, said duty arises from proximity between the parties. The control that one party exerts over another or the advantage that benefits one party justifies the imposition of this relationship. • The reluctance of the common law to acknowledge a general duty to rescue has been explained in political, moral and economic terms. • However, in more general terms, the duty to rescue is incompatible with the primary aim of civil responsibility, that is, to compensate for damage arising from personal fault. That is, the duty to rescue is based on principles of collective justice and holds an individual responsible for the fault of another. Qui est mon prochain? L’ « autrui/another » du droit civil • Article 1457 CCQ imposes an obligation on everyone to prevent injury to “another,” that is, anyone susceptible to harm that results from her wrongful conduct. That is, a fault in civil law consists of a breach of a norm of socially acceptable conduct. • In the absence of a legislative disposition, the question remains as to whether civilian courts can sanction a failure to act. • In theory, it is difficult to reconcile the principle of collective justice that underlies the civil law with the idea to bestow an advantage upon an individual. In addition, the violation of the victim’s autonomy is difficult to reconcile with the principle of restitution in integrum. There are also practical problems such as the difficult in establishing the scope of the duty. • Section 2 of the Québec Charter establishes a duty to assist a person whose life is in peril. Thus the collective security is ensured in restricting the liberty of the debtor of this obligation. Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 See Pages 9-‐11. Crocker v. Sundance Northwest Resorts, [1988] 1 S.C.R. 1188 Facts • Sundance held a tubing competition prior to which Crocker became intoxicated. Between the first and second heats of the event, the resort owner inquired into Crocker’s condition but did nothing to dissuade him from competing in the competition. While at the top of the hill, Crocker insisted on competing but the resort manager took no steps to restrain him. During the second heat, Crocker fell out of his inner tube, injured his neck and was rendered a quadriplegic. Crocker then sued Sundance in tort. Issues • Did Sundance owe a duty of care to Crocker? If so, did Sundance fail to meet the standard of care?
MATTHEW CHUNG | 18 Did Sundance’s breach of this duty of care cause Crocker’s injury? Did Crocker voluntarily assume the risk? Was Crocker contributorily negligent? Holding • (1) Yes. (2) Yes. (3) Yes. (4) No. (5) Yes. Reasoning • The common law has distinguished between misfeasance, negligent conduct, and nonfeasance, the failure to take positive steps to protect others from harm. • The early common law tended to recognise affirmative duties to act only in cases where the parties were in a special relationship or one party had a statutory or contractual obligation to intervene. Canadian courts have expanded the number and kind of special relationships in which one party has a positive duty to act. • The common thread running through this jurisprudence is that one is under a duty not to place another person in a position where it is reasonably foreseeable that the other party could suffer injury. The inability of the one party to handle the situation is an element in determining the foreseeability of the injury. • A duty of care arose between Sundance and Crocker. Sundance set up an inherently dangerous activity from which it profited financially. Its employees controlled the way in which the event was conducted. They also provided liquor to Crocker and knew of his inebriated state, which increased the chance of injury. • The standard of care is dependent on context. It is relevant to relate the probability and the gravity of injury to the burden that would have been imposed upon the defendant in taking preventive measures. • There were a number of steps that Sundance could have taken in order to dissuade Crocker from competing in the tubing competition. None of these preventative measures imposed a serious burden on the resort. Sundance therefore failed to meet its standard of care. • The defence of volenti or voluntary assumption of risk is a complete bar to recovery. It applies only in situations wherein the plaintiff has assumed both the physical and legal risk involved in the activity. • Sundance attempted to make a volenti defence based on: (1) Crocker’s voluntary participation in a sport that was obviously dangerous (2) the fact that Crocker signed a waiver form prior to the competition. • Given his intoxicated state, it is impossible to say that Crocker assumed the legal risk involved in the competition. Neither by word nor conduct did he waive his legal risks against Sundance. Sliding down a hill does not per se constitute a waiver. • A contractual waiver clause can serve as a full defence to a claim in tort. Yet a waiver provision was never drawn to Crocker’s attention and he did not know of its existence. Ratio • One is under a duty not to place another person in a position where it is reasonably foreseeable that the other party could suffer injury. The inability of the one party to handle the situation is an element in determining the foreseeability of the injury. • The standard of care is dependent on context. It is relevant to relate the probability and the gravity
•
•
MATTHEW CHUNG | 19 of injury to the burden that would have been imposed upon the defendant in taking preventive measures. The defence voluntary assumption of risk applies only in situations wherein the plaintiff has assumed both the physical and legal risk involved in the activity. A contractual waiver clause can serve as a full defence to a claim in tort.
