Fall
Dec 17
Extra-Contractual Obligations / Torts
(Van Praagh)
John Simpson
Fall Semester 2012
Cell #: 514-772-3710
Table of Contents
THE NATURE AND FUNCTIONS OF EXTRA-CONTRACTUAL LIABILITY
4
CANADA MINISTER OF JUSTICE, “RESTORING DIGNITY”
AGREEMENT IN PRINCIPLE (INDIAN RESIDENTIAL SCHOOL SETTLEMENT)
PAPADATOS V. SUTHERLAND, [1987]
VINEY, “INTRODUCTION À LA RESPONSABILITÉ”
CANE, “ATIYAH’S ACCIDENTS, COMPENSATION AND THE LAW”
ENGLARD, “THE PHILOSOPHY OF TORT LAW”
CALABRESI, “TORTS-THE LAW OF THE MIXED SOCIETY
POSNER, “ECONOMIC ANALYSIS OF LAW”
BRIERLEY & MACDONALD, “QUEBEC CIVIL LAW”
4
5
6
6
7
8
8
8
8
THE OBLIGATION TO ACT WITH CARE
9
TRIGGER, “THE CHILDREN OF AATAENTSIC”
DONOGHUE V. STEVENSON, [1932]
10
11
THE MEANING OF FAULT
12
VAN GERVEN, “TORT LAW: SCOPE OF PROTECTION”
HOLMES, “THE COMMON LAW”
VINEY, “LES CONDITIONS DE LA RESPONSABILITÉ”
LABELLE V. GATINEAU, [1959]
POSNER, “THE LEARNED HAND FORMULA”
BOLTON V. STONE, [1951]
OVERSEAS TANKSHIP V. MILLER STEAMSHIP (WAGON MOUND 2), [1967]
12
12
13
13
14
15
16
CRITIQUE OF THE REASONABLE PERSON STANDARD
17
OEUVRES DES TERRAINS DE JEUX V. CANNON, [1940]
HERBERT, “FARDELL V. POTTS”
CONAGHAN, “TORT LAW AND THE FEMINIST CRITIQUE OF REASON”
CANE, “AN APPRAISAL OF THE FAULT PRINCIPLE”
17
18
19
19
CULPABILITY: THE DEFENDANT’S ABILITIES (CHILDREN)
20
MCHALE V. WATSON, [1966] (AUSTRALIA)
GINN V. SISSON, [1969]
VAN PRAAGH, “SOIS SAGE”
20
21
22
CULPABILITY: THE DEFENDANT’S ABILITIES (EXPERTS)
23
TER NEUZEN V. KORN, [1995]
ROBERGE V. BOLDUC, [1991]
23
24
CONTEXT: FAULT’S RELATIONSHIP TO SPECIFIC NORMS
25
VON BAR, “THE COMMON EUROPEAN LAW OF TORTS”
WALDICK V. MALCOLM, [1991]
CANADA V. SASKATCHEWAN WHEAT POOL, [1983]
MORIN V. BLAIS, [1977]
25
26
28
28
2
MODIFICATIONS OF FAULT
30
BRIERLEY & MACDONALD, “QUEBEC CIVIL LAW” (REVIEW)
KEATING, “PERSONAL INVIOLABILITY AND ‘PRIVATE LAW’”
LAPIERRE V. ATTORNEY GENERAL OF QUEBEC, [1985]
NAPOLEON, “AYOOK: GITKSAN LEGAL ORDER, LAW, AND LEGAL THEORY”
30
30
31
32
LIABILITY FOR INJURY CAUSED BY THE ACTS OF OTHERS: EMPLOYERS
32
IRA S. BUSHEY V. UNITED STATES, [1968] (UNITED STATES)
LE HAVRE DES FEMMES V. DUBÉ, [1998]
BAZLEY V. CURRY, [1999]
JACOBI V. GRIFFITHS, [1999]
33
34
35
37
LIABILITY FOR INJURY CAUSED BY THE ACTS OF OTHERS: PARENTS
39
GAUDET V. LAGACÉ, [1998]
PARENTAL RESPONSIBILITY ACT
GINN V. SISSON, [1969] (REVIEW P18)
VAN PRAAGH, “SOIS SAGE” (REVIEW P19)
40
41
41
41
LIABILITY FOR INJURY CAUSED BY THINGS: PRODUCT LIABILITY
42
JOSSERAND, “DE LA RESPONSABILITÉ”
RYLANDS V. FLETCHER, [1868]
DOUCET V. SHAWINIGAN CARBIDE, [1910] (QUEBEC)
CITY OF MONTREAL V. WATT AND SCOTT, [1922] (QUEBEC)
BRIERLEY & MACDONALD (REVIEW)
42
42
43
44
45
LIABILITY FOR INJURY CAUSED BY THINGS (PRODUCT LIABILITY)
45
HOWELLS, “COMPARATIVE PRODUCT LIABILITY”
LAMBERT V. LASTOPLEX CHEMICALS, [1972]
VAN GERVEN ET AL., “TORT LAW: SCOPE OF PROTECTION”
VISCUSI, “DOES PRODUCT LIABILITY MAKE US SAFER?”
46
46
48
48
APPROACHES TO ASSESSING A FACTUAL LINK
48
BARNETT V. CHELSEA & KENSINGTON HOSPITAL MANAGEMENT COMMITTEE, [1968]
GBUREK V. COHEN, [1988]
ST-JEAN V. MERCIER, [2002]
ATHEY V. LEONATI, [1996]
CLEMENTS V. CLEMENTS, [2012]
49
50
51
53
54
INHERENT UNCERTAINTY IN THE CONNECTION
56
MCGHEE V. NATIONAL COAL BOARD, [1972]
SNELL V. FARRELL, [1990]
LAFERRIÈRE V. LAWSON, [1991]
CLEMENTS V. CLEMENTS, [2012] (REVIEW)
ST-JEAN V. MERCIER, [2002] (REVIEW)
GBUREK V. COHEN, [1988] (REVIEW)
56
58
60
61
61
61
INHERENT UNCERTAINTY IN IDENTIFYING WRONGDOER
62
3
COOK V. LEWIS, [1951]
FAIRCHILD V. GLENHAVEN FUNERAL SERVICES, [2002]
SINDELL V. ABBOTT LABORATORIES, [1980]
63
64
65
MASS TORTS
67
WEINSTEIN, “ETHICAL DILEMMAS IN MASS TORT LITIGATION”
67
The Nature and Functions of Extra-Contractual Liability
CCQ 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.
Quebec Charter of Rights and Freedoms, 49.:
Any unlawful interference with any right or freedom recognized by this Charter
entitles the victim to obtain the cessation of such interference and compensation for
the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition,
condemn the person guilty of it to exemplary damages.
Canada Minister of Justice, “Restoring Dignity”
Published ~2000, so Minister of Justice would have been Anne McLellan (under
Chrétien)
 Remembrance
o Monuments, news reports, etc.
 Acknowledgement
o Acknowledgment of guilt, of the validity of their trials
 Apology
o Written apologies, official apologies (through the apology the
wrongdoer admits to having violated the victim)
 Accountability
o Problematic, because potential that “those who are liable also hold
most of the detailed information required to establish
accountability (86).”
o “Certain cases may be worthwhile to cease pursuit of punishment
in order to arrive at truth (86)”
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Victim can submit an “impact statement” (written or oral
statement allowing victim to speak during criminal
sentencing; give point of view)
o Criminal sentencing not always possible, but other ways
 Administrative hearings/sanctions
 Access to therapy/counseling
 Access to education/training
o Making for the education/childhood they lost due to their abuse
 Financial Compensation
o The main form of compensation used by the Canadian Legal
System
o Judges have “a broad discretion in assessing damages (92).”
o Courts almost always award more money for damages than admin.
compensation. programs.
 Prevention and public awareness
o Providing the education to not only the communities of those
directly affected, but to every citizen in order to avoid repetition of
the same crimes.
Last residential school closed in 1996 in Saskatchewan

*Those Aborig peoples who opted for the “Indian Residential School Scheme”
waived their right to pursue cases of Civil Liability
Agreement in Principle (Indian Residential School Settlement)
Drafted in 2005
Lump sum payments made to any persons who had been at a residential school in
general
terms release Canada and Church org. for all claims from Rez. School exp.
