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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 22 / 64

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

In civil law, this area is governed by (a.1457) and (a.1459):

When you sue under (a.1457), you must sue the parents as tutors of the child.

Under (a.1459), there is presumption of fault, but no presumption of responsibility. Parents can defend themselves by proving absence of fault.

Most children have no money themselves!

This rule is justified by the fact of parental authority (a.394).

Under (a.1459), courts will presume fault in custody/education/supervision—any or all of these: they are never separated. A defendant parent must rebut all three presumptions.

Courts will also presume causation.

Conditions of liability under (a.1459) (1 to 3 are presumed; they replace the fault requirement):

1. filiation (a.600)

2. minority

3. act or fault of minor: This is the most confusing condition. It is determined by:

discernment

According to some, this is part of the fault requirement; according to others, it’s separate: see Kasirer. Parents can be liable despite the child’s lack of discernment: (a.1462) provides for a fiction of discernment. Discernment appears to be irrelevant in practice.

reasonable child of a comparable age

4. injury

5. causation

If all of these conditions are fulfilled, they lead to presumption of fault in education, custody and supervision.

Quebec law has extended this liability to anyone who has control over a child’s “custody, supervision or education” (a.1460) (e.g., teachers)—this replaces the filiation condition.

Germanic legal systems have the same rule.

defences: The parents will try to argue:

1. Reasonable (absence of fault in) education.

2. Reasonable (absence of fault in) supervision and custody,

generally

at the time of the incident.

24/10/02  [missed class; notes from Alexandria Sjöman, edited]

Gaudet c. Lagacé, [1998] R.J.Q. 1035 (C.A.). (CB1p371)

Jurisdiction

Quebec

Facts

Three kids (aged 11, 12 and 13) stole matches and lawnmower fuel from one of their parents’ garages. They went into the woods and lit a fire in which one of them got burnt. Their stories were confusing enough that the court held that it was unclear whose fault caused the explosion.

Issues

1. Could the parents of the two children who were not burnt be held responsible for the injury?

2. How would liability be apportioned?

3. Would the apportionment of the children’s liability affect the parents’ claim as victimes par ricochet?

Holding

1. No; 2. one-third each; 3. Yes.

Ratio

1. The parents established that they had given their sons a good education, and that they had supervised their children adequately. The parents generally did not tolerate the kids’ use of dangerous objects; they had warned their kids that fuel was dangerous; they could not have been expected to keep lawn mower fuel under lock and key. The parents did not know of previous similar outings, but they could not be expected to supervise pre-teens that closely. In general and at the time of the incident, the court found that the parents were reasonable.

The court said that reasonable education is evidence of reasonable supervision, but is not sufficient on its own; parents must prove both.

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