DEFINING THE SCOPE OF CIVIL LIABILITY 9. Revisiting the Causal Connection: Directness and Foreseeability
Peter Cane & Patrick Atiyah, Atiyah’s Accidents, Compensation and the Law (Cambridge: 2013) at 118-‐29. Introduction: Limits on the Liability of Factual Causes • Even where tortious conduct was the factual cause of injury, the tortfeasor may not be held for liable for injury that occurred in an unexpected, unusual or unforeseeable way. • This limitation on liability covers two situations: (1) the consequences of a tort are too remote in time and space, in particular, where there is an intervening event between the tortious conduct and the occurrence of the harm (2) the damage occurs in an unusual way or is of an unexpected kind despite being close in time and space. • The policy that underlies this limitation is that it is unreasonable for a person to take precautions against unexpected or unusual events. Legal Causation • The but-‐for test for factual causation is indiscriminate in that it reveals causes that are merely necessary conditions for the injury. In finding the legal cause of the injury, the court must select one or more of the facts but for which the damage would not have occurred. • Legal causation is not concerned with an explanatory question but rather with an attributive question: Should we attribute responsibility for this consequence to that cause? • There are several criteria that tort law employs in identifying the legal cause(s) of an injury: (1) Human conduct tends to be identified as a legal cause in preference to natural causes except in the case where the latter is sufficiently abnormal or improbable (2) the agent of harm is more likely to be treated as its cause than the sufferer (3) tortious conduct is more likely to be treated as the cause of harm than non-‐tortious conduct. • There are concepts in tort law that can be used to relieve individuals of liability for harm they can said to have “caused,” including scope of the risk, foreseeability and duty of care. • Foreseeability is used as a means to determine the extent of liability for the consequences of negligent conduct. If a consequence is very unusual or very remote from the tortious conduct, it may be said to be unforeseeable. • Foreseeability only requires that the type or kind of damage suffered is foreseeable, not the exact extent or manner of occurrence. Starck, Boris, Henri Roland & Laurent Boyer. Droit civil: Les obligations, 3rd ed (Litec: Paris, 1988) at paras 1055-‐85. Le lien de causalité • For a wrongdoer to incur extra-‐contractual civil responsibility, one must establish a causal link
MATTHEW CHUNG | 20 • •
between an injury and a wrongful act. In many cases, an event results from a number of factors, all of which are necessary for the injury to have occurred. However, courts make a distinction between factual and legal causes. The establishment of a legal cause often raises a number of practical difficulties. It is impossible to give a single definition of legal cause. In practice, equitable considerations and the institution of the individual judge are the means by which these difficulties are thwarted. That is, this inquiry is subjective rather than scientific in nature.
Overseas Tankship (UK) v. Morts Dock & Engineering (Wagon Mound No. 1) [1961] AC 388 Facts • Overseas Tankship chartered the Wagon Mound that leaked a large quantity of furnace oil due to the carelessness of its engineers. The majority of the oil accumulated around the wharf owned by Morts Dock. Overseas Tankship made no effort to disperse the oil. The oil later caught fire as the result of a flaming piece of debris falling from the wharf belonging to Overseas Tankship. Issues • Was Overseas Tankship liable for the damage resulting from the fire? Holding • No. Reasoning • The trial judge found that Overseas Tankship could not have reasonably foreseen that the furnace oil was capable of catching fire when spread on water. • Polemis should no longer be regarded as good law. That is, a defendant should not be held liable for all consequences of his negligent act however unforeseeable and however grave insofar as they can be said to be “direct.” • In other words, reasonable foreseeability is the appropriate test for causation in law. Ratio • Reasonable foreseeability is the appropriate test for causation in law. • Tortious liability is founded not on the negligent act itself but rather on its consequences. Brisson c. Potvin, [1948] B.R. 38 Facts • Potvin’s parked vehicle encroached on a residential sidewalk. As a result, in order to avoid the obstacle, pedestrians were required to walk onto a road, past its dividing line, and drivers were also required to enter the lane reserved for oncoming traffic. In these circumstances, Norma Brisson was struck by a certain Tremblay and later lost sight in one eye. Brisson then sued both Potvin and Tremblay in his capacity as tutor to his daughter. Issue • Should Potvin be held responsible for Brisson’s injury? Holding • No.
