McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
In addition, the development of insurance (especially liability insurance) has contributed to people’s unwillingness to accept fate.
Categories of Analysis:
Individualistic/Moralistic: looking for the wrongdoer, the responsible individual (identifying fault)
Communitarian/Social: society has to take the loss
Equality (i.e. equity): the law should protect the weak against the strong, re-establishing a balance of power
Instrumentalist: defines the goal of the law, and then adapts the rules to meet the goal:
In common law (torts), specific interests are protected by specific torts.
Torts develop out of case law; in theory, courts can create new torts.
However, most torts fall under negligence.
In civil law, all interests are protected (a.1457).
However, in practice, boundaries are set by jurisprudence.
ECO versus contractual obligations:
In common law, if two people have a contract and damage arises in the execution of the contract, the plaintiff has a right to sue under contract law or tort.
In civil law, there is a rule of “non-cumul”: If two people have a contract, it must stay in the realm of contract law.
ECO versus criminal law:
In a criminal case, the victim is just a witness; society is suing.
The goals of criminal law include: repression, exemplarity, punishment, and public order.
The main goal of ECO is compensation (but also individual justice).
Criminal sanctions often involve jail, while ECO sanctions only involve money.
In criminal law, the anti-social behaviour of the defendant is central. In ECO, it may have an impact, but it is not central.
ECO and criminal law were originally part of the same branch of law, which later diverged.
Papadatos c. Sutherland,  R.J.Q. 1020 (C.A.). (CB1p22)
Sutherland was kidnapped, assaulted and tortured for seven hours by Papadatos and one other person. Papadatos was convicted and punished in a criminal trial. Sutherland sued for compensatory damages (on the basis of pain and suffering, etc.) and exemplary damages (as authorized by s.49 of the Quebec Charter).
Could the court award exemplary damages when a defendant has already been punished in a criminal court?
Civil law was silent on the issue, so the court followed common law doctrine. (This seemed appropriate since punitive/exemplary damages were essentially a common law doctrine, borrowed into civil law.) The common law principle is that “Where the criminal process has been utilized, …tort law withdraws, except to the extent of ordinary compensation.”
Sutherland was however able to recover compensatory damages.
ECO versus morality: