TERM I
I. INTRODUCTION
A. The Nature and Functions of Extra-Contractual Liability
- The Distinction between Civil and Criminal Liability
a)Basic distinction: individual revenge v. state punishment.
b)Civil liability is not as concerned w/ the intention of the wrongdoer.
However, it is hard to make a sharp distinction.
c)Papadatos v. Sutherland [1987] (Quebec)
Facts
D tortured and assaulted P. D was sentenced to 10 years incarceration
Issues
Is a person liable for exemplary damages when the accused has already been punished criminally?
Reasoning
Where criminal process has been utilized, no exemplary damages can be awarded. This would be punishing a person twice for the same crime
- Conception of Civil Liability
a)Focus is on individual liability for wrongful acts. In private law, there is a link between the victim and the wrongdoer. Civil liability is in general a ‘backward-looking’ system.
b)Human Agency → Cause → Injury
c)Traditionally, civil liability is based on the notion of loss shifting as opposed to loss spreading—that is, the victim shifts his losses to the wrongdoer. Loss spreading (e.g. workers’ compensation, insurance) means distributing losses over society as a whole.
d)Questions arising as to whether civil liability should be about punishing, compensating, or deterring injury.
e)It is hard to distil tort law into a single notion.
- Historical Perspectives of Civil Liability
Viney
a)During, the Industrial Revolution, there was an increase in machine-related accidents. The accidents resulted in an increase in injury claims. In common law during IR, there was shift away from strict liability to fault- based liability. In civil law, the reverse was true: the advent of insurance policies decreased the role of fault. There was an increase in private insurance to protect workers.
b)Today, we have a no-fault system for worker-related injuries. Worker compensation schemes can be viewed as a type of insurance policy for workers injured on the job.
- Philosophical/Theoretical Perspectives on Civil Liability
a)W of T: the evolution of tort law must be looked at from a historical context. Tort law is the product of prevailing social and political values, e.g. was the shift away from strict liability to fault during IR an effort to save industrialists from bearing the compensatory costs?
b)Prescriptive v. Descriptive Theories (What is v. What ought to be)
c)Restitution in integrum: w/ monetary compensation, the law tries to restore person to their previous physical integrity.
-The idea is that the law tries to substitute lost pleasures with alternative pleasures.
d)Posner
Tort law is based on a rational cost-benefit analysis. The goal is to maximize economic efficiency.
e)Englard
Should our goal be corrective (moral responsibility) or distributive (social utility) justice?
f)Abel
1)Moral Judgment
-Rather than imposing a penalty relative to D’s conduct, damages are awarded strictly on the basis of harm.
-Insurance often protects wrongdoers.
-Settlements don’t acknowledge fault.
2)Compensation
-Victims cannot recover if they cannot prove fault.
-Many victims settle but don’t get what they deserve
-Awarding damages is often arbitrary.
-Money commodifies injury.
3)Safety
-Learned Hand Formula: tortfeasors will minimize costs instead of minimizing risk.
II. INJURY
A. Injury to Persons
In this section, we’re looking at the kinds of claims that should be protected. For moral damages, we are also looking at exactly how much a person should be awarded and under what circumstances.
- Types of Injuries:
1)Bodily (can be pecuniary or moral/non-pecuniary)
2)Material/property (pecuniary)
b)Civil Law
1)Russel v. Hite[1986]
Facts
Hite worked for Russel’s racing school and was allowed to use the racecars. While Hite is driving, he drives into a chain attached to the fuel pump, causing him to be severely disfigured. The accident has changed his life dramatically w/ regard to mental, physical and monetary (employment) suffering.
Issues
Should common law principle of bodily injuries be used in a civil law jurisdiction?
a)Can a person be awarded monetary damages, when money will likely not compensate the victim adequately for the physical and mental pain incurred?
Reasoning
Common law rules should not apply w/ regard to moral compensation. Irrespective of the degree of fault, victims must be compensated, not for punitive reasons, or as a consolation prize, but rather in recognition that they suffered very real, though non-pecuniary, losses.
