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

parties that the defendant assumed no responsibility…”


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


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!


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.

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