Extra- Contractual Obligations Summary – April 2005 Kirk Shannon
ECO/Torts - SUMMARY 2005
Adaptation of Toby Moneit’s Summary
IV. The Appropriate Scope of Responsibility......
A. Acts and Omissions
Crocker v. Sundance Northwest Resorts
Muphy v. Little Memphis Cabaret Inc.
T. Eaton Co. of Canada v. Moore
How the Law encourages Rescue
B: Delineating a Duty of Care
Home Office v. Dorset Yacht
Anns Test
Anns v. London Borough of Merton
City of Kamloops v. Nielson
Cooper v. Hobart
Palsgraf v. Long Island Railway Co.
C: Relational Loss – “secondary” victims – emotional Loss......
Régent Taxi v. Congrégation des petits fréres de Marie
Hôpital Notre Dame de l’Esperence
Nervous Shock in the common law:
Alcock v. Chief Constable of South Yorkshire Police
D: Injury to Economic Interests
D’Amato v. Badger
André Elliot v. Entreprises Cote-Nord Ltée
Weller v. Foot in Mouth Disease Research Institute
J. E. Construction inc. v. General Motors du Canada
V: Causation......
A: Scope of Risk
Re Polemis and Furness Withy and Co.
Foreseeable manner/sequence/damage......
Wagon Mound 1, Overseas Tankship v. Morts Dock & Engineering
B: Directness vs. Forseeability
Brisson v. Potvin
Morrissette v. McQuat
Graziella Joly v. La Ferme Ré-mi Inc.
Foreseeable type of damage......
Hughes v. Lord Advocate
Thin Skull......
Smith v. Leech Brain & Co. Ltd.
C: Multiple Wrongdoers and Multiple causes
1) Plurality of Established Causes......
Q. et al v. Minto Management Ltd.
Deguire Avenue Ltd v. Adler
Caneric Properties Inc. v. Allstate Compagnie D’assurance et Ville de Montréal
Price v. Milawski
2) Subsequent Events and Aggravation of Injuries
Athey v. Leonati
D: Placing the Victim/PL under Scrutiny
i) Predisposition of the Victim and Thin Skull......
Psychological susceptibility and particularities......
Marconato v. Franklin
ii) Victim’s Behaviour
Gaudet v. Lagacé
Girard v. Hyrdo-Québec
Crocker v. Sundance Northwest Resorts
Waldick v. Malcolm
VI: Fundamental Rights and Civil Responsibility......
Seneca College v. Pushpa Bhadauria
Béliveau St-Jacques v. FEESP
VII: Limits of the Private Law......
A: The Responsibility of Public Authorities
Prud’homme v. Prud’homme
B: Family and the Private Law
Dobson v. Dobson
Immunity of the family
J. v. J.
VIII Conclusions......
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Extra- Contractual Obligations Summary – April 2005 Kirk Shannon
IV. The Appropriate Scope of Responsibility
A. Acts and Omissions
The Duty to Assist/Rescue
-Liability in private law for failing to come to the aid of another?
Language of Omission: Not just failure to take care (Dv.S, PvS). Not a failure in action. Here we are talking of non-action. Non-feasence rather than malfeasance. Failure to act at all rather failure in one’s action.
- Misfeasance – doing something wrong = failing to take proper precautions.
- What is problematic is “pure omissions” or “nonfeasance.” The law is cautious about imposing such a duty. We relegate this discussion to morality (charity, benevolence).
-Law is shy to impose duty in case of Pure Omission.
-Difference b/n Civil and Common. In CL, no duty. In Civil, one is liable.
-Law prefers to put this into the box of the moral obligation. Look back to the parable of the good Samaritan.
-There is very little case law. Hard to ID the person who is responsible for the harm.
So What’s the Problem
-Law limiting individual freedom. It is different to impose duty not to harm than to impose duty to look out for others. It is not there in the actions of the D. In Economic terms (Posner) – inappropriate allocation of resources. This would be too much invested in our responsibility to help others.
How far would the Duty Go?
-How much is enough? Are you responsible to charities, or to give certain amounts. How would that be said in law? Idea of a slippery slope
Problem of Causation
-In what sense can we say that my failure to help is the cause of someone’s injury? In a sense, injury would have happened anyway.