 But victims retain right to pursue Individual Assessment Process (IAP)
which bases their case on a compensation scale dependent on the
extent of their suffering
 IV. Truth and Reconciliation:Provides for the est. of Truth and
Reconciliation Commission (est. 2008)
 V. Commemoration: Canada has to provide ~20M for commemorative
initiatives (events, projects, memorials)
 VI. Healing: Canada has to provide 125M as endowment to the Aboriginal
Healing Foundation
 XII. Legal Fees: All legal fees were paid by Canada
IAP Processes:
Done on a basis of “compensation points” for “Sexual and physical assaults” and
“any other wrongful act or acts…which are proven to have caused serious
psychological consequences”
5
Papadatos v. Sutherland, [1987]
Facts:
The appellant was criminally charged, and served 10 years in prison, for the assault
and torture of the respondent. The respondent then sought compensation for
damages. The trials judge awarded him 18,000$, 7,000$ of which was for
“exemplary damages”. The appellant then appealed the case, on the grounds that he
had already served 10 years in prison and should not be liable for any more
“exemplary damages”
Issue:
Are exemplary damages viable in a case where the accused has already been
punished for the crime in question?
Reasoning: (Quebec Court of Appeal Kaufman J.)
The fact that the appellant has already served 10 years in prison changes the
situation (all damages stick except the exemplary charges, so total reduced to
11,000$).
“Exemplary damages…are intended to punish the wrong-doer for his acts and
to deter him…. Appellant had already been sentenced to concurrent terms of
imprisonment totaling 10 years for this incident.”
“Article 49 of the Que. Charter was not intended to permit a court, in a civil action, to
award exemplary or punitive damages where the Defendant has already been
prosecuted and punished for the same acts in the criminal courts.”
Holding:
The exemplary damages added by the trial judge are struck. Damages reduced to
11,000$.
Ratio:
Exemplary damages are intended to punish the wrongdoer, not to compensate the
victim.
*For Charter Art 49 violation: 10yrs in jail (replaces exemplary damages)
For CCQ Art 1457 violation: 11,000$ damages
Viney, “Introduction à la responsabilité”
Looks at evolution of civil liability in French law:
 Industrial Revolution = Massive increase in work-related accidents made civil
liability important; majority of victims had difficulty proving exact origin of
injury.
 Development of insurance = changed civil liability by introducing collectivization
of risk and shifting away from individual, specific fault-based damages.
o Insurance is the main cause of the evolution of civil responsibility post1880.
 Notion of “guilt” in civil liability has less to do with condemnation of tortfeasor
and more to do with victim compensation.
o Art. 1394 CCLC = possibility of compensation for accidental damage even
in absence of situation falling under particular statute.
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o Attention shifting away from the means (performance of obligation) to a
focus on the result (provide for a certain standard of performance).
Changes provoked by direct socialization of certain risks:
i) Process of Direct Socialization of Certain risks:
 Cases in which the law obliges people who engage in certain risks to take on
compulsory insurance (obligatory direct insurance).
 Maintaining civil responsibility has two advantages:
o Preservation of deterrent effect of civil responsibility
o Lowering social cost of compensation
 Criticisms of recursive regime (i.e. insurance)
o Recursive actions often directed at insurer rather than individual
responsible – obliterates sense of personal responsibility.
o Not certain that recursive measures actually diminish costs of
indemnities.
Resources are only profitable from those who exercise them, not for collective
Cane, “Atiyah’s Accidents, Compensation and the Law”
Compensation for Accidents
 “Compensation” is a method of making good a “loss” or of replacing something of
which a person has been deprived. It has two major purposes:
o To make good measurable financial losses
o To make amends for disability or loss of faculty, pain and suffering or
death of relative (compensation in financial terms even though loss has
no measurable financial value).
Natural and Human Causes
 Law draws a distinction between injuries and diseases according to whether or
not they are caused by the actions of some human agent. In torts, marks
difference between liability and no liability.
Mixed Systems in a Mixed Society
We have a variety of regimes for dealing with misfortunes:
o 1. Those which are so trivial they are simply regarded as part of life, and
should either be accepted as routine or covered by one’s own personal
insurance.
o 2. Those which are sufficiently serious to warrant State instituting
coercive system to ensure compensation is paid to victim by person who
caused the harm.
o 3. Some which are so important that the State takes it upon itself to
compensate.
Causing Injury to Others
 Effectiveness of tort system as a deterrent depends crucially on ability of
potential tortfeasor to take steps in advance to prevent the damage or injury
from occurring.
 To be taken seriously as a deterrent, tort system must set down clear and
detailed guidance of how to behave. Standard of “reasonableness” is vague
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
and abstract when compared to, say, driving offenses set down by criminal law
(which do have deterrent function).
o “Reasonable care” is only positively determined by court after injury has
occurred.
o Courts worried about setting standard which is under-inclusive
Deterrent function of tort system also reduced by widespread liability
insurance. If financial consequences are not felt by the person who causes the
harm, how is it a deterrent?
Englard, “The Philosophy of Tort Law”
-In liability, debate between moral responsibility v. social utility
-Corrective v. distributive justice
-Fault v. strict liability as the substantive principle of liability
Calabresi, “Torts-The Law of the Mixed Society
-19th century perspective:
Only if it can be shown that injurers could have cheaply avoided the loss
should incentives to avoid injury rest on them. Even when it can be
avoided, victim should still bear loss and incentive to avoid it  today,
practically the opposite.
Posner, “Economic Analysis of Law”
Role of economic analysis:
Normative = Can clarify value conflict by showing how much of one value
(efficiency) must be sacrificed to achieve another. If the more efficient
methods did not impair any other values, they would be socially desirable
even if efficiency were low on list of social values.
 Efficiency Theory  The common law is best explained as a system of
maximizing societal wealth.
Criticisms of Economic Approach:
 Normative underpinnings of economic approach are too normative for law.
Criticized for “ignoring justice” – sometimes described as distributive justice or
efficiency.
Brierley & Macdonald, “Quebec Civil Law”
Delict: intentional illicit act/omission of an extra-contractual nature which causes
damage
Quasi-delicts: unlawful/harmful act/omission characterized by negligence or lack
of prudence
Both types are examined under the same CCLC article: 1053
CCLC “crystallized the principle of liability based on fault”
Reaffirmed by Lapierre v. A.G. Quebec (see notes later on)
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The Obligation to Act with Care
(Relevant CCLC articles 1053-1057 are in V.1 p562-565)
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.
CCQ 1458. Every person has a duty to honour his contractual undertakings.
-Where he fails in this duty, he is liable for any bodily, moral or material injury he
causes to the other contracting party and is liable to reparation for the injury;
neither he nor the other party may in such a case avoid the rules governing
contractual liability by opting for rules that would be more favourable to them.
CCQ 1459. A person having parental authority is liable to reparation for injury
caused to another by the act or fault of the minor under his authority, unless he
proves that he himself did not commit any fault with regard to the custody,
supervision or education of the minor.
-A person deprived of parental authority is liable in the same manner, if the act or
fault of the minor is related to the education he has given to him.
CCQ 1460. A person who, without having parental authority, is entrusted, by
delegation or otherwise, with the custody, supervision or education of a minor is
liable, in the same manner as the person having parental authority, to reparation for
injury caused by the act or fault of the minor.
-Where he is acting gratuitously or for reward, however, he is not liable unless it is
proved that he has committed a fault.
CCQ 1461. Any person who, as tutor or curator or in any other quality, has custody
of a person of full age who is not endowed with reason, is not liable to reparation for
injury caused by any act of the person of full age, except where he is himself guilty of
a deliberate or gross fault in exercising custody.
CCQ 1462. No person is liable for injury caused to another by an act or omission of a
person not endowed with reason except in the cases where the conduct of the
person not endowed with reason would otherwise have been considered wrongful.
CCQ 1463. The principal is liable to reparation for injury caused by the fault of his
agents and servants in the performance of their duties; nevertheless, he retains his
recourses against them.
