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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 14 / 64

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

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.

8/10/02

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:

McHale v. Watson (McTiernan J.)

Common Law:

McHale v. Watson (Kitto J.)

Civil Law: Ginn v. Sisson

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