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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 17 / 64

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

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

(absolute liability based on statutory breach)

arguments in favour of the Canadian model

(statutory breach as evidence of fault)

clarity

exemplary function

predictability

deterrence (extra deterrence helps)

criminal standards need criminal safeguards

do we need extra deterrence?

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

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