CCQ 1464. An agent or servant of the State or of a legal person established in the
public interest does not cease to act in the performance of his duties by the mere
fact that he performs an act that is illegal, unauthorized or outside his competence,
or by the fact that he is acting as a peace officer.
CCQ 1465. A person entrusted with the custody of a thing is liable to reparation for
injury resulting from the autonomous act of the thing, unless he proves that he is not
at fault.
CCQ 1466. The owner of an animal is liable to reparation for injury it has caused,
9
whether the animal was under his custody or that of a third person, or had strayed
or escaped.
-A person making use of the animal is, together with the owner, also liable during
that time.
CCQ 1467. The owner of an immovable, without prejudice to his liability as
custodian, is liable to reparation for injury caused by its ruin, even partial, where
this has resulted from lack of repair or from a defect of construction.
CCQ 1468. The manufacturer of a movable property is liable to reparation for injury
caused to a third person by reason of a safety defect in the thing, even if it is
incorporated with or placed in an immovable for the service or operation of the
immovable.
-The same rule applies to a person who distributes the thing under his name or as
his own and to any supplier of the thing, whether a wholesaler or a retailer and
whether or not he imported the thing.
CCQ 1469. A thing has a safety defect where, having regard to all the circumstances,
it does not afford the safety which a person is normally entitled to expect,
particularly by reason of a defect in the design or manufacture of the thing, poor
preservation or presentation of the thing, or the lack of sufficient indications as to
the risks and dangers it involves or as to safety precautions.
Trigger, “The Children of Aataentsic”
* 4 major categories of crime recognized by the Hurons:
1) Murder and lesser equivalents, wounding and injury
 Murder placed absolute obligation on kinsmen to seek revenge
 Blood feuds led to anarchy – agreed within the confederacy that feuds would
be settled by the payment of reparations depending on rank and sex of
murdered person.
2) Theft
 Little could be done to prevent theft of moveable items due to semi-public
nature of Huron dwellings – simply tried to minimize consequences of
quarrels.
3) Witchcraft
 Almost all accusations of witchcraft resulted from violations of Huron norms
concerning cooperation and reciprocity. Most accusations aimed at scaring
them into conformity.
4) Treason
 Made it easy for headmen to coerce individuals whose behaviour was socially
disruptive or who too greatly challenged their authority, because they could
sanction their execution.
*Is deterrence or compensation more important?
-Social problems create laws through a shared desire to avoid social chaos
-How much does ANY society look for accountability mechanisms rather than
accepting tragedy as accident?
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Donoghue v. Stevenson, [1932]
Facts:
April 9th, 1929 appellant brought 500£ damages against the respondent for injuries
sustained by her from drinking ginger beer manufactured by the respondent. The
beer was bought for her by a friend, and so the appellant had no direct or
indirect claim against the manufacturer based on contractual obligations,
since the appellant wasn’t the one who made the purchase. The beer was in an
opaque bottle that prevented a view inside. Upon finishing the beer, the
decomposed remains of a snail were poured into her glass. Appellant tried and
failed to bring damages against the storeowner. Damages were sought from the
respondent (manufacturer of the beer) for the nervous shock and gastro-enteritis
which she claimed resulted from the beer.
Reasoning: (House of Lords, Lord Atkin)
upheld the decision of the trial court judge
 You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your
neighbor/another
 Neighbour: persons so closely and directly affected by a person’s act that
they ought reasonably to have them in contemplation when the
performing the actions/omissions in question.
 Application by Lord Atkin of the ‘neighbour principle’
“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour?
The answer seems to be — persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as long as so affected when I
am directing my mind to the acts or omissions that are called in question.”
Holding:
You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor/another. Appeal allowed.
How does each system adapt to change?
By reinterpreting/setting down new facets of the general rule (CML)
By adding to the specifc rules (CVL)
Both Civil (specific) and Common (overarching) are converging by using both
methods
-Common is being concentrated with specific writs/torts (Nuissance,
negligence, etc.)
-Civil is starting to be regulated with general obligations (CCQ Art 1457, CCLC
Art 1053)
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The Meaning of Fault
Van Gerven, “Tort Law: Scope of Protection”
The law of tort is concerned primarily with the prevention of harm to others, and if
not, the compensation of victims for their injuries
 Distinction between contractual/tort liability not always clear
More and more insurance companies are paying the compensations
 Is this having an affect on the preventative nature of Tort?
English law today follows the Roman law of tortious liability fairly closely
 Torts have to fit into certain categories (writs/Torts)
o Trespass to Person (specifically: assault, battery, false
imprisonment, etc.)
o Trespass to land and nuisance
o The action of the case (ex. Negligence)
French Law developed in a much more general way
 Ex. Art. 1382: “anyone who, through his act, causes damage to another by
his fault shall be obliged to compensate the damage”
Also pertains to “negligence and carelessness”
Holmes, “The Common Law”
Contract vs. Tort liability
 Liability arising from tort do not involve the consent of the
tortfeasor to bear the loss caused by his actions
Two main theories of Tort
 Sanction threatened/imposed by the sovereign for disobedience
 ‘under the common law a man acts at his peril
The requirement of a liable act then is the defendant should have made a conscious
choice (moral element)
 Liability is determined by blameworthiness which allows for very little
difference in character
 Based on the ‘average’ person
 Legal standard must apply to all men, not specially excepted, under the
same circumstances
*Holmes: “The loss must lie where it falls.”
Obligation:
1. Do not harm
2. Do your best
Fault balances between these two obligations (you have to do your reasonable
best not to hurt another player)
Obligations change depending on every different factual context
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Viney, “Les Conditions de la responsabilité”
The methods for finding liability in Tort law has consistently moved away from the
old definition based purely on causality.
 Now, based indirectly on a general norm of social conduct consistent with
reasonable prudence and due diligence
 Doesn’t necessarily have to be based on written law, just found to be
inconsistent with normal comportment
Courts have duty to balance between two common forms of finding Tort liability
 In abstracto: (objective)
o Model based on the ‘normal man’ who is reasonable and advised of
the norms of conduct
o *The court cannot judge the morality of man, and therefore can
only judge a person based on the actions that they have committed
o But this average man principle is adaptable to external influences
 Ex. For specialists (doctors, etc.) the rules are different
based upon the nature of the profession
Major difference between ABSTRACTO and CONCRETO is the taking into
account of ‘personal’ influences by the concreto approach
 In concreto (subjective)
o Takes into account all the particularities that could have affected
the Tortfeasor’s damaging actions.
o Physical/Mental handicaps are very often accepted as limitations
on the liability of the Tortfeasor, but what about other
deficiencies?
o Age: Often considered as admissible for children, not as often
accepted for elderly
o Infirmity or sickness: jurisprudence has shown that majority of
time court sees it as Tortfeasors responsibility to know their limits
o Intelligence: Court very rarely accepts this excuse; it is the
Tortfeasor’s responsibility to abstain from such actions if
knowledge/intelligence is not known
o Religious/Philosophical views: only cases involving this have
been with the refusal of medical care in some cases; in France at
least, this refusal has been justified.
Does superiority of expertise in individuals (doctors, athletes, etc.) make them
more liable in certain cases than the ‘normal person’ that the law is modeled
on?
Labelle v. Gatineau, [1959]
Facts:
An 8 year old boy fell into a hidden fire while playing in a municipal garbage dump.
It was a spot that the child had played at frequently before with other children.
Leasor testified that they had a lot of trouble with children playing in the dump, and
that their only precaution was kicking them out when they could catch them. The
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fence was not in good condition to deter the entrance of individuals.
Legal Question:
Does damage done to others indirectly by a fire not properly put out constitute
negligence?
JH:
Superior Court Judge ruled in favour of the respondent
o The junkyard was away from places usually visited by children
o There was a fence encircling the compound
Court of Appeal rules in favour of appellant
Reasoning: (SCC Hyde J.)
 The factors of liability are whether the dump constituted an attraction for
children (whether this attraction was known to the operator of the yard)
and, in affirmative, whether due diligence was taken to prevent said
persons from entering.
