I. Introduction to Extra-Contractual Obligations

Fall Term Outline

I. Introduction to Extra-Contractual Obligations

II. Fault & The Obligation to Take Care

The Obligation to Act with Care

CL Donoghue v Stevenson

Facts: Woman found a snail in her ginger beer. Her friend bought it for her, so she was not part of a K. Was not possible to inspect contents before drinking it. Got sick. Sued manufacturer.

Issue: Did the manufacturer owe the consumer of the ginger beer a duty of care?

Holding: Yes.

Reasoning: There is a general principal underlies all previous cases when a duty of care is owed (so Lord Atkin doesn’t see himself as changing the law, just clarifying.) The neighbour principle: you owe a duty of care to anyone who you could have reasonably foreseen would be harmed by your act/negligence. Anyone “so directly and closely affected by my act that I should have had them in contemplation.”

Ratio: A manufacturer owes a duty to take reasonable care that the consumer’s life or property is not injured by use of their product.

Comment: Made common law negligence more similar to the civil law. The next 80 years of common law negligence law have been judges trying to figure out how to interpret this. Phrase “life or property” limits claims – can’t be pure economic loss.

Code Napoléon:

1382. Whosoever, through his act, causes damage to another by his fault is obliged to repair the damage.

·  Contains both intentional and unintentional fault.

·  Does not specify what kind of damages.

·  Owed to everyone.

·  Specifies the breach of duty, but not what the duty is in the first place.

CCLC Articles:

1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

·  Only certain people are liable.

·  Specifies that it can be a positive or negative act.

CCQ Articles:

1457.Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

·  Includes duty to take care (fault-based) and strict duties (no-fault).

·  Everyone has a duty, but only those endowed with reason can be found liable for a breach of duty. You can still be at fault, but are not liable for the fault.

To prove negligence under both D v S and 1457, you need:

·  Fault

·  An injury (damage)

·  Causation

·  Duty of care

·  Relationship to other sources of liability

·  Capacity

The Meaning of Fault

DC Labelle v Gatineau

Facts: 8-year old kid was playing in a garbage dump owned by the city of Gatineau, fell into fire. Employees knew kids played in dump. Had a “no trespassing” sign. Had a fence, but it wasn’t high enough or well-maintained.

Issue: (1) Was the dump an attraction to children? [foreseeability!] (2) Did the municipality take adequate measures to prevent children from gaining access?

Holding: (1) Yes. (2) No. Therefore the city is liable.

Reasoning: They should have foreseen the accident and taken reasonable steps to discourage children like having a proper fence – sign is not enough because the dump is an attraction to children.

Ratio: Anyone maintaining a hazard that is an attraction to children must take reasonable steps to prevent their injuries.

DC Oeuvres des terrains de jeux v Cannon

Facts: Girl was playing around an ice rink, slips and injures herself. Employees saw girl playing, didn’t tell her to stop. Father sues the owner of the ice rink.

Issue: Is the ice rink liable?

Holding: No

Reasoning: The path the girl slipped on led from the rink to the chalet. It had to be covered in ice for skaters. Hazard was necessary.

The employees are not at fault for not telling the girl to stop playing because a bon pere de famille (reasonable person) would let their child play there. Risk of playing on path and slipping was no greater than that of skating on the rink.

Ratio: The test for how a reasonable person /bon père de famille would have acted involves balancing risks and rewards

Comment: Difference between Labelle: Ice rink was run by a charitable organization vs. dump run by the city. Not part of reasoning, but this probably influences judges.

Viney, Les conditions de la responsabilité:

·  The civil law doesn’t have "torts” – just sanctions for breaking the obligation of conducting yourself according to the social norm – prudently and diligently. If you don’t meet this standard, you are at fault.

·  Judge can determine what the person should have done two ways:

o  In abstracto: refer to a predetermined model of conduct and then look at the situation of the person being judged. In absence of a specific text, standard is the “bon pere de famille.” But can vary according to situation ie: “reasonable doctor.”

o  In concreto: look at all the facts of the case, including the character and aptitudes of the person being judged, then analyze their actions.

·  Facteurs d’inferiorite: age, physical health, psychological health, religious/philosophical beliefs. Courts really only consider age, psychological health. Physical health can add more liability (have to know your capacities, act within them).

·  Facteurs de superiorite: capacities, abilities, personal knowledge. People with more of these (ie: doctors) held to a higher standard.

CL Bolton v Stone

Facts: Woman hit by a cricket ball while standing on a highway outside her house. Brought a suit against the cricket club, which had been there since 1864. Other people testified that balls occasionally went into the neighbourhood or onto the road.

Issue: Was the cricket club negligent in failing to ensure wayward balls did not injury anyone?

Holding: No

Reasoning: While it was reasonably foreseeable that this kind of accident would happen, the chances of it happening were really small. Also the probable extent of the injury is really small (usually ball would just fall on the lawn). People must guard against reasonable probabilities, not fantastic ones. A reasonable person would not have felt obligated to stop playing or build a bigger fence.

Ratio: The test for foreseeability involve considering both (1) if something could reasonably happen (2) the probability that it would actually happen.

Comment: Same judge says the opposite thing in Wagon Mound case.