How do we fit this with FAULT?
-We can fit with reasonableness but is hard to fit with fault.
Major sources for the Law
-Art 1457
-Neighbour Principle with an eye to Civil Law jurisdictions. Discussion of Van Gerven in Liability for mere Omissions.
Reference is always made in legal writing on this topic to the parable of the Good Samaritan. Can we reflect the story of the Good Samaritan in the law? Can the law impose liability if we don’t act like this (i.e. consequences for not doing it)? This can be problematic because:
1)Political theory/philosophical perspective – Problem of imposing liability that limits individual freedom. It is problematic to impose a relationship – to “mind someone else’s business”.
2)Economic perspective – This imposition would impose inappropriate allocation of resources – it would be wasteful to always be watching out for each other and be trying to improve each other’s situations.
3)Slippery slope argument – Where do we stop imposing this obligation? Example: can we be forced by law to donate to Oxfam?
4)Technical legal perspective – How do we find a causal link between failure to help and the injury?
5)Fault basis of the law – Even if we say there is an obligation, how can we say that there is a fault when we omit? Can we introduce reasonableness? And then, what happens to the obligation? Must come to the aid of people in trouble but must only act reasonably. As soon as we say this, we are dropping the idea of Good Samaritan since he didn’t act reasonably – he went out of his way.
Differences:
- Civil law doesn’t make this distinction b/n misfeasance and nondeasance. Civil law assumes obligation and looks at fault right away. 1457’s approach is that you should act because a reasonable person would help out and in failing to do it, you have acted with fault.
Common Law
- Common law insists on the difference between misfeasance and nonfeasance since nonfeasance is carved out of responsibility. Common law examines obligation first. “Mind your own business” philosophy of the common law – this isn’t a situation you created so you have no obligation to the person. So we never get to question of reasonableness – no way to turn it into a tort.
- Mere Omission with no consequences has been narrowed.
Van Gerven’s essay outlines resistance of English CL to impose liability for mere omissions. He then outlines some of the special relationships that will impose such liability.
-There has been an increase in the number of Special Relationships that bring with them a duty to act. Historically comes from relationships always being defined in relation to another. Examples that require positive conduct for the benefit of another:
- Parent and Child, Teacher and Student, Property owner and visitors….
-CL describes particular situations and creates Special Relationship that requires positive acts for the benefit of another.
- Running an event, creation of a danger, putting people at risk (see Sundance)
Crocker v. Sundance Northwest Resorts
Jurisdiction / CL Canada [1988] SCC – Wilson J.Facts / - Crocker gets drunk and insists on entering a tubing competition that was organised and promoted by Sundance. Gets thrown off the tube and is paralysed.
Issues / Did Sundance owe a duty of care to Crocker. What was that duty?
Holding / Yes - Sundance did owe a duty of care to stop Crocker from tubing. Find for Crocker.
Ratio / When a ski resort establishes a competition in a highly dangerous sport and runs a competition for profit, it owes a duty of care towards visibly intoxicated participants. It failed to meet its standard of care in allowing Crocker to compete.
-Sundance pays, organises, supplies drink, has knowledge of drunk, does nothing
-Set up this inherently dangerous activity in order to promote its resort and they provided liquor.
-Fact that Crocker was irresponsible and voluntarily intoxicated was the very reason why Sundance was legally obliged to take all reasonable steps.“The Pl’s inability to handle the situation in which he or she has been placed – either through youth, intoxication or other incapacity – is an element in determining how foreseeable the injury is.”
-Must look at these questions: (1) Did Sundance owe a duty of care to Crocker? (2) If a duty existed, what standard of care was required and was the standard met? (3) Did a failure to meet the standard of care cause the harm suffered? (4) Did Crocker voluntarily assume the risk? (5) Can Sundance rely on the waiver as a contractual defense to the tort claim? (6) Was Crocker contributorily negligent?
Notes: / - Turned into a special relationship. No longer a simple bystander. It is so b/c of the knowledge brings with it some control of the situation.
Van Praagh on Sundance
- How important is the fact that Sundance is getting profit? Not clear.
Muphy v. Little Memphis Cabaret Inc.