 It was well known to the operator that children played there and
was well known to the children as a spot to play
o Therefore it obviously constituted an attraction for children
 Hence, the onus was on the operator to ensure the safety of
the grounds and durability of the fence
o The fence was not adequate to keep children out, was not well
maintained
Dissent: Taschereau J.:
-The fence was there and it was private property; the children took the risk entering
the dump and liability is not applicable
Holding:
The respondent is liable for the damages suffered by the child due to the fact that
the compound was well known by operator and children as a place to play, and the
respondent failed to properly maintain the fence and put out the fire despite this
knowledge.
Ratio:
Where prior knowledge exists of danger and reasonable precautions are not taken,
the Torfeasor is liable for damage done by his property to another.
CCLC 1053
Without the precautions of making sure the fire is out/fence is maintained, Gatineau
failed in its obligation
Posner, “The Learned Hand Formula”
The duty to provide against injuries is a function of three variables:
o Probability that injury will occur (P)
o Gravity of resulting injury (L)
o Burden of adequate precautions (B)
Liability depends upon whether B < P x L  when the burden is less than the
probability multiplied by the gravity of the injury there is liability
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Hand formula is “simply an application to accidents of the principle of cost-benefit
analysis.
o P x L = expected accident costs OR benefits of accident avoidance
Negligence = failing to avoid an accident where benefits of accident avoidance
exceed costs.
Point is to understand the underlying economic character of liability
*BUT nothing fixed in the values of the B/P/L (dependent on
interpretation/process/court/jury)
The job of the lawyers on both sides to argue the values of each for the different
parties
(Posner) = if B>PL, no liability if precautions not taken
Bolton v. Stone, [1951]
Facts:
Stone, walking on side rode of residential homes, struck and severely injured by a
cricket ball. Hit was the result of an exceptional hit by player at a nearby cricket
club. Went 100 yards and over a 17ft fence before striking Stone.
Issue:
Is the cricket club liable for Stone’s injuries as a result of negligence?
Reasoning: (Lord Reid)
Negligence cannot be found.
The hit was exceptional in comparison with regular hits in cricket, and only aprox. 6
had gone over the fence in 28 years without any previous accident
Allegations were that either a) grounds too close to residences b) fence wasn’t high
enough otherwise failing to ensure balls wouldn’t go onto the road
It was foreseeable, but highly improbable
“The law of negligence is concerned less with what is fair than with what is
culpable”
Based on likelihood of damage to others rather than the foreseeability alone; “you
must take reasonable care to avoid acts which you can reasonably foresee would be
likely to injure your neighbor.”
People must guard against reasonable probabilities, not fantastic ones
Holding:
Bolton is not liable for Stone’s injuries. Even though the risk was foreseeable, it was
so remote that a reasonable person would not have anticipated it. Appeal allowed.
Ratio:
Foreseeability does not imply liability; must be a reasonably foreseeable risk
(B v. S) = if PL≥ substantial risk, liability if precautions not taken
-The 17ft high fence eliminated the probability of substantial risk,
therefore by establishing the reasonable duty of care and cancelling out
liability on the club
If the probability of this harm combined with the seriousness of the harm is greater
than the probability of substantial risk, then you have to take precautions
15
Overseas Tankship v. Miller Steamship (Wagon Mound 2), [1967]
Facts:
Respondents had 2 vessels at wharf in harbour undergoing repairs. Wharf was
doing welding and cutting work, which was apt to cause hot metal to fly into the sea.
The appellant had a vessel in the wharf, and by the carelessness of their engineers
allowed a large amount of oil to overflow into the water. Oil caught fire, caused
extensive damage to wharf and respondent’s vessels.
JH:
Trial judge found that damage was not reasonably foreseeable – one in the
appellants position would regard oil as hard to ignite on water and the risk as
possible, but minimal.
No negligence, but liable under nuisance
*Appellants appeal judgment based on nuisance, respondents cross-appeal issue of
negligence.
Legal Reasoning: (House of Lords, Lord Reid)
Precedent of Bolton v. Stone doesn’t hold respondents liable if the risk was so
infinitesimal that any reasonable man would have done nothing to prevent it. BUT
does not follow that it is justifiable to neglect small risk in any circumstances – a
reasonable man would only neglect risk if he had a valid reason for doing so.
 A person must be regarded as negligent if he can foresee a risk, no
matter how small, and does not take steps to eliminate it, especially
when those steps present no difficulty, involve no disadvantage, and
require no expense
No justification for spilling oil into harbour: Overseas Tanker had duty and
obligation to stop it ASAP.
 Qualified engineer would have recognized that there was a real risk of fire
igniting (even if it was small).
No reasonable man would dismiss the risk (however unlikely) when it was so
easy to prevent.
 This is the difference from Bolton v. Stone; the act of cricket was
justifiable and precautions had been taken against damages (Fence, etc.)
 In Tanker v. Miller the oil spill was completely unjustifiable and no
actions were taken to prevent the damages that ensued
Holding:
A reasonable man (in the post of chief engineer of a vessel) would have known that
there was a real risk of the oil igniting, and the fact that the risk was small did not
justify not taking steps to eliminate it.
Reasonableness over foreseeability => a reasonable person would take
action to eliminate the risk, no matter how small, especially if doing so
involved no difficulty, no disadvantage, and no expense.
The appellant failed in his duty to eliminate the risk that he created
Ratio:
If a reasonable man can foresee and easily prevent the risk, no matter how unlikely,
16
and fails to do so, then he is liable for the damages that it causes.
The Learned Hand can be applied to both dissenting and majority decisions
-Has to have a ‘substantial risk that is reasonably foreseeable’ which
overweighs the burden of preventing it for negligence to be applicable
Wagonmound 2: when the burden is so small that a reasonable person would just fix
it
B. v. S./ Wagonmound 2 = reasonably foreseeable isn’t the only factor in negligence.
-An imbalance anywhere in the equation can result in negligence (miniscule
burden of care in W., reasonable foreseeability in BvS, etc.)
*Reasonable Person (CML) Bon Père de Famille (CVL)
Critique of the Reasonable Person Standard
Oeuvres des terrains de jeux v. Cannon, [1940]
Facts:
7 year-old girl injured while sliding down icy surface adjacent to skating rink. She
and her sister used a 10-12 inch raised surface as a makeshift slide, located in
alleyway between the rink and the chalet (icy in order to allow easy access between
the two). They were seen by a few workers, but they thought it was fine to let them
play. Girl fell and cut her forehead quite deeply, requiring stitches and leaving her
with a scar. Father sued proprietor for damages sustained by his daughter.
Proprietor claims no legal responsibility.
Judicial History:
Quebec Superior Court found defendant liable for damages, she appeals.
Issue:
Can a person be liable for damages suffered on an area known to have easily
foreseeable risks inherent in their use?
Legal Reasoning (Justices Rivard/Létourneau CA)
What technically injured the girl was ice – naturally occurring and inanimate. To
sue, must locate human agency.
 Art. 1054 – only examines what appellant’s responsibility in laying down
the ice or in chasing the girl away from it.
 Art. 1053 – claiming that the injury was sustained through the fault of
the appellant.
 Can’t use 1054 – must sue under 1053.
Central criteria in establishing fault is absence of prudence and attention that would
have been paid by a “bon-père du famille” (Létourneau) what reasonable,
diligent person would have done in the same circumstances.
Mother sent two girls into terrain – not to play in the snow, not to skate (didn’t open
till later) but to go into playground. Virtually nothing to do there except for play on
the icy slope.
For the purpose of the rink – skating – you have to have an icy surface, and
that always entails some element of risk. Everyone knew that it was ice, and
17
that ice is slippery.
 It is foreseeable that a child might slip and fall on ice. But that does not
make the proprietor responsible. The risk is inherent in the activity, and
therefore there is no liability on the owner
Respondent claims that the workers should have stopped them. But the judge
himself says he would not have – seen it as two kinds enjoying themselves sliding on
the playground.
Holding:
Injury sustained by the girl was an unfortunate accident of an activity that was
harmless in and of itself. The appellant fulfilled her legal responsibilities. Appeal
granted, action dismissed.
Ratio:
When the risk of injury is easily foreseeable to the ‘reasonable/diligent person’ and
those risks are inherent in the activity, the risk is for every individual to assess and
evaluate when deciding to engage in said activity.
