X hits on this document

Word document

EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 13 / 64

166 views

0 shares

0 downloads

0 comments

13 / 64

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

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

Document info
Document views166
Page views166
Page last viewedFri Dec 09 23:23:36 UTC 2016
Pages64
Paragraphs3391
Words35409

Comments