Jurisdiction / Ont C. of Justice, Windsor [1996] – Zuber J.Facts / Fight in a tavern b/n two groups. One group ejected through the back door and, at the same time, other group ejected through the front door. Back door group went around front and beat front door group of which PL was a member.
Issues / Did tavern owe a duty of care?
Holding / Yes – Little Memphis Cabaret failed in their duty of care. Exposed patron to unreasonable risk of harm.
Ratio / The tavern-keeper had a duty to exercise reasonable care in expelling a patron where the danger that awaits is imminent and originated with the tavern.
-Tavern owed Murphy a duty of care to not send both fighting groups out at the same time. Duty of care would extend to next destination or home. Should have kept them in the bar, called a cab or police. They knew they could have prevented the harm.
Van Praagh on Murphy
-If you know and you can prevent the harm then this changes a lot. Ability to prevent the harm is important.
-One might argue that the CL is moving towards more civilian approach…or not…
Civil Law
Imposition of a duty through an explicit rule. Art 2 of the Quebec Charter Right to assistance when life is in peril.
Art 2 of Quebec Charter / Every person whose life is in peril has the right to assistanceEvery person must come to the aid of anyone whose life is in peril, either personally or by calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or to a third person, or he has another valid reason.
Calling for help might be appropriate or enough. A violation of this article would be a violation of Art 1457
-Other CL jurisdictions have similar, eg. Vermont.
-Would 1457 cover it on its own? Note in Eaton v. Moore, no question of life in danger, but 1053 does include some obligation to assist.
T. Eaton Co. of Canada v. Moore
Jurisdiction / SCC Que [1951] Rinfret CJ, Taschereua J.Facts / - Pl slips on lotion that was on the floor of Eatons which was there b/c another customer had dropped a bottle of lotion on the floor a minute before.
- Employee acted quickly to alert maintenance but stayed behind his counter.
- PL states she was forced to retire early b/c of injury even though she did not have to go to hospital
Issues / Is Eaton’s/employee responsible for failure to act? Was there a duty to act which was neglected
Holding / NO – Find for Eaton’s. Appropriate diligence was done. System of protection was adequate.
Ratio / - Duty to act exists only if the accident is foreseeable
- Moral obligation is not enough. Legal ob is different,
- System of notification of emergencies was adequate and reasonable.
Dissent: / Estey and Cartwright:
- Focus on special relationship as owner of department store and patron. Clerk should have done more. He had a duty to warn the PL
- Vicarious liability for lack of proper training would be held otherwise.
Van Praagh on Eaton
-Estey and Cartwright take somewhat of a CL approach as they emphasise the relationship of running a store. This is not a Civil idea. Both say, you owe patrons an obligation to assist them to avoid harm. “Easy to do something”
-Majority says the employee did nothing wrong b/c he followed Eaton’s rules – this is actually not the point.
How the Law encourages Rescue
A) Narrowing of the “pure omission” category – i.e. expand situations in which one owes a duty of care. This is done in the common law.
1)Status of relationship of Pl and D – example: parent-child relationship, parent has positive duty to assist and make the question better. The common law has increased the list of “special relationships.” Ogo Pogo (1971, SCC): passenger jumps off boat. Since the Captain invited those people onto the boat, he owes duty to them – special relationship. The common law does not characterize this as a pure omission.
2)Situations in which special relationships arise
a)controls and supervises situation (as in Crocker, encouraging people to do the competition and to get drunk),
b)creation of situation (also Crocker),
c)profits from it economically, there is a special relationship and there is a duty (Crocker, Murphy).
d)knowledge (as in Murphy where, although there was no control or creation, the tavern-owner had knowledge of the severe antagonism and the risk of danger)
Special relationship requires awareness of the person’s condition and that they’ve encouraged in some way (see Crocker). This is an example of how we do not always jump to fault.
B) Explicit law or rule – Quebec Charter of Human Rights and Freedoms article 2 – idea of “vie est en peril” and must help unless there is a good reason not to. I.e. very narrow.
- If in breach, you are against 1457 and are liable.
- Isn’t 1457 enough to show that you have an obligation? It seems that we feel that 1457 needs a boost by using the Charter.
