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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 8 / 64

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

24/9/02

Limits of Recovery

Article 823 of the German Civil code (BGB) says: “Anyone who intentionally or negligently injures the life, body, health, freedom, ownership or any other right of another in a manner contrary to law shall be obliged to compensate the other for the loss arising.” (emphasis added)

Compare this to (a.1457) of the CCQ: it does not enumerate the kinds of interests the law protects. All interests are protected (in theory).

In common law, there are specific torts (“heads of damage”).

However, negligence can apply to any kind of injury (in principle).

In practice, some kinds of injury are seen as problematic. Why?

1. “floodgates”: a fear of liability to the whole world; a belief that the judicial system should not burden individuals, itself, or society too much.

2. The impossibility of assessing damages. This usually does not stop courts, as with non-pecuniary damages, but it is an obstacle in other kinds of cases (e.g., wrongful life cases).

3. In some cases, compensation would contradict public policy or values, e.g., wrongful pregnancy cases. This reasoning does not rely on strictly legal principles.

Some of the kinds of injury that are problematic are:

pure economic loss: This is indirect economic loss, caused by fault committed against another (primary) victim, e.g., power failure caused by an accident.

Common law objects to this because of:

floodgates

uncertain duty of care

Civil law has no problem with pure economic loss, although at some point it will rule that the chain of causation is too weak.

psychiatric damage: This refers to indirect psychological effects of a fault committed against another (primary) victim, e.g. when a passerby sees someone killed in an accident and is traumatised.

Common law objects to this claim because of:

floodgates

the problem of imaginary claims

Such claims are possible in common law, but it is necessary to prove duty of care, and the injury must be a recognized psychiatric illness.

wrongful life, wrongful birth, wrongful pregnancy:

wrongful birth: These are cases where the doctor failed to inform the parents of the risk of a birth defect, and the child was born with a disability. The parents sue, and courts tend to accept this kind of claim.

wrongful life: These are rejected everywhere. (In France, one such case was accepted by the Cour de Cassation, but then reversed by statute.)

McKay v. Essex Area Health Authority, [1992] 2 W.L.R. 890 (Eng. C.A.). (CB1p104)

Jurisdiction

England

Facts

McKay was born disabled due to rubella (German measles) which her mother had during pregnancy. She sued the doctor and the health authority on the grounds that they were negligent in not advising her mother to have an abortion.

Issues

Can a court award damages for wrongful life?

Holding

No.

Ratio

The defendants had caused no injury to McKay; her mother had contracted rubella naturally. McKay could not claim a right not to be born with deformities; the only right she could claim was a right to be aborted, and no such right exists. Doctors have no duty of care to children who may be born with deformities to give their mothers an opportunity to abort them. (They may have such a duty toward the mother, but not toward the child). To impose such a duty would be contrary to public policy, regarding the lives of disabled

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