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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 61 / 64

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

Courts apportion damages according to the seriousness of the fault rather than causation because causation is too hard to assess.

Baudouin disagrees with this position, and thinks that courts should use causation, because assessments of fault are even more arbitrary.

Baudouin thinks that courts don’t consider causation seriously enough, partly because it does not play a role in the apportionment of damages. He thinks that courts should at least assess causation seriously when finding whether or not there is liability.

When there is more than one defendant, the defendants will be held solidarily (or jointly and severally) liable, and the plaintiff will also be held liable.

Fitzgerald v. Lane, [1998] 2 All ER 961 (H.L.). (CB2p190)

Jurisdiction

England

Facts

Fitzgerald was crossing the street against the lights. He was hit by one car and thrown into the path of another car. Both cars were speeding. Fitzgerald was paralyzed.

Issues

Could liability be apportioned between Fitzgerald and the two drivers?

Holding

No.

Ratio

The High Court judge had erred in finding that Fitzgerald and the two drivers were equally responsible, and that each should thus be responsible for one-third (Fitzgerald recovering two-thirds of the total damages). Lord Ackner said that “Apportionment of liability in a case of contributory negligence between plaintiff and defendants must be kept separate from apportionment of contribution between the defendants inter se.”

First, the judge must determine whether the defendants are liable;

second, the judge must assess damages;

third, the judge must decide whether the plaintiff contributed to the damage;

and fourth, the judge must decide to what extent the damages should be reduced in order to account for the plaintiff’s “share.”

In this last stage, the plaintiff’s conduct must be compared to the totality of the defendants’ tortious conduct.

These can’t be all lumped together as one.

Using this procedure, Lord Ackner   

This case was affirmed by the SCC in Ingles v. Tutkaluk (2002) for Canadian common law.

It also seems consistent with civil law principles: Prof. Khoury thinks one could plead this for civil law.

When there is one defendant, but more than one plaintiff:

This tends to arise in cases where a child is the plaintiff, so both child and parents suing, as in Gaudet c. Lagacé (see p.Gaudet c. Lagacé, [1998] R.J.Q. 1035 (C.A.). (CB1p371)22).

The damages awarded to the victime par ricochet are discounted at the same rate as the immediate victim’s claim.

This is based on the assumption that victime par ricochet will not sue the immediate victim (usually a safe assumption when the immediate victim is a child).

novus actus intervieniens:

Sometimes the victim’s fault will constitute a novus actus interveniens and completely exonerate the defendant, but this is rare.

This depends on the usual considerations: fault, causation, etc.

Girard c. Hydro-Québec, [1987] R.R.A. 80 (C.A.). (CB2p186)

Jurisdiction

Quebec

Facts

Girard saw that a short circuit had set fire to a hydro pole, leaving a wire hanging dangerously low (about 8 feet) over a low-traffic country road. He went to a store and phoned Hydro-Québec to warn them. On his way back, he saw that the wire had dropped even further, and was now hanging four or five feet above the road. He parked his car and tied a plastic bag to the wire so that drivers would see it. As he was returning to his car, the wire moved and touched him and he was seriously injured by

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