- Does the “vie est en peril” carve this situation out of 1457? We don’t have cases to figure this out. In theory, 1457 covers the cases where there is no life threatening situation.
(This is an area of ECO where the general ECO regime of 1457 works with another area of the law – namely the Charter in order to enhance, explain, increase, expand, or confuse the general ECO. Another area where we see this is in fundamental rights and civil liability.)
C) Other
Compensating the rescuer by Statute – like: An Act to Promote Good Citizenship of Quebec. (CBp. 27) State compensation for the rescuer should he sustain injury.
Common law – makes sure that whoever set up the situation that makes a rescue necessary owes compensation to the rescuer if that person is hurt common law understands that people will naturally rescue (for moral reasons) so it deals with compensation and liability even though people aren’t obliged to rescue.
- Quote from Cardozo J. “Danger invites rescue.” In dangerous situations people try to do things that maybe they shouldn’t to rescue. Wrong doer is responsible for the injury to a rescuer. It is within his orb of risk’
- As well, should rescuer make the situation worse and there is another injury of another, rescuer would probably not be considered a novus Actus.
- Example: Doctor that created the situation that demanded moral rescue owes compensation to the rescuer father who gave kidney to his daughter because hers don’t work because of failure of doctor.
Rules that specify no liability in case of failed rescue – targeted primarily at doctors to encourage fearless rescue.
Art 1471 / Where a person comes to the assistance of another person or, for an unselfish motive, disposes, free of charge, of property for the benefit of another person, he is exempt from all liability for injury that may result from it, unless the injury is due to his intentional or gross fault(I.e. there are ways that the law deals with this even when people aren’t obliged to be rescuers by law. The law is focused on how not to be at fault. It can’t incorporate the parable of the Good Samaritan (Does not look at biblical take of doing right, doing charity, moral).
W. Van Gerven, Tort Law, Scope of ProtectionCommon law has a general reluctance to accept unrestricted liability for “mere omissions” as opposed to “omissions in action.” The basis of this distinction is that while it is logical that I should be held responsible for the consequences of events that I have initiated, the same cannot be said of harm which results from a chain of events I have not unless special circumstances arise.
Summary Questions
1)Do you have a duty of care to this person (situation of control, knowledge, etc)?
2)What is the standard of care owed?
3)Did you meet the standard of care? If not (by omitting), you are at fault
B: Delineating a Duty of Care
Is the obligation to act appropriately to another person a normative commandment….or….is it relational. Does it depend who the “other” is? Is it said how one should act to further one’s own ends so as not to harm another – but – only in particular situations is the breach of the obligation a ground for imposing a debt.
Is the obligation best understood as prescriptive or is it relational?
Civil Law
Art 1457 sounds very prescriptive. “Other” is not based on who the “other” is.
Common Law
There won’t necessarily be responsibility of the D vis à vis the Pl. There must be an obligation/duty of care to the Pl to find responsibility. Even if D did something wrong that caused an injury, there may not be responsibility of the D if the result was too crazy or there was an intervener or the Pl acted in a particular way.
Neighbour You must take reasonable care to avoid acts which could reasonably foresee to be likely to injure another…..
- Discussion of likelihood which brings back to Bolton v. Stone iterated by Lord Reid
- Neighbour (according to Atkin) is persons so closely related to my act that I should reasonably have……
- D v. S. stands for neighbour princ…but also stands for….. Manufacturer owes an obligation to take care in the manufacturing of products to the consumer not in a contractual relationship. Thus D.v.S is significant w/out neighbour principle.
- In effect it is a relationship(consumer and manufacturer) that is the focus of this case.
Don v. Steve, 1932 – Ratio: Manufacturer owes duty to take care with respect of products vis à vis the consumer. Broadly read it stands for the neighbour principle.
- He says that the various relationships are just examples, he wants to open it up and articulate a rule.
- He then translates the Biblical rule of loving the neighbour into law as not injuring the neighbour. “Who is my neighbour?”
- Lord Atkin limits the ground of the moral imperative – limits potential scope of individual obligation. And left questions open like “closely and directly”, “contemplation,” etc. Hedley Byrneand Dorset Yacht reform Donoghue v. Stevenson
Duty of care shaping liability. These tools DO NOT exist in Civil Law….but you have other tools that will do this.