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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 24 / 64

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

Therefore, the test consists of three conditions:

1.

thing not naturally on land

2.

thing likely to do mischief if it escapes

3.

escape

Comments

This case’s history is uncertain; it seems to have limited application (unfortunately!)

Rylands v. Fletcher is still alive but not doing very well. Courts have shrunk it to the point where it rarely applies.

During the Industrial Revolution, the common law courts did not exploit the potential of Rylands v. Fletcher to respond to pollution.

The “non-natural use” requirement has been expanded.

Several defences are recognized.

The torts of negligence and nuisance have grown instead.

In the CCLC (adopted almost at the same time as Rylands v. Fletcher), (a.1055,CCLC) provided a regime for injury caused by specific things: buildings and animals.

There was ambiguity in (a.1054 al.6,CCLC)

31/10/02

In Quebec, late 19th and early 20th century courts found that the end of (a.1054,CCLC) was just an introduction to (a.1055,CCLC).

The courts interpreted (a.1054 al.1,CCLC) to create a general regime of liability for the deeds of things.

This is one of the most striking examples of judge-made law in civil law. (It was justified as interpretation)

Once judges had established a regime for liability caused by things, it could be:

1. presumption of fault

or

2. presumption of responsibility

(a.1054 al.6,CCLC) makes it possible for the defendant to exonerate herself or himself by proving an inability to prevent the damage.

Read in connection with al.1, it seems to indicate a presumption of fault.

However, it’s unclear whether al.6 applies to al.1.

Shawinigan Carbide Co. v. Doucet, [1909] 42 S.C.R. 281. (CB1p382)

Jurisdiction

Quebec

Facts

Doucet tended a furnace at Shawinigan Carbide with one other worker. The furnace exploded, and a jet of hot carbide burned Doucet’s eyes out. The cause of the explosion was a mystery.

Issues

Could the company be held liable for the injury?

Holding

Yes (Duff J. dissenting).  

Ratio

The case turned on the interpretation of a.1054 of the CCLC. Is responsibility for injury caused by things under one’s care based on presumption of responsibility (paragraph 1 standing alone) or presumption of fault (paragraph 6 applied to paragraph 1)? There was also discussion in class (on 7/11 and 21/11) of whether a.1054 created “a general regime of liability for the deeds of things.” I’m not sure what this means.

The five judges had widely divergent views:

Fitzpatrick C.J.C. argued for presumption of responsibility. He said that if the machine is used for profit and creates a risk, the owner must pay damages.

Girouard J. argued that a.1054, para.6 applies only to paras. 2-5, but he denied that this would result in presumption of responsibility: he was in favour of liability based on fault (fault must be proven).

Idlington J. found the fault of Shawinigan Carbide based on res ipsa loquitur, with no reference to a.1054.

Anglin J. found fault based on a defect (res ipsa loquitur). In obiter, he argues that

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