Labelle and Oeuvres des terrains de jeux:
*1. In the first, risk wasn’t known beforehand, the defendant had the obligation to
properly deter trespassers with fence, ensure fire put out and didn’t. 2. In second,
risk open and inherent in the use of grounds; plaintiffs forewent recourse to civil
liability when they accepted the inherent risks of allowing their children to play on
ice.
Herbert, “Fardell v. Potts”
Facts:
F had boat collision with P, as a result of which she was immersed in water and
caught cold. P alleged that the collision and injury were the result of negligent
navigation of F.
Issue:
Was F negligent in failing to take reasonable care?
Legal Reasoning:
Reasonable Man = ideal, standard, embodiment of qualities demanded by a good
citizen.
In determining fault, court must ask whether or not F’s conduct was that of a
reasonable man.
Is the reasonable man a myth?
-Few people (if any) in society are actually devoid of human weakness
-Yet, in the court of law, jury is persuaded that they themselves are the
reasonable man.
No mention of a “reasonable woman”  F argues jury in initial trial should have
been advised that while F’s behaviour might not have met standard of reasonable
man, her conduct was to be judged by what would be expected of a reasonable
woman.
Court finds that the common law doesn’t recognize “a reasonable” woman.
Holding:
18
There is no “reasonable woman” in CML. Appeal denied.
The reasonable man is not that reasonable (for Herbert he is Mythical)
Conaghan, “Tort Law and the Feminist Critique of Reason”
Tort law has taken a distinctly masculine approach to dispute resolution
The feminist perspective recognizes interconnectedness where masculine sees only
conflict
 “Why should we accept that it is reasonable to let an accident happen
when it is more expensive to avoid it when such a calculated approach to
human suffering affronts us?”
Must take a reasonable person approach rather than a reasonable man approach
Is it fair to hold someone to a standard that someone could not possibly meet?
-The problem with the tort of negligence is in the reasonable man standard
-The bon pere de famille, as a comparable person, is therefore a better
reference than the reasonable person
Cane, “An Appraisal of the fault principle”

Cane  Unjust that tortfeasors should bear burden when they may be no more
culpable than many others.
o Justifies liability insurance = spreads burden of compensation among
pool of potential tortfeasors.
Compensation Bears No Relation to Means of Tortfeasor
 Tortfeasor’s wealth or financial means usually irrelevant to liability – is this
really fair?
 Justify this by claiming that tort’s purpose is compensation rather than
punishment.
 This position justifies liability insurance, but liability insurance in turn conflict
with the rationale of the fault principle because it relieves tortfeasor of personal
responsibility for damages.
Harm-Doer May Be Held Legally Liable Without Being Morally Culpable; and Vice
Versa
 Rationale for tort system is based on moral principle that if a person, by
blameworthy conduct, harms an innocent person, they should compensate them
for that damage. But there are at least two grounds on which to question
whether tort law does embody such a moral principle.
 (1) Collective Liability
- we are happy to hold a company or organization responsible even when we
cannot point to any specific individual who was personally to blame.
 (2) Objective Definition of Fault
- If the law really reflected morality, it would not adopt an objective definition of
fault which ignores the personal qualities of those involved and does not require
the tortfeasor to have had any consciousness of moral wrongdoing or dangerous
conduct.
19
Fault Principle Pays Little Attention to Conduct or Needs of Victim
 While it might seem just to have tortfeasor pay damages to a wholly innocent
victim, it seems far less just to force tortfeasor to bear the entire cost of injury if
he was only partially to blame.
Justice May Require Compensation Without Fault
 The idea of compensation without moral culpability well established in public
law context.
Often Difficult to Adjudicate Allegations of Fault
1. Nature of the legal test of fault reasonableness is abstract
2. Problem of proof
3. Focusing on one cause to exclusion of others
Contributes to a Culture of Blaming Others
 From social point of view, we live in a “blame culture”  when things go wrong,
look for others to blame rather than taking responsibility or accepting
misfortune.
Culpability: The Defendant’s Abilities (Children)
Is there a specific age where we become “a reasonable person”?
Different ways of approaching the problem:
1. Negligence as incompatible with children
2. *Middle ground: reasonable child standard
3. Negligence as same: apply objective reasonable standard
*If it can be proven that child knew the fault of his actions, then negligence can be
held
Fault => Liability
Culpability => Capacity (Blameworthiness, age/abilities)
McHale v. Watson, [1966] (Australia)
Facts:
12 year-old boy threw sharpened piece of metal (dart) at a post, expecting it to stick.
Either missing or bouncing off post, instead hit a 9 year-old girl. The boy had no
intention of hitting or frightening the girl.
JH:  (High Court of Australia)
Trial judge found that the boy’s age was a factor in determining whether he had
exercised reasonable care towards the girl. Dismissed the action. Appealed.
Issue:
1. -Was the trial judge correct in taking into account the defendant’s age in
considering whether he ought to have foreseen the potential injurious consequences
of his actions?
2. -Did respondent do anything a reasonable boy of his age would not have done in
the circumstances?
20
Legal Reasoning (McTiernan, Kitto)
-As in a regular case, the plaintiff is liable for the consequences unless the judge is
satisfied that he did not intend to hit the girl and that he was not negligent in
throwing it  but is the reasonable man standard different for a child?
-It does not follow that the defendant cannot claim a limitation upon the
capacity for foresight and prudence, not as being personal to himself, but as
being characteristic of humanity at his stage of development, and in that sense
normal
-“Normality” varies between children and adults.
“Evidence does not suggest that Watson was anything other than a normal 12
year-old boy.”
-Being 12, found that he did not have enough maturity to foresee that the
dart might miss or bounce off the post and hit the girl.
Dissent: (Menzies)
-The objective standard of reasonableness is fixed by the law for a reason:
-Primary aim of the law of negligence is to ensure that injured party receives
compensation – there is no necessary connection between legal liability and
moral responsibility.
Holding:
Respondent’s act was the unpremeditated, impulsive act of a boy not yet of age to
have an adult realization of the danger or the potential consequences of his actions.
Appeal dismissed.
Ratio:
The adult reasonable standard should not be used to assess negligence in children
*Comparing Ginn/McHale it becomes obvious that age wasn’t the factor
-Discernment was the factor (did the children consciously realize that
what they were doing was wrong?)
-Look at the actions themselves: are the actions objectively wrong in and of
themselves? (Reasonable person standard; bon pere de famille)
Ginn v. Sisson, [1969]
Facts:
A young boy (6 years old) was throwing rocks at a group of girls in the schoolyard.
Though no one witnessed the particular act, he had been throwing stones in the area
moments earlier, and had been asked by the girls to stop. One girl was hit and
injured.
Issue:
Despite his young age, was the defendant capable of ascertaining the nature of his
act? If so, can a child of this age (or his father in his role as guardian) incur liability?
Legal Reasoning: (Quebec Superior Court)
A parent or tutor will not be held responsible under CCLC art. 1054 if they can
prove that they educated their child well and could not have prevented the act.
-“Education” is not only negative but positive – not just “don’t throw rocks,”
but giving him enough of a moral understanding to know that throwing rocks
21
is wrong, even if it was never explicitly mentioned.
Obligation to watch over the minor is variable – depends on circumstances of the
case.
Throwing rocks at a group of girls is objectively a wrongful act.
Could Sisson comprehend the nature of his act and the potential consequences?
-He was sufficiently developed to know that throwing rocks was
wrong.
-He said that if his parents knew he injured someone by throwing rocks, he
would be severely punished.
Though 7 is quite young to incur liability, court is satisfied that the boy was
sufficiently developed to understand that his act was wrong and that injury was
foreseeable.
Father is not liable – he was able to prove that he had educated his son well, and
that he could not have foreseen or prevented the injury in the schoolyard.
Holding:
The minor boy is responsible for the injury to the girl. Despite his young age, he
was sufficiently developed to understand the nature of his actions, and knew
that they were wrong. He incurs liability, father does not. Action granted.
Damages awarded to girl and her parents.
Ratio:
The culpability of a child is based on capacity to understand objective wrongdoing,
not on age.
