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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 23 / 64

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

2. The three children were held to have each contributed to the fault, so the two children who were not burnt were held solidarily liable for two-thirds of the damages. (The other third was the plaintiff’s own share.)

3. The parents’ award as victimes par ricochet was discounted by one-third, the same rate as their son’s damages. The court did not give any reasons for this.  

Comments

Would this kid really ever get the money?

In most common law jurisdictions, there is no special regime of liability for the deeds of children.

Parents have a duty to take reasonable care (but only reasonable care) to supervise and control minor children.

The burden of the proof of fault remains on the victim.

Manitoba Parental Responsibility Act: Presumption of fault on part of parents for “intentional” destruction, damage or taking of property by children, up to $7500.

This is more restrictive than (a.1459)

Parents can defend themselves by arguing that their supervision was reasonable and that they made reasonable efforts to discourage the kids from similar acts.

Ontario Parental Responsibility Act: Parents are presumed at fault for property damage by their kids, unless they prove reasonable supervision and efforts to avoid loss.

Parents are required to provide reasonable education and supervision. If the child has a bad character, then parents' responsibility is higher.

29/10/02

Liability for the Deeds of Things

Historically, liability for the deeds of things has jumped from number 1 (fault) to 2 (presumption of fault) to 3 (strict liability) back to 1.

Under Roman law, there was no general law of liability for the deeds of things.

The general law is less than 100 years old. It is a creation of jurisprudence, even in Quebec and France—but it is linked to the articles of the Code.

Rylands v. Fletcher (1868) L.R. 3 H.L. 330. (CB1p375)

Jurisdiction

England

Facts

Fletcher, who owned a mill, built a reservoir on land adjacent to land where Rylands operated a coal mine. Fletcher did not know that there were disused mine shafts below the reservoir which connected to Rylands’s mine. (His contractors, however, became aware of the shafts during the work, and did nothing.) When the reservoir was filled, water leaked down and flooded the mine.

Issues

In cases where a person brings onto his or her land “something which, though harmless while it remains there, will naturally do mischief if it escape out of his land,” should there be “an absolute duty to keep it in at his peril,” or only a duty to take all reasonable care that it should not escape? (law)

Holding

In the Court of Exchequer Chamber, Blackburn J. (for the Court) said yes. On appeal, the House of Lords affirmed this decision.

Ratio

Blackburn J. stated, “…the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the consequence of its escape.” It is strict liability, not absolute liability, because “He can excuse himself by showing that the escape was related to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God.” This position is justified by analogy with older cases involving animals. There is also some discussion of risk and willingness to assume risks.

In the House of Lords, Lord Cranworth upheld this ruling, adding that it applied “however careful he [the defendant] may have been.” Lord Cairns added the condition of “non-natural use of land.”

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