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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 30 / 64

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

The “state of the art” defence is permitted, allowing manufacturers to argue that there was not enough scientific knowledge to prevent the injury. (a.1473 al.2)

19/11/02

There are three interpretations of the CCQ regime of product liability:

1. There is no presumption of responsibility, but a presumption of knowledge.

Some say this is equivalent to fault: knowing about the defect and doing nothing is fault.

2. There is presumption of fault: the inherent danger of the product is equivalent to fault.

The inherent danger of the product may have nothing to do with the defendant’s conduct.

3. There is presumption of responsibility: liability without fault.

Baudouin takes this view.

How can this be reconciled with the state of the art defence? (a.1473 al.2)

The EU directive seems tofall under this interpretation, but it may face the same problem.

Medical Liability

Medical liability is where personality rights and extra-contractual obligations meet.

In past times, people were not free to dispose of their life and death on their own.

Nowadays, people have a right to autonomy and self-determination:

s.7 of the Charter guarantees life, liberty, and security of the person.

s.12 of the Charter guarantees freedom from “cruel and unusual treatment or punishment.”

a.1 of the Quebec Charter guarantees life, personal security, inviolability and freedom.

a.5 of the Quebec Charter enshrines respect for privacy.

However, rights can be waived, with consent.

Consent must be free and voluntary, and in many cases, informed.

The doctor-patient relationship is a contract.

Under common law, one can claim negligence or contractual liability.

Under civil law, such claims fall under (a.1458): contractual liability.

Alternatively, one can plead absence of informed consent,

or possibly, absence of consent altogether.

Failure to obtain consent:

In common law, this could be battery:

There is no need to prove injury (unlike in negligence): it can be quite trivial interference.

Nor is there any need to prove causation.

However, the plaintiff has to prove intention. Battery must be intentional.

Fault is presumed, but can be rebutted by the defendant.

Therefore, the defendant can plead absence of intention or absence of negligence (i.e., fault).

Battery is especially used in cases where:

there is a total lack of consent

there is the wrong kind of consent (see Norberg v. Wynrib)

or

where consent was obtained through misrepresentation.

Reibl v. Hughes (1980), 114 D.L.R. (3rd) 1 (SCC). (CB1p478)

Jurisdiction

Ontario

Facts

During surgery on his carotid artery, Reibl suffered a stroke which left him paralyzed on one side. Although Reibl had consented to the surgery, he claimed that he had not been fully informed of the risks, and sued for negligence and battery.

Issues

Could the doctor be held liable for battery?

Holding

No.

Ratio

Laskin CJC: Consent is an adequate defence to battery; in medical cases, battery should only be claimed when there was no consent at all. Cases of uninformed consent should fall under negligence. Laskin CJC acknowledged that battery has

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