Art. 1053 CCLC: One of the conditions is the ability to distinguish right from wrong
– “discernment” as precondition for liability.
Art. 1457 CCQ – may only be held liable “where endowed with reason” – still begs
the question of whether a child is endowed with reason. Gives us an age (7) but not
a test. “Reason” is the bare minimum a child must express if we are to inquire
further about his liability.
Van Praagh, “Sois sage”
While generally hesitant to impose responsibility for acts of others, law does
recognize that parental behaviour can result in liability for injuries inflicted
by their young children.
Law must balance between legal responsibility of parents and the sliding scale of
that child’s individual responsibility.
Spectrum of analyzing children’s behaviour:
One extreme might define childhood as incompatible with responsibility.
The other extreme views youth as irrelevant.
-Measure wrongdoer against an “average” child of the same age.
Modify reasonable person test to assess behaviour in light of how he should
have behaved given age and stage of development (CML approach).
-*Rests on a) whether the act in question was objectively “wrong” and b)
whether child could discern right from wrong (QC Civ approach).
Two faulty conceptions of parent-child relationship in the law:
22
1. That which fails to see parents of very young child
2. That which sees parents only in the case of the adolescent
-If we impose too much liability on parents, risk missing the actual person
responsible.
How does parental liability appear in the law?
1. Direct responsibility = injury seen to result from parent’s failure to supervise /
control kid.
2. Indirect strict liability = risk of parenting includes responsibility for harm done
by children. Child as primary wrongdoer removed – parents held liable regardless
of the quality of their supervision and education.
Art. 1459 CCQ  Assessment of child in terms of individual discernment and
objective reasonableness is coupled with presumption of fault on the part of the
parent.
-If parents can prove that they acted responsibly, they move out of the
foreground as child moves in – indicates more capability of assuming
responsibility (see Ginn).
Suggestion = Combining parental responsibility with responsibility of
reasonable child
Culpability: The Defendant’s Abilities (Experts)
*Looking for reasonable expert rather than reasonable person
We expect a higher level of responsibility
Ter Neuzen v. Korn, [1995]
Facts:
Defendant contracted HIV in course of artificial insemination procedure performed
by appellant in Jan 1985. Respondent did not inform her of the risk. First reports of
women contracting HIV was in 1983, as was first link between HIV and blood
transfusions. One article published Oct 1983 made a link between AI and transfer of
STDS – but was not widely read and not read by the defendant.
Issue:
Can respondent be found negligent notwithstanding his conformity with standard
medical practice?
Legal Reasoning: (Sopinka J.)
Knowledge about HIV was growing in period of 1984-5, but was still limited. “Elisa”
test to test semen for HIV not yet available when appellant became infected.
 At the time in question, AI was not seriously considered to put anyone at
risk of HIV infection.
 When respondent was made aware of the risk, discontinued AI and told
appellant to be tested.
Evidence that respondent’s AI practice was in keeping with general practices
across Canada.
Respondent could be found negligent if:
23

1. He failed to comply with the standard medical practice at that
time.
 2. The approved practice itself was negligent
Must be assessed in light of conduct of other ordinary specialists  physicians
have a duty to conduct practice in accordance with conduct of a prudent and diligent
doctor in same circumstances.
 Must be assessed in light of knowledge he ought to have reasonably
possessed at the time  Not possible that in 1985, respondent ought to
have known of the risk (a reasonable practitioner would not, in the same
circumstances, have discontinued AI or warned patients of the risk).
No grounds on 1), so negligence relies on 2): jury finding that standard practice
itself was negligent in failing to conform to a higher standard.
 Generally recognized that when a doctor acts in accordance with
standard practice, he will not be found negligent unless the practice is
“fraught with obvious risks” or not in accordance with the general
standard of liability (i.e. reasonableness).
In this case, accept expert testimony as to standard practice. Once a standard is
determined on expert evidence, only question is whether respondent
conformed to it.
 It was the duty of the defendant to take reasonable steps to protect his
patients against STDs. If he failed to do so, he could be liable even if the
risk of HIV in particular was not foreseeable (class of injury). He took the
reasonable precautions.
Holding:
Appellant’s case entirely dependent upon Elisa test being available, which it
was not. Nothing else in evidence to suggest negligence. Appeal dismissed.
Ratio:
For a specialist to be found Negligent, that person must be held against the
‘Reasonable Specialist’ standard of conduct
1. Were the doctor’s actions unreasonable based on standards of the time? (NO)
2. Was the practice itself inherently negligent (‘fraught with obvious risk’) (NO)
- Compare to the way the courts looked at child defendant in McHale v.
Watson
Roberge v. Bolduc, [1991]
Facts:
Respondents accepted offer of purchase on immoveable, instructed appellant notary
to insure validity of vendor’s title. Notary discovered a defect in the title (hypothec
not by registered owner) but which had been cured by “Caisse” debtor of the
hypothec, by valid judgement in court granting title, which then sold the property to
current vendor. Appellant notary informed clients (Respondents) that judgement
obtained by Caisse didn’t cure defect (ignored Res Judicata) and advised
respondents not to buy. Vendor’s attorney explains judgement cured defect, but
24
respondents see a 2nd notary who backs up the Appellant’s decision. Vendor takes
legal action for breach of contract, Respondents take action against appellant notary
for bad advice to breach contract in the first place.
Issue:
Did the appellant (notary) exercise reasonable care towards respondents in his
capacity as notary? If so, is the standard practice acceptable?
Legal Reasoning: (L’Heureux-Dubé J.)
Appellant’s contention that title is invalid because of default in hypothec is rejected.
Title perfected and Caisse made rightful owner on authority of res judicata (art.
1241 CCLC).
 Appellant made an error of law in ignoring authority of res judicata –
failed to distinguish between defect in hypothec (which existed) and
defect in title (which was cured by judgment).
Appellant’s fault was twofold:
 Error of law regarding authority of res judicata was unreasonable.
 Failed to advise clients of legal consequences of breach.
 Expert witnesses and second opinion confirm that appellant’s actions
were in keeping with norms of practice of a prudent and cautious notary
in same circumstances.
Professional standard not sufficient to avoid liability – practice was not
demonstrably reasonable. Notaries owe clients an obligation of diligence, which
appellant did not fulfil.
The issue of res judicata is not a controversial one, nor did the facts of the case
present particular difficulties in assessing it. If appellant had properly
researched and read the law, would have found that title was valid.
Holding:
Appellant is liable for damages suffered by respondents as his opinion was the
direct and immediate cause of their decision not to pursue the property. Though in
keeping with standard notarial practice, the standard itself (disregard of res
judicata) is negligent and unreasonable. Appeal dismissed.
Ratio:
An expert will be found negligent if he performs in a way that is deemed
unreasonable, and which results in damages to others. Standard practice does not
exonerate liability where the practice itself is unreasonable.
*Standard itself was found to be negligent. No matter how convinced the notaries
were that they were acting rightly, and despite the fact that other reasonable
notaries would have acted in the same way, they are still negligent for acting
unreasonably.
Context: Fault’s Relationship to Specific Norms
Von Bar, “The Common European Law of Torts”
Determining Causes of Action from Blanket Provisions:
25

Codes include blanket rules imposing liability in damages for
violations of provisions which themselves are non-delictual (e.g.
criminal, traffic laws). Taken alone, these laws have no “real” links with
the law of torts – but the law of torts turns their norms into auxiliary
delictual provisions.
Most countries agree that:
 Breach of any statutory duty will likely be considered a cause of action
 Liability for statutory violation should be stricter than for general legal
duty
 Diligence is not presumed merely because of compliance with statutory
rules.
Major question  Does the violation of any rule of law indicate delictual misconduct?
-When tort system is built around a general clause (e.g. France) compliance
with specific rules of conduct does not necessarily excuse tortfeasor from
liability, nor is everything not explicitly forbidden permitted.
Fault and Breach of Statutory Duty:
Where a case involves violation of a statute, the statute serves two functions:
 Helps define delictual misconduct
 Lowers the threshold of proof of fault (moves towards strict
liability)
Ex. France and Belgium  In the absence of specific legal justification, the violation
of a written legal rule automatically constitutes a fault.