2)Ouellet v. Tardif [2000]
Facts
Tardif is a priest who belonged to an African missionary. While swimming in a lake, he was hit by Ouellet’s boat and seriously injured. His employment w/ missionary is over.
Issues
Considering the extent of his injuries and the termination of his employment abilities, what is Tardif entitled to?
Reasoning
In terms of pecuniary damages, Tardif was entitled to $74 768 in potential gains (U of M professor salary). Simply b/c P did not actually receive a salary w/ the missionary, does not disqualify him from receiving compensation. He shouldn’t be punished simply b/c he chose not to take money from the missionary (this is a way of objectifying damages).
c)Common Law
1)ter Neuzen v. Korn [1995]
Facts
P was artificially inseminated by D from 1981 to 1985. P became HIV infected as a result of the procedure in 1985. It was impossible to test donors at that time, b/c the Elisa test was not available. It was also not well known that HIV could be contracted through AI (D did not read article in a journal expressing concern of the risks). When D learned that an HIV transmission was possible, he immediately discontinued AI and recommended that his donors and the appellant be tested.
Issues (for the purposes of this section)
Should the rough upper limit for non-pecuniary damages been applied by the jury?
Reasoning
The rough upper limit should not have been exceeded. The goal of awarding non-pecuniary damages is to provide the injured party reasonable solace for the misfortune they suffered. Restitutio in integrum:restoring the victim to his original position prior to the injury. Non-pecuniary damages should only be awarded to the extent that they provide an alternative source of satisfaction. Compensation of the victim, however, must be weighed against the social burden of awarding excessive damages. The rough upper limit for non-pecuniary damages was established by Andrews v. Grand & Toy Alberta Ltd. Simply b/c P suffered a severe tragedy does not justify exceeding the rough upper limit; what amount of $ could compensate her for eventual premature death?
Points: Determining moral damages is based on philosophical and social policy considerations. Compensating victims for non-pecuniary losses can be quite arbitrary (the commodification of injury—Abel).
2)Page v. Smith[1995]
Facts
D hit P’s car. P did not sustain any physical injury but he experiences a recurrence of chronic fatigue syndrome.
Issues
In order to claim damages, does P have to prove that the recurrence of his chronic fatigue syndrome was reasonably foreseeable by D?
Or, is it sufficient for P to show that any personal injury resulting form the injury was reasonably foreseeable by D?
Reasoning
The “foreseeability test” ought to be whether D could reasonably foresee his actions causing a personal injury to P (physical or mental). Since P was a primary victim, there is no need draw a distinction btw physical and psychiatric injuries. So long as personal injury was foreseeable by D, it doesn’t matter whether P suffered physical or psychiatric injury (or both). (For a secondary victim, the psychiatric injury must be reasonably foreseeable since the secondary victim is usually outside the realm of physical impact.)
Potential Problems: I) Bogus Claims
II) Opening the Floodgates
- Protected Interests: The Kinds of Claim the Law should Protect
Before you can claim for damages, you must prove an injury has indeed occurred.
a)Wrongful Pregnancy, Wrongful Birth and Wrongful Life: Valid Injuries?
1)Common Law
(i)McKay v. Essex Area Health Authority [1978]
Facts
An infant was born disabled as a result of the mother’s illness while pregnant. The doctor did not inform the mother of the risks. Had she known, she claims she would have had an abortion. The daughter sues, claiming she would have preferred not to have been born.
Issues
Can a person claim wrongful life as an injury?
Reasoning
Life does not represent an injury when compared w/ the alternative of death. A court cannot put a price tag on the difference btw life and death. To allow such a claim would be to devalue the sanctity of life. In addition, it would open up the floodgates for all persons born w/ a disability.
Point:There can be no claim for wrongful life.
(ii)Kealey v. Berezowski [1996]
Facts
A woman is sterilized because she doesn’t want any more children. She becomes pregnant, opts to have the baby and comes to love the baby
Issue
Can the mother claim for wrongful birth?
Reasoning
Since the parents have come to accept the healthy child and have the means to care for it, the mother should only be compensated for the pregnancy—i.e. ‘limited damages’ for the wrongful pregnancy.
