McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
Was Girard’s fault serious enough to constitute a novus actus interveniens?
L’Heureux-Dubé JA held that Girard’s fault was so great as to be the only effective cause of the injury. Although Hydro-Québec’s fault had a role, it was insignificant. The chain of causation was broken.
voluntary assumption of risk: This means that the victim acted in such a way as to accept the risk of suffering an injury.
In common law this is called “VAR,” “volenti non fit injuria,” or simply “volenti.”
in civil law, this is called “acceptation des risques.”
In early 20th century common law, volenti was a very broad defence. When courts found it, it was a complete bar to recovery.
Now, it is not necessarily a complete defence; it could lead to apportionment. This parallels the newly-allowed apportionment that for contributory negligence.
Mere knowledge of a risk is not enough. The risk must have been accepted. (See Waldick v. Malcolm, p.17)
The courts have become more and more restrictive in their application of volenti. Crocker v. Sundance is an excellent example. (See p.40)
For volenti to work, the plaintiff must have assumed both the physical and legal risks.
The physical risk means the actual danger of injury.
The legal risk means waiving one’s rights to sue.
This is hard to prove unless the plaintiff has signed something.
Historically, many cases were about drunk drivers and their passengers. (During a time when there was no specific regime for auto accidents.) In most of these cases, the passenger was also drunk, so it was difficult for the courts to find volenti. Volenti can really only apply to drunk driving cases when the passenger and driver jointly planned out their reckless adventure while still sober.
Civil law has always considered “acceptation des risques” (at least since the 19th century). For this to apply, civil law requires:
1. knowledge of danger or risk (implicit or explicit)
This is an objective test: if a normal person would have known of the danger, the plaintiff should have known.
Prof. Khoury thinks this is the same as in common law.
2. free and informed acceptance of the risk
Civil law doesn’t separate the physical and legal aspects, but of course both are relevant.
The legal aspect would be complicated by (a.1474 al.2): One can’t exclude liability for bodily or moral injury.
“Acceptation des risques” is not a complete defence; it leads to apportionment.
Some jurists think acceptation des risques should exonerate the defendant altogether.
Voluntary assumption of risk is not argued very much in either system, because it’s easier to prove fault or contributory negligence than voluntary assumption of risk, and both can lead to apportionment.
Last term was about attributing liability. This term is about limitations and restrictions on liability:
duty of care (common law)
indirect victims: PEL, psych injury
Civil law does not have a direct equivalent, but it expresses many of the same ideas under causation
legal causation (also called “remoteness” in common law)
directness v. foreseeability
thin skull as an exception