Waldick v. Malcolm, [1991]
Facts:
W seriously injured after falling on icy parking area of M’s farmhouse. M claimed it
was local (rural) custom – no one salted driveways. W was aware laneway was
slippery, condition clearly visible.
Issue:
Did M fail to meet statutory duty of care imposed by Occupier’s Liability Act? Was W
contributorily negligent under the Act?
JH:
Both trial court and AC of Ontario held M liable for W’s injuries.
Legal Reasoning: (Iacobucci J.)
Courts rarely take judicial notice of custom – custom not decisive against negligence.
If plaintiff acted unreasonably, it matters not that his neighbours also acted
unreasonably.
Custom was never proven
 M found to have breached s.3(1) of Act notwithstanding local custom
Act meant to discourage such generalized negligence and impose standard duty of
care for occupiers. It mandates positive action on part of occupiers to make
premises reasonably safe. Where no such effort has been made, exceptions to duty
of care will be few and narrow.
Test of reasonableness and foreseeability  Conditions of the icy laneway were
26
not unexpected, and M did nothing to eliminate the risk even though they knew it
would be used by visitors . In doing nothing, failed to meet duty of care required by
s.3(1) of the Act.
 M argues that standards should be lower for rural environment:
 But point of scheme was to limit arbitrary rules applicable to different
kinds of premises in favour of a generalized duty of care.
M’s duty was not to make the whole farmground safe, only the area in which they
knew people would be (close to entrance / parking area)
Earlier courts found no contributory negligence under s.4(1) of the Act – this court
agrees.
 Does “risks willingly assumed” entail proceeding in the face of knowledge
of the risk, or is it codification of volenti non fit injuria doctrine (‘to a
willing person injury is not done)?
 Essentially = merely knowing of the risk v. consenting to legal risk
 Mere knowledge of conditions is not what is meant by s.4(1) – the mere
fact that a visitor observes a risk does not relieve occupier of
statutory duty of care.
Volenti = s.4(1) was meant to embody this doctrine - does not bar the claim because
there was no agreement to waive legal rights.
Very rare for plaintiff to genuinely consent to accept all risks (narrow exception).
Holding:
M breached standard duty of care in Act. W was not contributorily negligent. M is
therefore liable for injuries W sustained on their property. Appeal dismissed.
Custom does not excuse negligence.
Ratio:
Common practice and custom do not exonerate liability where those practices are
inherently unreasonable.
Compare to Oeuvre des terrains de jeux (Bon père de famille)
*Community compliance does not equal reasonableness
Establishing norms in a statute relieves us of need to determine what’s considered
“reasonable”
What’s usually done by the court (assessing whether an activity that caused
harm is because of fault) is done here by a statute
** Breach of a statute is not in itself determinative of whether there has been
negligence. Breach of statute can be the beginning of an argument, however this in
itself is not sufficient to say that there was fault. Just saying breach or just saying
compliance isn’t the answer to whether or not there’s going to be responsibility.
The challenge for the defendant is then to avoid liability even though there
was statutory breach.
Ex. Canada v. Saskatchewan Wheat Pool
27
Canada v. Saskatchewan Wheat Pool, [1983]
Facts:
SWP delivered infested grain into one of the Canadian Wheat Board’s elevators.
This was contrary to s.86(c) of the Canada Grain Act. Canada seeking damages in
civil action against SWP.
Issue:
Did SWP’s breach of statute alone confer upon the Board a civil right of action
against them?
Legal Reasoning: (Dickson J.)
There is no separate tort of statutory breach – it is part of the law of negligence.
There is no absolute liability based on statutory breach in the absence of fault 
breach is taken as mere evidence of negligence, but fault must still be established for
a tort claim.
In this case, SWP was not at fault because it took reasonable care. Took
measures to prevent and test grain, in compliance with all other standards. No
evidence SWP acted unreasonably.
Holding:
No. Breach of a statutory norm may be evidence of negligence, but does not
constitute fault. Fault still must be established to sue in negligence. Appeal
dismissed.
Ratio:
Statutory breach does not establish liability in the absence of fault.
CCQ 1480. Where several persons have jointly taken part in a wrongful act which
has resulted in injury or have committed separate faults each of which may have
caused the injury, and where it is impossible to determine, in either case, which of
them actually caused it, they are solidarily liable for reparation thereof.
Morin v. Blais, [1977]
Facts:
One night, B driving his tractor slowly. M driving car in same direction, quite fast. As
M approached B, third car L coming in other direction. M could not see B soon
enough, struck its wheel, swerved to other side of the road and hit L. L’s wife died,
M injured. Shown that left rear light on B’s tractor was not working – however, it
was equipped with regulation fluorescent triangle.
Judicial History:
 Trial court held B’s inadequate signalling device caused accident; B was
only person liable.
 Quebec Court of Appeal found B’s fault had not contributed to the
accident; M was only person liable.
Issue:
 Does B’s breach of statutory regulation (light) automatically incur civil
liability for the accident?
Legal Reasoning: (Beetz J.)
28
No contestation that B was at “fault” in the sense that he breached statutory traffic
rule meant to prevent such accidents. Breach of elementary reasonable
behaviour standards incurs civil fault (the statutory standards tell us how to
act reasonably– where such fault is immediately followed by accident,
presumption is that the fault caused the accident) Onus on defendant to prove
that there was no causal link between the fault and the accident.
o A second cause is the behaviour of the appellant, M – while not
speeding was driving quickly, and ought to have seen the obstacle
sooner.
o M and B’s faults are not mutually exclusive  “cumulative” or
“common” fault.
 If B had fixed his light, would have been easier to see and
might have avoided accident.
 If M had driven more prudently, would have seen B and
might have avoided accident.
Holding:
 Both M and B were guilty of faults that contributed to the accident. As
such, there is common fault, and liability should be divided equally
between the two drivers.
Dissent: (de Grandpré J.)
The cause of the accident was M’s failure to see something that was clearly visible –
the tractor. Though B was in breach of a regulation, it did not cause the accident
(agrees with AC).
o Despite the broken light, the tractor should have been clearly
visible to M. (had regulation reflective triangle, etc.)
o Precedent used by majority to decide the case was different – both
parties there played equally contributory roles, whereas here,
dissent believes only M’s actions were causally responsible.
Ratio:
More than one person can be found at fault where they each contributed to the
negligence which caused the injury, resulting in shared liability.
*(Canadian Way) The statutory breach can be used as evidence of negligence,
but you still have to figure out whether there was reasonable behaviour (to
prove person was AT FAULT)
-Falls between presumption of fault and need for interpretation
** It means that statutes lay down an elementary standard of care, and that breach
of that standard of care (not breach of the statute itself) imposes fault.
1. What connections would you encourage the students to make with the preceding
four classes? In particular, find ways to compare and contrast customary practice
within the community in W v. M. and that in Roberge v. Bolduc or in Ter Neuzen v.
Korn.
- Customary practice for Doctors= Ter Neuzen
- Customary practice for notaries= Roberge v. Bolduc
29
- Customary practice for community= W v. M
Ultimately up to the Courts to decide what the reasonable standard is in every
situation, regardless of any industry standard (see Roberge v. Bolduc)
2. What questions then can be put to the students with respect to two SCC
judgments that discuss the relationship between explicit statutory standards and
the standard of reasonable behaviour that is the touchstone of liability for civil
wrongs?
-Roberge, Ter Neuzen, Waldick all try to use custom to exonerate
themselves from liability
-Saskatchewan and Morin try to use custom (statutory standards) to induce
liability
Reasonable Person Standard:
 Article 1457: the standard by which we determine whether someone
endowed with reason has breached the duty to abide by the rules of
conduct
 Tort of Negligence: the standard by which we determine whether
someone has acted negligently and therefore breached the duty of care
to one’s neighbour
Relation to:
 Practice/habit (average behaviour)
 Custom (implicit normative)
o In a community, etc.
 Guidelines (explicit normative – within community or public policy)
Statute, etc.
Modifications of Fault
Brierley & Macdonald, “Quebec Civil Law” (review)
(See notes p.5)
Keating, “Personal Inviolability and ‘Private Law’”
Four distinct facets of fairness case for Enterprise Liability:
1) Fairness to victims:
 Disperses costs of enterprise-related accidents and distributes them
within the enterprise.