2)CivilLaw
Suite v. Cooke [1995]
Facts
A woman is sterilized for economic reasons. She becomes pregnant and opts to have the child.
Issue
Can the birth of a healthy child represent an injury (wrongful birth)?
Reasoning
The birth of a child can represent an injury if the mother cannot afford to raise the child. In addition, everyone has the right to family planning. The benefits and responsibilities that come w/ a child do not negate the right to family planning.
Point: The definition of ‘injury’ is rooted in culture. What is a protected interest in one culture might not necessarily be a protected interest in another.
- Primary v. Secondary Victims
a)A CommonLaw Concept (definitions from W of T)
1)Primary Victim: Individuals directly involved in the accident. Primary victims can claim for psychiatric/mental injuries if:
(a)they are in the range of foreseeable physical (personal) injury (Page);
(b)they have a reasonable fear of physical injury.
2)Secondary Victim: Individuals not directly involved in the negligent act, but who are witnesses and bystanders to it. They can claim for psychiatric/mental injuries only if they can demonstrate a relationship of proximity with the defendant.
3)Alcock v. C.C. of South Yorkshire Police [1991]
Facts
The police failed to control crowd at a football match and a number of fans were trampled. Claims were brought about from relatives of the primary victims. The relatives alleged that they that suffered psychiatric injuries (resulting from nervous shock) after learning of the tragedy.
Issues
Can the relatives, who are “secondary victims,” sue?
(i)Did P fall w/in the class of persons entitled to claim?
-i.e. was P’s relationship w/ the primary victims sufficiently close such that it was reasonably foreseeable that she might suffer psychiatric injury?
(ii)Was there sufficient proximity (both in terms of time and space) btw P and the accident?
-i.e. what were the means by which the shock was caused?
(iii)Did psychiatric injury result?
Reasoning
(i)P’s relationship w/ the primary victims was close such that it was reasonably foreseeable that the harm to the primary victim, a loved one, would cause a psychiatric injury.
(ii)None of the relatives were in close proximity to the tragedy, both in terms of time and space. Learning of the disaster by watch T.V. simply does not suffice.
Point: All 3 factors must be present in order for such a claim to succeed. This is to prevent the floodgates from opening by limiting claims. The scope of D’s duty of care becomes more limited.
b)Civil Law: NoDistinction btw Primary and Secondary Victims
1)Art. 1053/1457 C.C.Q.
(i)Every person has a duty not to cause injury to another.
(ii)If the agent is endowed w/ reason, and he fails this duty, he is responsible for any injury he causes to another person (and is liable to reparation for the injury), whether the injury be bodily, moral or material.
(iii)He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or thing in his custody.
2)Augustusv.Gosset [1996]
Facts
A woman’s son is shot and killed in a police chase. She claims compensatory and exemplary damages for the wrongful death of her son.
Issues
(i)Should P receive compensatory damages for solatium doloris?
(ii)Should P receive compensatory damages for her son’s loss of life?
Reasoning
(i)The mother should receive compensatory damages for solatium doloris, i.e.injury to feelings. Solatium doloris is a moral prejudice compensable under art. 1053.
(ii)The mother should not receive compensatory damages for her son’s loss of life since the right to life ends when a person dies (after death, it is not possible to remedy the primary victim). Victims cannot transmit the extra-patrimonial right. Survivors and heirs are covered by solatium doloris.
Point: In contrast to c/l requirements, Mrs. Augustus did not need to adduce evidence of psychiatric illness. The case was decided in terms of moral damage suffered rather than proximity, closeness etc. Art. 1053/1457 C.C.Q. provides a general regime of liability.
3)HopitalNotre-Dame de l’Espérance v. Laurent [1978]
Facts
A woman was involved in an accident and taken to the hospital. The surgeon diagnosed a simple “contusion” w/o taking X rays and w/o a careful follow-up. Another surgeon later diagnosed the woman w/ a fracture of the neck. She had surgery which was made more complicated by the delay. The woman and her husband brought malpractice suits against the hospital.