MATTHEW CHUNG | 21 Reasoning Pratte and Gailpeault JJ. • Potvin admittedly committed a quasi-‐decict by virtue of his own wrongful act. However, he can only be found responsible for Norma’s injury if it was a direct and immediate consequence of his wrongful act under Article 1075 CCLC. • Any definition causal link is difficult to establish. The jurisprudence and doctrine indicates that it exists when the injury can be said to be a logical consequence of the wrongdoer’s fault. That is, it is reasonably foreseeable. • However, a fault committed by another party, which is more direct in relation to the victim’s injury and normally unforeseeable by the wrongdoer, will be considered to be an intervening cause. • Imprudence on the part of Norma the chain of causality. She was skipping when she crossed into the road in order to avoid Potvin’s parked vehicle. Her imprudence was an intervening cause in that it was unforeseeable to Potvin and contributed in a more direct way to the accident. Her injury was therefore not a normal and foreseeable consequence of Potvin’s fault. • It is unnecessary to consider whether he materially contributed to the accident or the injury suffered by Norma. Ratio • A causal link exists when the victim’s injury is a logical consequence or a reasonably foreseeable result of the wrongdoer’s fault. • A fault committed by another party, which is more direct in relation to the victim’s injury and normally unforeseeable by the wrongdoer, will be considered to be an intervening cause. Morrisette v. T. McQuat & Sons, [1958] B.R. 684 Facts • McQuat & Sons installed iron spikes in a concrete loading dock in order to prop open its doors. Morrisette was in the process of loading empty propane cylinders into the warehouse when the chain linking them suddenly broke. As a result, he was thrown to the ground at which point the iron spikes pierced into his side. Morrisette then brought an action against McQuat & Sons under Article 1053 CCLC for having imprudently and negligently installed a dangerous object on its premises. Issue • Was there a causal link between McQuat & Sons’ alleged negligence and the injury that Morrisette sustained? Holding • No. Reasoning • The breaking of the chain was the immediate cause of the injury that Morissette sustained. Even though the iron spike was an intrinsically dangerous object, it was merely a necessary condition and an indirect or remote cause.
MATTHEW CHUNG | 22 Joly c. Ferme Ré-‐Mi Inc., [1974] C.A. 523 Facts • Joly struck a utility pole with her vehicle which caused a power outage in the nearby poultry farm for nine hours. Despite the efforts of the farm owners to save their livestock within a reasonable delay, the inactivity of the ventilation system resulted in the suffocation of the chickens within three hours. The evidence indicates that Hydro-‐Québec was reasonably diligent in the restoration of power to the farm. Issue • Was the death of the chickens an “immediate and direct consequence” of Joly’s fault within the meaning of Article 1075 CCLC? Holding • Yes. Reasoning • The evidence indicates that neither Ferme Ré-‐Mi nor any third party had been at fault. The injury was therefore an “immediate and direct consequence” of Joly’s fault, that is, it was reasonably foreseeable. Hughes v. Lord Advocate, [1963] AC 837 (HL) Facts • Employees of the Post Office removed a manhole cover in order to complete work on telephone cables. They erected a tent over the manhole and placed four warning lamps around the tent. Prior to leaving the area, they removed the ladder leading into the manhole and covered the entrance to the tent with a tarp. After Hughes decided to enter the shelter, a lamp fell into the manhole which caused an explosion. As a result, the boy sustained severe burns. Issue • Was the kind of injury that Hughes suffered reasonably foreseeable? Holding • Yes. Reasoning • The employees of the Post Office were at fault in leaving the open manhole unattended. Moreover, it is clear that they owed a duty of care to Hughes. The only remaining question is whether the kind of injury that Hughes suffered was reasonably foreseeable. • Burns caused the injury that Hughes suffered. Injuries from burns were foreseeable. The explosion was simply one way in which the paraffin lamp could have caused burns, albeit it was somewhat unpredictable. • The extent of injury that Hughes suffered was unforeseeable but neither this fact affords a defence. Ratio • In determining a causal link between fault and injury, courts inquire into whether the kind of injury was reasonably foreseeable. The manner in which the injury occurred or the extent of the
