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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 53 / 64

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

Issues

Was the presence of the spike the direct cause of the injury?

Holding

No.

Ratio

Bissonnette J held that for a thing to be the direct cause of an injury, it had to play an “active” role. In this case, the breaking of the chain was the direct cause, and the spike was indirect.

Comments

It doesn’t seem to make sense that the court didn’t use “plurality of causes” and apportionment.

Prof. Khoury gave us this case to read in order to critique it—not to state the law.

In the common law doctrine of foreseeability, there’s also the question of whether the injury was a probable result or a possible result.

In Wagon Mound 1, the court required that the injury be a probable result (i.e., >50%).

In Wagon Mound 2, the court changed its mind and said that it would be enough to be a possible result.

The civil law courts have also used foreseeability, but usually as a second step.

Brisson c. Potvin, [1948] B.R. 38. (CB2p140)

Jurisdiction

Quebec

Facts

Potvin parked his truck so that it blocked the sidewalk on one side of a narrow street in Chicoutimi. Pedestrians had to walk on the street to get around it. A six-year-old girl was hit by a car while walking around the truck.

Issues

Was Potvin’s fault in parking his truck like this the cause of the girl’s injury?

Holding

No.

Ratio

Pratte J began by saying that causation is a difficult concept. He said that causation is only direct if the injury is the “logical consequence” of a fault. And he says that a the logical consequence of an act or omission is that which is “normally foreseeable.” (It therefore seems to follow that that which is foreseeable is direct!)

Pratte J went on to say that if, between a fault and an injury, another fault is committed by a third party, which is “normally unforeseeable” by the first wrongdoer, this fault prevents the first wrongdoer from being the cause of the injury. In this case, although Potvin could have foreseen the carelessness of a child, he not have foreseen that there would be children in this particular street (!).

St-Germain J, dissented on Pratte J’s factual assumptions. He said that all kinds of people could be expected to walk down the street. St-Germain J reserved his use of foreseeability for his determination of fault: He said that it was not necessary to find that Potvin had to have foreseen that the accident; it was enough to find that he could have foreseen the accident. St-Germain decided causation on the basis of the but-for test.  

Comments

Pratte J’s opinion does not represent mainstream civil law.

Note that the different judges’ opinions in Brisson line up with the opinions described in the Starck piece

Civil law courts sometimes express opposition to using reasonable foreseeability to assess causation.

In Joly c. Ferme Ré-Mi, [1974] C.A. 523, Kaufman J used foreseeability, and Gagnon J protested, seeing this as an import from common law.

However, the historical origins of the foreseeability test are uncertain.

Note, however, that the Caneric case explicitly introduced a foreseeability requirement.

Conaghan and Mansell, The Wrongs of Tort, pp.62-72. (causation)

Conaghan and Mansell find the foreseeability test “shamefully unpredictable.” They contrast the results of Bradford v. Robinson Rentals (1967) with the results in Tremain v. Pike. In the former case, an employer’s fault in forcing his employee to drive in an unheated truck was held to have caused the employee’s frostbite.

The Wagon Mound 1 rule that the damage must be of a kind that was reasonably foreseeable conflicts with the “thin skull rule” of Smith v. Leech Brain & Co.

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