Issues
Does the husband have a claim for the medical expenses he paid as a result of the misdiagnosis?
Reasoning
The husband can be compensated for medical expenses. Art. 1053 C.C.L.C says that a person who causes damage to “another” by his own fault is responsible. “Another” is not necessarily limited to the persons who suffered bodily injury (in c/l, the primary victims). Since the husband had to pay medical expenses, he is entitled to compensation.
c)Points: Civil v. Common Law
1)Civil law does not distinguish between primary and secondary victims; common law does.
2)In common law, a secondary victim has a number of things to prove in order to make a claim (see Alcock and Page).
1)Civil law is much less narrow as to the types of non-physical claims that can be made.
B. Injury to Property and Economic Interests
- Pure Economic Loss
CommonLaw
Weller & Co. v. Foot and Mouth Disease Research Institute [1966]
Facts
The research institute allows a virus to escape, causing cattle in the vicinity to become infected w/ the disease. P, who are auctioneers, were unable carry out business w/ those who suffered a loss. P argues that their loss of business was foreseeable by D.
Issues
Was P within the scope of D’s duty of care?
(i)Did D have duty to guard against pure economic losses?
Reasoning
D’s negligent act/omission did not, or even threaten to, directly injury P or P’s property. It merely caused a “consequential loss,” i.e. upsetting P’s business relations. D’s duty of care is owed to the proprietors of the infected cattle. P’s loss of profit was a pure economic loss.
Point: Common law does allow one to claim for a pure economic loss. Again, we could probably bring the floodgates argument for why this is so and argue that the auctioneers were “secondary victims” who were not entitled to claim.
- Relational Economic Losses
a)Common Law
1)C.N.R. v. Norsk Pacific Steamship [1992]
Facts
Public Works Canada owns a bridge, which they K out. CN is the primary user of the bridge. In the K, it was stipulated that CN could not sue PWC for lost business in the event that there would be damage to the bridge. A Norsk ship hits the bridge, causing it to become incapacitated for weeks. The loss of the bridge increases CN’s operational costs.
Issues
Can CN, who contracts for the use PWC’s bridge sue Norsk who damages PWC’s property, if CN suffers losses resulting from the inability to use the bridge?
-i.e. should further liability be incurred to someone other than the owner of the damaged property?
Reasoning
The majority concluded thatsomeone who invests in a bridge in order to use it cannot be distinguished from someone who leases a bridge in order to use it. Pure economic losses can be recovered when there is:
(i)negligence;
(ii)foreseeable loss;
(iii)proximity between the negligent act and the loss.
(i)Norsk was negligent in hitting the bridge.
(ii)Norsk ought to have known that P would suffer a foreseeable kind of loss as a result of one of their ships hitting the bridge.
(iii)CN’s property was in close proximity to the bridge and its property could not be enjoyed w/o the use of the bridge. According to the “common venture” principle, where P’s operations are closely tied to the operations of the party suffering the damage, P can recover economic loss even though P has not suffered directly. There was proximity btw Norsk’s negligence and CN’s loss.
Point: This verdict is in contrast to the established “bright line” rule that persons cannot sue for pure economic losses. The dissent focussed on who was the better loss bearer. They also focussed on policy considerations (e.g. floodgates). This case is somewhat different from Weller b/c CN had a K to use PWC’s bridge.
It’s also important to note that the verdict was close in this case (5-4) and might constitute a c/l exception. This case does not present any clear answers as to whether relational economic losses can be recovered.
b)Civil Law
1)Art. 1053/1457 C.C.Q. apply.
2)Regent Taxi v. Congrégation des Petits Freres de Marie[1929]
Facts
P is a religious community who has the capacity to sue and be sued. One of the community members was seriously injured due to D’s negligence. The community is suing for the loss of services of the injured man.
Issues
Does the community have a right to sue for the loss of the injured man’s services?
Reasoning
The community has a right of action. Art. 1053 C.C.L.C. says that D is responsible for harm caused to “another.” D interfered w/ the community benefiting of the injured party’s services.
3)Elliot v. Entreprise Cote-NordLtée. [1976]