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


1. Wilson J. noted the common law distinction between “misfeasance” and “nonfeasance,” but pointed out that nonfeasance can be a basis for fault in a growing number of kinds of relationships. In this case, she relied on Jordan House v. Menow and other case of intoxicated people to find “a duty not to place another person in a position where it is foreseeable that that person could suffer injury.” It also seems relevant that the injury took place on Sundance’s land and that Sundance was profiting from the risky competition.

2. It was unclear whether Crocker had assumed the physical risk because he was so drunk when he entered the contest. However, it was very clear that he had not assumed the legal risk, because he was not even aware of the waiver he had signed. Wilson J. said that volenti is a complete defence, and is now rarely used in cases where the defendant’s fault is clear—but Prof. Khoury said that volenti was no longer necessarily a complete defence.

3. No reasons were given, but Crocker’s fault was held to have contributed 25%.

Both systems thus impose a duty to rescue, but in particular circumstances.

Civil law has no problem articulating a general duty to rescue.

a.2 of the Quebec Charter gives people whose lives are in danger a right to be rescued, and imposes a general obligation to rescue.

However, this obligation is qualified:

1. if there is a “risk” to the rescuer or to a third party

2. for any “reasonable motive”

There hasn’t been any case law on this point, so it’s very vague.

3. by the fact that someone’s life must be in peril

Someone without a medical background may not be able to judge this.

The history of a.2 of the Quebec Charter is bizarre. It originates in a Vichy French law which made it a crime to fail to prevent a crime causing bodily harm. This law was designed by the Nazis to target members of the French resistance. After the war, the French adapted it to their criminal code (making it a crime not to rescue someone in danger), and it later spread throughout Europe.

(a.1457) is also considered by some to be a source of the duty to rescue, because it imposes a general standard of behaviour.

Specific civil law statutes impose the duty to rescue in certain situations:

Loi sur la santé et services sociaux

Code de déontologie des médecins


In common law, omissions are a duty of care issue. There is no general duty of care for omissions.

However, various relationships have caused courts to impose a duty to rescue:

parents children

doctors patients

employers employees

occupiers invitees

any situation of authority, control or supervision:

teachers pupils

jailer prisoners

any situation where the defendant derives commercial benefit from the plaintiff:

This has been extended the problematic case of bar owners and their intoxicated clients (still on premises, or after ejected).

This is mainly supported by Jordan House v. Menow, [1974] S.C.R. 239.

Murphy v. Little Memphis Cabaret Inc., [1996] O.J. No. 4600. (CB2p25)




Murphy and Cairns were at the Little Memphis Cabaret near closing time when they

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