McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
Otherwise, “If the law permitted apportionment between tortious causes and non-tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant’s negligence was the sole cause of the injuries…Defendants could frequently and easily identify non-tortious contributing causes, so plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury.”
Note: The two car accidents were considered as one accident for legal purposes—there was no attempt to separate these causes.
Note: The stretching at the gym was held to be perfectly normal, so it wasn’t considered in the analysis.
The trial judge had found that the accidents contributed 25% of the injury. Why didn’t the SCC then follow the trial judge in discounting the damages by 75%? Major J says that if there had been evidence that the disc herniation would have happened even without the car accidents, he might have done this. But there was no way to determine whether the disc herniation would have happened anyway. This seems to confirm the principle that the court assesses what the plaintiff’s life would have been like without the accident.
In England, courts have started to argue that it is unfair to the defendant not to discount damages in such cases, but this is still the common law in Canada.
Scenario 2: If the fault precedes the non-faulty event:
The difference between this scenario and the first one is that the non-faulty event could be held to be a novus actus interveniens, but this is rare.
In both systems, if the fault has allowed the non-faulty event to occur, then the non-faulty event cannot be a novus actus interveniens.
Baudouin J says that any event that was foreseeable, connected or preventable cannot be a novus actus interveniens.
In common law (and French civil law), a non-faulty event can be considered a novus actus interveniens if it was not reasonably foreseeable and thus could not have been prevented.
In (Quebec) civil law, a force majeure breaks the chain of causation.
(a.1470) says that a force majeure must be unforeseeable and irresistible.
However, both systems of course consider the non-faulty event at the stage of assessing damages.
Jobling v. Associated Dairies Ltd.,  2 All ER 752 (H.L.). (CB2p180)
While working for Associated Dairies (and as a result of their negligence), Jobling slipped a disc. After this, he was only capable of light work. Three years later, Jobling was diagnosed with cervical myelopathy, unrelated to the accident, which made him incapable of working at all.
Did Associated Dairies have to keep paying damages for Jobling’s partial incapacity, now that he was suffering from a total incapacity?
Lord Keith of Kinkel distinguished this case from other cases involving two tortious acts. In a case like this one, he said, courts should consider the “vicissitudes” principle, i.e., they should take other accidents and vicissitudes of life into account when assessing damages. “In the case of supervening illness, it is appropriate to keep in view that this is one of the ordinary vicissitudes of life, and when one is comparing the situation resulting from the accident with the situation, had there been no accident, to recognize that the illness would have overtaken the plaintiff in any event, so that it cannot be disregarded in arriving at proper compensation, and no more than proper compensation.”
Jobling is the leading case on the calculation of damages resulting from a faulty cause and a non-faulty cause.