CL Overseas Tankship v Miller Steamship (Wagon Mound 2)

Facts: Overseas Tankship were working on Wagon Mound (their ship.) They were carelessly letting oil spill out of the ship into the water, and it drifted throughout the harbour. Some of the oil caught fire, Miller Steamship’s vessel was damaged. Established that it was extremely unforeseeable that oil on the water’s surface would catch fire.

Issue: Was Overseas Tankship liable?

Holding: Yes.

Reasoning: Bolton v Stone has changed the laws on foreseeability. Used to be that something is foreseeable or not, now there are degrees. If there is an improbable but foreseeable risk, you can neglect it if you have a valid reason (ie: too difficult). In this case, it would not have taken a lot of effort to fix the problem (no cost, financial or otherwise to modify behaviour). Also damage occurring is much greater than in Bolton. So Overseas Tankship is liable for negligence.

Ratio: When calculating legal foreseeability, you must take into account statistical likelihood, cost of prevention, and amount of damage.

Comment: Is this consistent with Bolton or not? What would have been the cost for them to build a fence around the cricket pitch?

Assessing the Reasonable Person Standard

Holmes, The Common Law

·  Theories of liability:

o  A man’s conduct is thrown upon him as the result of some moral shortcoming.

o  A man is answerable for all the consequences of his acts. (Strict liability – this exists in some jurisdictions/situations).

o  Austin: main feature of law is a sanction imposed by the sovereign for disobeying their commands.

o  Under the common law a man acts at his peril. Because the act was voluntary, we can hold him responsible for it. (This has been rejected by the courts though.)

The Learned Hand Formula: Liability for negligence should be found when: Probability of injury x Magnitude of Injury > Cost of modifying behaviour.

·  Magnitude of injury actually gets figured out by the courts eventually (at least cost in $ of fixing)

·  Cost of modifying behavior is harder, depends on the situation. Cost in $ of building a fence is easy. Cost of never playing cricket again is not.

·  Probability is impossible.

·  Do the courts actually use this? Posner thinks though. Law has an underlying economic logic – about maximizing wealth.

·  Or is it more like the Golden Rule test (treat other’s interest as if they’re equal to your own – basic individual rights, not economic rationale).

P Cane, “An appraisal of the fault principle”

Critiques of fault:

·  The compensation payable bears no relation to the degree of fault

·  The compensation bears no relation to the means (wealth) of the tortfeasor

·  A wrongdoer may be held legally liable without being morally culpable and vice versa

·  The fault principle pays little attention to the conduct or needs of the victim

·  Justice may require payment of compensation without fault

·  It is often difficult to adjudicate allegations of fault

·  The fault principle contributes to a culture of blaming and discouraging people from taking responsibility for their own lives

Fault and the Defendant’s Abilities: Experts

ter Neuzen v Korn

Facts: Doctor performed artificial insemination procedure, got HIV. At the time, it was impossible to test for HIV in Canada, doctorwas not aware that HIV could be transmitted through AI. Doctor’s practice was in keeping with general practices across Canada.

Issue: Is the doctor negligent, notwithstanding conformity with standard medical practice?

Holding: No.

Reasoning: Can’t look at the past with present spectacles. Doctor’s behaviour must be assessed in light of other ordinary specialists who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada. A doctor acting in line with practices will generally not be found negligent, because the courts don’t have expertise in those fields. However, a common practice can be condemned as negligent if it contains obvious risks. Difference between the practice of screening the blood (medical process) and screening people for HIV with a questionnaire (layperson can assess this).

Ratio: When a procedure involves difficult questions of medical treatment beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent, unless it fails to adopt obvious reasonable precautions which are readily apparent to the ordinary finder of fact.

Comment: How could the screening practice be shown to be negligent: But for test – doctor couldn’t have known about the HIV at the time, but if they were properly screening for other STIs they would have probably caught this.

Roberge v Bolduc

Facts: Two parties had an agreement to buy property (avant contract). Vendor said they had good title of the property, notary discovered that the bank actually owned it at one point (court judgment ruled this), sold it to the current vendor. Notary told buyer that the previous court judgment hadn’t fixed the problem when it actually had. Buyer sued the notary. Notary said this was standard practice.

Issue: Was the notary liable?

Holding: Yes.

Reasoning: You can still be liable notwithstanding something being standard practice. A reasonable person could determine that this practice was negligent (the idea of res judicata – a judicial decision is final – is well known). The professional’s obligation is diligence (not to never make a mistake, that is unreasonable).

Ratio: A professional acting consistently with common practice will still be found liable if the practice itself is unreasonable.

Fault and the Defendant’s Abilities: Children

Summary of Children and Liability:

·  France: The age-dependent standard is not applied. Once you are endowed with reason (a subjective test) you can be found liable. (Sois Sage article)

·  Common Law: An age-dependent standard is applied. This is a mostly objective test (how would the reason whatever-year old act in this situation?). You can be endowed with reason and still not be found liable depending on your age. (McHale v Watson)

·  Quebec: Not entirely clear. If the act is “objectively wrongful” you are automatically at fault if you have capacity. (Ginn v Sisson) Otherwise, the common law standard might be used, but this is not for certain. (Gaudet v Lagace)