MATTHEW CHUNG | 23 injury is immaterial. 10. Public Authorities Williams v. Ontario, 2009 ONCA 378 Facts • Williams allegedly contracted SARS as a patient during a two-‐day hospital stay in early 2003. She claimed, inter alia, that the decision of the province to relax preventive measures for the disease imposed on hospitals led to recurrence of the disease and her infection. Issue • Did Ontario owe a private law duty of care to Williams? Holding • No. Reasoning • Given that the facts of the case do not fall within a recognised category, one must proceed with the Anns-‐Cooper test. From the outset, Ontario admitted that the injury that Williams suffered was foreseeable. Therefore the remaining issue is whether Ontario was in a relationship of proximity. • The exercise of discretionary powers is done in the general public interest. That is, the Minister was required to balance a number of competing interests, the nature of which are inconsistent with a private law duty of care. • The mere fact that Williams contracted SARS while in a publicly funded hospital does not put her in a narrow close of individuals in a direct relationship with Ontario. • Coopers involved a narrow class of individuals whose interests were vulnerable to the agents who public authorities were mandated to supervise. Still, no duty of care was imposed in the present case. Ratio • The exercise of discretionary powers by public bodies is done in the general public interest. That is, they are required to balance a number of competing interests, the nature of which are inconsistent with a private law duty of care. 11. Multiple Wrongdoers and Multiple Causes Deguire Avenue Ltd. c. Adler, [1963] B.R. 101 Facts • Deguire delegated administration of an apartment complex to Adler who in turn hired his own employees. An explosion occurred in an occupied apartment during a visit by a prospective tenant which caused physical injury to the tenants in the neighbouring apartment. The tenants, the Carriers, brought two actions against Adler and Deguire. Adler then brought an action in warranty against Deguire on account that he was its authorised representative and that the persons at fault were its employees. Issue • Were Deguire and Adler jointly and severally liable for the injury suffered by the Carriers within
MATTHEW CHUNG | 24 the meaning of Article 1106 CCLC1?
Holding • Yes. Reasoning • Three negligent acts occurred prior to the explosion: (1) In the process of painting the unoccupied apartment, Adler’s employees neglected to reconnect the gas stove. (2) For weeks later, concierges later opened a gas valve which thereby caused gas to enter the apartment. (3) The prospective tenant viewing the apartment failed to put out his cigarette, triggering the explosion. • According to the theory of « l’équivalence des conditions, » in order to find one of more alleged wrongdoers responsible for the victim’s injury, three following conditions must be met: (1) A fault committed by each one (2) A causal link between the each wrongful act and the injury (3) A unique injury resulting from each fault. • That is, if an injury results which results from independent acts of negligence committed by two or more persons, each of whom has directly contributed to the injury, each will be found to be severally liable. • Nevertheless, even went joint and several liability is found, responsibility will be apportioned appropriately between or among the wrongdoers. • In the present case, Adler’s employees and those of Deguire all contributed to the injury sustained by the Carriers. Therefore they should be found to be joint and severally liable. Ratio • According to the theory of « l’équivalence des conditions, » in order to find one of more alleged wrongdoers responsible for the victim’s injury, three following conditions must be met: (1) A fault committed by each one (2) A causal link between the each wrongful act and the injury (3) A unique injury resulting from each fault. • That is, if an injury results which results from independent acts of negligence committed by two or more persons, each of whom has directly contributed to the injury, each will be found to be severally liable under Article 1526 CCQ. Q. v. Minto Management (1985) 15 DLR (4th) 581 (Ont HC) Facts • An employee of Minto raped Q in her apartment three months after a similar event took place in the same complex. The landlord was aware of the incident and knew that it had been likely committed by someone with access to a master key. However, it did not warn the tenants or take any precautionary measures. Issue • Was the conduct of Minto’s employee too remote as to not be reasonably foreseeable? Holding
1 Now Article 1526 CCQ: “The obligation to make reparation for injury caused to another through the fault of two or more
persons is solidary where the obligation is extra-‐contractual.”
