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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 25 / 64

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

a.1054, para.6 applies only to paras. 2-5. From a policy point of view, he feels this is too onerous a burden, but he feels constrained by the text to accept presumption of responsibility. (Although he does use the words “presumption of fault” at one point, Khoury thinks this is a mistake.)

Duff J. dissented (for reasons not important to this summary). He argued for liability based on fault, and he did not find fault.

Comments

According to Khoury (in lecture), this decision left the state of the law uncertain. It ended up somewhere between presumption of fault and presumption of responsibility; it was only really decided in City of Montreal v. Watt and Scott.

Quebec Railway, Light, Heat and Power v. Vandry: In this case, the court favoured presumption of responsibility.

City of Montreal v. Watt and Scott, [1922] 2 A.C. 555. (CB1p397)

Jurisdiction

Quebec

Facts

During a heavy storm, water overflowed from a sewer and flooded Watt and Scott’s basement. The trial court found the city liable for the damage, because it could have prevented it (by building a bigger sewer, installing valves, or a pumping station). The King’s Bench overturned the decision based on force majeure. The SCC reinstated the trial decision, holding that the rainfall was not so exceptional as to constitute a force majeure. (However, they also considered that the plantiffs might have installed valves, so they halved the damages.) In any case, it is clear that the damage was caused by a thing, the sewer, under the care of the city.

Issues

Does the first paragraph of a.1054, CCLC, establish a presumption of responsibility for the fault of things under one’s care, or does this presumption only apply when the defendant fails to establish absence of fault? In other words, does the “exculpatory” paragraph 6 of a.1054 apply to paragraph 1, or only to paragraphs 2-5?

Holding

The House of Lords decided that a finding of responsibility for damage caused by the fault of things under one’s care would be rebuttable by the argument of inability to prevent the injury from happening. Therefore, it was a presumption of fault, not responsibility. However, the defendants did not make this argument, so the SCC’s decision stands.

Ratio

This finding is partly supported by creative interpretation of the French (“ci-dessus”) and the English (“in the above cases”) texts of a.1054, para. 6. It is also justified for policy reasons: the House of Lords felt that the alternative reading would place too onerous a burden on “those who had things under their control.”

Comments

Funny how the momentous interpretation issue ended up having no bearing on the case itself!

This case settled the ambiguous state of law left by Shawinigan Carbide Co. v. Doucet and Quebec Railway, Light, Heat and Power v. Vandry.  

The courts have followed the City of Montreal v. Watt and Scott decision ever since. The new CCQ provisions also reflect this interpretation.

(a.1465) contains a presumption of fault. It requires:

1. custody

2. a thing

3. an autonomous act

This means that there cannot have been any human intervention.

The thing must have had a “dynamic role” in the creation of the damage.

a.1055 of the CCLC became (a.1466 and 1467).

(a.1466) (for animals) and (a.1467) (for buildings) contain a presumption of liability. They are not rebuttable by absence of fault.

Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452. (CB1p400)

Jurisdiction

Quebec

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