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

Khoury thinks this could have been a good case for novus actus interveniens, since the disease was unforeseeable by defendants, but they didn’t argue it. So the court just used the disease to discout damages.

(I think the confusion is due to the fact that the injury wasn’t really indivisible: one could separate the three years where Jobling was able to do light work; there could be apportionment of liability?)


Placing the Victim Under Scrutiny

In civil law, this issue is part of causation.

In common law, this is a “defence” available to the defendant.

For a long time, common law considered the plaintiff’s fault to be a complete defence. Even if the the plaintiff’s fault was relatively small, one could not recover at all.

In Butterfield v. Forrester (1807), the defendant had obstructed a street with a pole. The plaintiff was riding his horse down the street, fast, and collided with the pole. The court held that if the plaintiff hadn’t been riding so fast, he wouldn’t have gotten hurt.

Note how even common law seems to use ideas of causation here!

This rule had an individualistic basis. The ideas was that if the plaintiff was at fault, he did not deserve compensation.

At this time, common law courts had to choose only one cause of the damage—multiple causes were not recognized.

In the 20th century, common law acknowledged that this position was unfair, and the legislatures (England and Canadian provinces) adopted Contributory Negligence Acts.

This was due to the influence of civil law.

This was also due to the role of insurance: defendants are more often insured than plaintiffs.

Common law approaches this issue in two steps (s.3 of Ontario’s Contributory Negligence Act):

1. assess the entire amount of damages

2. separate

Civil law never had a problem accepting apportionment of liability between defendant and plaintiff.

The CCQ calls this “faute commune” (a.1478 al.2).

Prof. Khoury doesn’t like this term, because it appears to imply that the two faults were part of the same act or event.

If the plaintiff is at fault, there are two options:

1. apportionment

2. novus actus interveniens

(“voluntary assumption of risk” is also an option, but it doesn’t fit with the others, because it doesn’t necessarily involve fault on the part of the plaintiff.)

apportionment: This means apportioning liability between the plaintiff and the defendant, just as one would apportion liability between two defendants.

The victim’s fault is assessed the same way a defendant’s fault would be: the reasonable person standard is applied (and common law of course also uses the B/P/L analysis).

Courts are lenient with regard to victims’ behaviour in emergency situations.

Causation must be proven.

The classic example of fault without causation (in a jurisdiction without a no-fault auto insurance scheme) would be if the victim of a car crash (not at fault) was driving without a licence. This would not reduce the liability of the defendant who caused the crash.

Liability is apportioned the same way it would be apportioned between two defendants: according to the seriousness of the fault.

This is confirmed by (a.1478) as well as Contributory Negligence Acts.

Ontario’s Contributory Negligence Act provides for a 50-50 split in cases where one is not able to assess the seriousness of the fault.

This is a purely factual question.

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