MATTHEW CHUNG | 25 • No. Reasoning • Given Minto’s negligence, that is, its failure to provide proper locks, the risk that some person would enter the woman’s apartment was a foreseeable risk. The landlord may not have foreseen that the identity of said person would be its own employee. • The act of Minto’s employee cannot be regarded as an intervening act that broke the chain of causation. Minto’s negligence must still be regarded as the effective cause in that it ought to have reasonably anticipated such interventions. Ratio • If a defendant creates an unreasonable risk, his negligence will be regarded as the effective cause in the event of a third party’s intervening act if he ought to have reasonably anticipated such interventions. Caneric Properties Inc. c. Allstate Compagnie d’Assurance et Ville de Montréal, [1995] RRA 296 (CA) Facts • Caneric owned an unoccupied building that was set for demolition from which water began to leak into the basement of the neighbouring property. Employees of the city arrived at the premises in order to cut the water supply of the unoccupied building but left before fully completing the task. As a result of a cold snap, pipes in the unoccupied building burst thereby flooding the basement of the neighbouring property. Issue • Were Caneric and the city of Montreal jointly and severally liable for the injury under Article 1054 CCLC? Holding • Yes. Reasoning • Three negligent acts occurred prior to the explosion: (1) Whereas the bursting of pipes mid-‐winter is a foreseeable event, Caneric failed to cut the water supply to the unoccupied building. (2) The city employees were grossly negligent in leaving the premises before cutting off the water supply. (3) Caneric was negligent in failing to ensure that remedial actions were in fact taken by the city. • In order to establish a causal link, even in the case of multiple causes, a court must be satisfied that: (1) the injury was a direct, immediate and logical consequence of the wrongful act and (2) the wrongdoer could have reasonably foreseen said consequence. • Each of three negligent acts meets these criteria. However, the first fault committed by Caneric was admittedly more remote in time compared to the other two negligent acts. • Given that the remaining two negligent acts were of the same gravity, Caneric and the city of Montreal should be found to be to be joint and severally liable. Ratio • In order to establish a causal link, even in the case of multiple causes, a court must be satisfied that: (1) the injury was a direct, immediate and logical consequence of the wrongful act and (2) the wrongdoer could have reasonably foreseen said consequence.
MATTHEW CHUNG | 26
12. Placing the Victim under Scrutiny: The Predisposition of the Victim Smith v. Leech Brain & Co Ltd. [1962] 2 QB 405 (QBD) Facts • Smith was employed by Leech Brain as a galvaniser. As part of his duties, Smith was responsible for lowering articles into a bath of molten metal by way of a crane. In the process, he normally used a piece of corrugated iron in order to protect his face. One day, he inadvertently sustained a burn on his lip that became cancerous. Smith had previously worked in the gas industry and was prone to cancer in that a trauma such as a burn could cause cancer to develop. However, cancer might equally have developed even if he had not suffered the burn. Issue • Was the kind of injury that Smith suffered reasonably foreseeable? Holding • Yes. Reasoning • The issue of liability is uncontentious. A reasonable employer would have foreseen the risks involved in operating a crane in close proximity to the bath of molten metal and provided proper protection to Smith. • The primary question is whether the burn caused the injury, in whole or in part. On the balance of probabilities, the burn was the promoting agency of the cancer from which Smith died. The type of injury he suffered was reasonably foreseeable although the extent of the injury depended on his particular characteristics and constitution. • A general principle of tort law, as expressed in the “thin skull rule,” is that the tortfeasor must take his victim as he finds him. Ratio • According to the “thin skull rule,” the tortfeasor must take his victim as he finds him. That is, if the type of injury the victim suffers is reasonably foreseeable, the actual extent of the injury, which is dependent on his personal characteristics, is immaterial. Marconato v. Franklin, [1976] 6 WWR 676 Facts • Marconato was physically injured in a car accident after which point she developed depression and an acute anxiety disorder. The psychiatric evidence reveals that she had preexisting paranoid tendencies. Issue • Should Franklin be held liable for the consequences of the injury sustained by Marconato? Holding • Yes. Reasoning
•
MATTHEW CHUNG | 27 It is clear that Franklin could have foreseen the probability of physical injury. The consequences of Marconato’s physical injury were unusual but arose voluntarily. She was predisposed by her personality to suffer the consequences of her modest physical injury and it was the predisposition which brought on the unusual consequences of the injury.
