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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 45 / 64

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

friends and relatives

employers

community

In civil law, if the immediate victim is dead:

The CCLC rules for this were similar to common law at the time: recovery was limited to victimes par ricochet who had a close relationship with the immediate victim.

(a.1056,CCLC) limited recovery to spouses and ascendant and descendant relatives only.

Nor did civil law allow any claims for solatium doloris during this period.

(a.1056,CCLC) came from an English statute, and judges used common law principles to interpret it. Traditionally, before the CCLC, civil law had not limited recovery in these ways. Academics criticized (a.1056,CCLC) as a historical mistake.

Under the CCQ, (a.1056,CCLC) was removed entirely from the code.

In Augustus v. Gosset (see p.5), L’Heureux-Dubé J discussed the issue of solatium doloris at length, pointing out that (a.1056,CCLC) was a historical mistake. She found that “compensation for the grief felt when someone close to us dies…is clearly consistent with the civil law’s full recognition of moral damages.”

In awarding solatium doloris, L’Heureux-Dubé J said that courts should consider:

the circumstances of the death

the age of the child and the parents

the relationship between the child and the parents

the parent’s ability to cope with the death

the presence of other children or the possibility of having more children

Civil law accepts all kinds of claims from anybody—not just parents.

These can cover psychological injury, consortium et servitium, etc.

Civil law prefers to use causation as its main way of limiting claims.

In civil law, if the immediate victim is still alive:

Régent Taxi & Transport v. La Congregation des petits-frêres de Marie [1929] SCR 650. (CB2p64)

Jurisdiction

Quebec

Facts

Brother Henri-Gabriel was injured in an accident caused by Régent Taxi. His religious community sued for (1) medical expenses, (2) property of the community destroyed in the crash, and (3) damages for the loss of Brother Henri-Gabriel’s services.

Issues

Did the religious community fall within the meaning of the word “autrui” (“another”) as used in (a.1053,CCLC)?

Holding

Yes.

Ratio

Anglin CJC made a textual argument: He found that “autrui” (“another”) in (a.1053,CCLC) article included everyone. He rejected the argument that, in order to give meaning to (a.1056,CCLC), (a.1053,CCLC) could only respond to claims by the immediate victim. Instead, Anglin CJC adopted the view that (a.1056,CCLC) provides special limitations on liability when the immediate victim is dead. Anglin CJC appears to have been wary of limiting (a.1053,CCLC), because all civil liability in Quebec depends on it.

Comments

Two judges from Quebec dissented!

Hôpital Notre-Dame et Théoret c. Laurent, [1978] 1 SCR 605. (CB2p95)

Jurisdiction

Quebec

Facts

Mme. Laurent was injured while curling. She went to the hospital emergency room where she was treated by Dr. Théoret. Dr. Théoret didn’t do any X-rays, and negligently failed to detect the fracture in Mme. Laurent’s femur. Mme. Laurent sued the doctor and the hospital, and her huband also sued for medical fees and costs, care given to his wife, and “loss of consortium.”

Issues

Did M. Laurent also have a claim as “another” under (a.1053,CCLC)?

Holding

Yes.

Ratio

The court reviewed previous cases, including Régent Taxi, and came to the same

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