McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
Globensky, the last occupant of the building, to contact the city and have them turn off the water. The city engineers came; they turned off the water for part of the building, but before they could finish, their shift ended. The next shift of engineers came an hour and a half later. They did not see Globensky, who was waiting inside, so they left. Caneric did nothing for the next six days. Then the weather got colder and another pipe burst, which completely flooded the neighbour’s basement.
Did the fault of both the city and Caneric cause the damage?
Baudouin J held that there were three faults:
1. Caneric’s fault in not securing its building for the winter
2. the second team of city engineers’ fault in leaving without fixing the problem
3. Caneric’s fault in doing nothing for the next six days
He said that civil law jurisprudence generally asks first whether the injury was a “direct, logical and immediate” consequence of the fault (adequate causation), and then second whether the author of the fault could have reasonable foreseen the injury.
He found that the second and third faults were determinative; the first fault, although logically connected to the injury, was too distant in time to be considered a direct cause of the injury. He therefore held the city and Caneric to be solidarily liable, with each having a 50% share.
The judge must decide whether one fault will cancel the other and be held as the sole cause.
“apportionment” or “division” of liability:
If the injury is divisible (two separate injuries), each defendant is liable for the injury she caused (in both systems).
This is also used when the second injury aggravated the first one.
Solidarity is considered to be unfair to the defendants (at least to the solvent one).
The apportionment of liability depends only on the causal role of the two faults, not on the severity of the faults. (Note that (a.1478) is only for single, indivisible injuries.).
Common law uses the same approach, although statutes often modify it.
Coutellier v. Hervieux,  C.S. 240. (CB2p169)
Hervieux’s car was struck from behind by Johnston’s car. Hervieux lost consciousness, and his car stopped on the highway. Two minutes later, Lavoie crashed into Hervieux’s car. Vallée, one of Hervieux’s passengers, was seriously injured through all of this. But because no one had examined her between the two collisions, it was impossible to know how much of her injury had been caused by the first collision and how much by the second.
Could Johnston and Lavoie be held solidarily liable?
Mayrand J held that these were two separate faults, causing two separate injuries. One fault aggravated the injury caused by the other. Solidarity should not be allowed just because the faults happened close together in time. He divided liability 50-50.
Mayrand J made a distinction between cases where the combination of two delicts causes one injury, and cases where two simultaneous delicts cause two injuries to the same victim. He held this to be a case of the latter, even though he admitted that it might be impossible to determine which parts of the injury to attribute to each fault.
This is a tricky case; one could also argue that the faults were cumulative.