Ratio • The “thin skull rule” applies to the consequences of the injury sustained by a victim. Corr v. IBC Vehicles, [2006] EWCA Civ 3112 Facts • Corr’s ear was severed as the result of malfunctioning equipment at his workplace. His physical injuries included disfiguration, mild tinnitus and severe headaches. In terms of psychological trauma, he developed post-‐traumatic stress disorder and struggled to cope with both daily life and his work. After his depression worsened, Corr took his own life. His widow brought a claim against his employers on behalf of his estate under the Fatal Accident Act, 1976. IBC Vehicles admitted that Corr’s injury was caused by its negligence or, in the alternative, its breach of statutory duty. Issue • Can Corr’s eventual suicide be included in the compensable consequences of his depression? Holding • Yes. Reasoning Lord Justice Sedley • The law now accepts that the foreseeability of psychological harm as a concomitant of foreseeable physical harm. A break dictated by public policy or logic can only intervene to exclude death by suicide from the compensable consequences of depression. • Suicide has been decriminalised in England since 1961. Once it has been established that suicide is no bar to the recovery of damages in tort, the relationship of suicide to the psychological injury suffered by the individual becomes a question of fact. • The evidence in this case clearly indicates that Corr’s depression drove him to take his own life. Therefore suicide should be included in the compensable consequences of his depression. Lord Justice Wilson • Corr’s suicide did not break the chain of causation resulting from IBC Vehicles’ negligence. Suicide should not be regarded as a novus actus intervenus. • While deliberate, suicide may often not be the product of individual will. An individual need not be completely insane in order for suicide to not be regarded as an intentional act breaking the chain of causation. Ratio • A break in the chain of causation dictated by public policy or logic can only intervene to exclude death by suicide from the compensable consequences of depression.
2 NB: IBC Vehicles subsequently appealed this decision, however, the House of Lords maintained it. See Corr v. IBC Vehicles,
[2008] UKHL 13.
•
MATTHEW CHUNG | 28 In jurisdictions where suicide has been decriminalised, the factual inquiry must examine the relationship of suicide to the psychological injury suffered by the individual.
13. Placing the Victim under Scrutiny: The Behaviour of the Victim
Girard c. Hydro-‐Québec, [1987] RRA 80 (CA) Facts • While driving along a road, Girard noticed an electric wire hanging from a charred utility pole. He descended from his car in order to wrap a plastic bag around the wire so as to alert other drivers to the danger. Girard was later electrocuted and having been thrown to the ground, severely injured. Issue • Was Girard’s own negligence the causa causans of his injury? Holding • Yes. Reasoning • Hydro-‐Québec admittedly committed a fault by installing a defective circuit breaker. However, it is unnecessary to consider whether there was a causal link between this fault and the injury that Girard suffered. • The recklessness or gross negligence on the part of Girard was the causa causans of the injury he suffered. Neither Girard nor any third party suffered any immediate danger. The fallen wire was clearly visible from the road to any other passer-‐by. • The existence of a danger per se will not absolve a party of gross negligence except in the case of a trap, emergency, absolute necessity or an immediate danger. Not one of these conditions was present. • Girard’s negligence was a direct, logical and immediate consequence of the injury he suffered. Ratio • The existence of a danger per se will not absolve a party of gross negligence except in the case of a trap, emergency, absolute necessity or an immediate danger. CONCLUSIONS 14. Reflections on the Role and Nature of Extra-‐Contractual Obligations/Torts