2) Fairness to injurers:
 Simply asks them to accept the costs of their choices – those who create
characteristic risks do so for their own advantage. Only fair that they
share in damages when things go badly.
 Imposing risks whose expected costs exceed expected benefits is
negligence.
3) Exacts just price from injurers for freedom tort law confers upon them
30


Tort law permits potential injurers to put others at risk for their benefit.
Since they stand to reap rewards by imposing such risks, it is fair that
they bear financial responsibility for harm when harm is characteristic or
occasioned by injurer’s activity.
Strict accountability induces potential injurers to act more cautiously.
4) Distributes costs among actual and potential injurers
 Unlike negligence liability, E-L requires that costs be spread among those
who create similar risks (dispersing and distributing concentrated losses
rather than shifting them).
o 1. Accident costs should be internalized by the enterprise whose
costs they are
o 2. Those costs should be dispersed/distributed amongst the
beneficiaries of the risk imposition
 Basic idea is that all who benefit in an enterprise should be bound to
share in the potential injuries resulting from that enterprise –
whether or not they are personally responsible.
 *Logic of Enterprise Liability meant to critique traditional tort
insistence that a specific actor – not an activity – is to be held
causally responsible for harm.
Lapierre v. Attorney General of Quebec, [1985]
Facts:
Lapierre (5) contracted encephalitis after being vaccinated for measles pursuant to
a routine mandatory provincial vaccination policy. There is no allegation of fault
against the government and it is no longer disputed that there is a causal link
between the vaccine and the encephalitis.
JH:
Trial court found government civilly liable on a no-fault basis.
AC of Quebec set judgment and dismissed action on grounds that he didn’t find
vaccination “compulsory.”
Legal Reasoning: (Chouinard J. SCC)
 On principles of equity, no doubt that Lapierre deserves compensation –
but compensation cannot be granted unless claim can be based on
positive law.
o Lapierre argues  damages suffered or costs incurred by an
individual for the benefit of the community must be borne by the
community.
 Government was under a necessity to act given the threat posed to
society by measles – would have been irresponsible to not issue the
vaccine, which carries some rare but inherent risks.
o Risk of encephalitis from vaccination is 1 in 1,000,000, but risk of
contracting measles among unvaccinated is 1 in 100,000.
 Respondent argues that a legal obligation to compensate resulting from a
necessity has no legal existence in Quebec law.
31
o Rejected “theory of risk” which holds that any act which
causes damage, whether due to fault or not, attracts liability.
o Some think Katz v. Reitz opened door to recognizing theory of
risk, but should rather be interpreted as a decision based on fault
and abuse of rights.
Holding:
While we feel it would be equitable to compensate Lapierre and there is a clear
causal link between the vaccine and the harm, there is nothing in Quebec law that
triggers compensation without fault in these situations. Government not
liable. Appeal dismissed.
The theory of Risk based liability is not recognized under Civil Law
Harm is an inherent risk – cannot have the benefit without one in a million
suffering the harm.
* Under CCLC, fault was essentially the only basis for liability. Courts tend to see
extending this basis as going beyond their scope. It is the responsibility of
legislators, not courts, to provide alternative bases for civil liability (e.g. victim
compensation scheme set up after Lapierre).
Napoleon, “Ayook: Gitksan Legal Order, Law, and Legal Theory”
Strong presence of system somewhat like strict liability of Western traditions
 If a person is injured accidentally, there is Liability on that House
even if there is no fault
 This payment is called ‘xsiisxw’
Like most Chthonic legal traditions, compensation has a goal of atonement rather
than punishment/guilt
Is a burden held by the House as a whole not the individual alone
Liability for Injury Caused by the Acts of Others: Employers
CCQ 1463. The principal is liable to reparation for injury caused by the fault of his
agents and servants in the performance of their duties; nevertheless, he retains his
recourses against them.
Rule
-Respondent Superior:
Employer is
responsible for the tort
of the employee (strict
liability)
Rationale
-Employer is likely to be able
to pay; Benefits/Losses
(enterprise risk);
-Incentives to improve
protocol
(deterrent/encourage safe
Regime (Rules)
-1. Must be the Employee
of employer (in uniform,
using equipment of
employer, control of
employer over employee,
employment contract,
32
practices); Creation of risk
etc.)
2. Fault of the Employee 3.
Performance of
Duties/Course of
employment
CCLC 1054 (par6): Fault based liability
CCLC 1054 (par7): Strict liability
CCQ 1457 (par3): Fault based liability
CCQ 1463 (vicarious liability)
*Vicarious Liability is not a Tort; it is the responsibility of the employer, etc.
for the Tort performed by the employee.
Ira S. Bushey v. United States, [1968] (United States)
Facts:
Plaintiff owns dock where US had a ship. One night a drunk sailor (Lane) returned to
stationed ship and played around with some valves which controlled flooding. Ship
started sinking and damaged dock.
Issue:
Is the US liable for the actions of the sailor, its employee?
Legal Reasoning:
US argues it is not liable because Lane’s acts were not in the scope of his
employment – must in some sense be serving his employer.
 Just because US has deeper pockets is not grounds for holding them
liable.
Court finds that while drinking and playing with valves were obviously not serving
his employer, he was nevertheless returning to the ship in his capacity as employee.
Different degree of “foreseeability” than in negligence cases
 Employer should be held to expect risks arising from the activities of
his business
 Foreseeable that crew members could damage the dock either
intentionally or accidentally, and knew of proclivity of seamen to alcohol.
Enough to foresee some risk – doesn’t have to be this particular incident.
 US claims it’s not in employment context – but court holds that it is. Not
in employment context would be something totally removed from the job,
related to his domestic life as opposed to his seafaring activity. In this
case, Lane came up to closed docks to the ship where the US had put him
up. While his particular actions might not be serving his employer, they
were nevertheless in the employment context.
Holding:
Knowledge of any potential risk that seamen might have damaged dock sufficient to
warrant holding US liable – didn’t have to foresee this particular act. Lane was
acting in his capacity as employee, so vicarious liability applies. Appeal
33
allowed.
Ratio:
An employer may be held liable for any damages employee causes related to
employment context when the risk is proven to be characteristic of the enterprise.
*Some damage or risk (though not the particular sequence of events) was
foreseeable, and no steps were taken to prevent it. While defendant’s behaviour
was not unreasonable, it was risky.
- Responsibility for materialization of risk exists despite the fact that the risk
was not unreasonable (strict liability).
- More fair to make reasonable risk taker bear the loss than to let it lie with
plaintiff.
Le Havre des Femmes v. Dubé, [1998]
Facts:
Havre ran non-profit organization helping women with emotional problems.
Through her employment, an employee (Denis) discovered that Dubé was an
alcoholic and had a substantial amount of money. Denis invited Dubé to live with
her. During this time, Denis fraudulently convinced Dubé to lend her $27,000, and
never repaid her.
Issue:
Is le Havre vicariously liable for Dubé’s loss?
Legal Reasoning: (Lebel J. Quebec Court of Appeal)
Is Havre liable under art.1457 (fault-based)? NO
 Havre took all necessary care in hiring and training Denis
 There was no reasonable expectation that Denis would defraud clients
 Fraud took place outside le Havre
Is Havre liable under CCQ Art. 1463? NO
 Though the employment allowed employee to meet Dubé, the fraud was
not in any way linked to Denis’ responsibilities and the employment
context did not facilitate the fraud.
 Employees were specifically forbidden from bringing clients to their
homes, and Denis clearly knew this because she told Dubé not to tell
anyone. (organization foresaw the problem and acted to prevent it)
 Denis was not acting in any sense as an “agent” of the Havre in her fraud.
 Denis acting only to her own benefit – not to benefit of employer.
The fraud committed was so far removed from her task that the behaviour
cannot be considered to fall within the scope of employment.
Holding:
The fault was so far removed from the control of the employer and the scope of
employment that there can be no vicarious liability. Havre is not liable for actions of
their employee.
34
*Case seems to establish that two conditions are necessary to establish vicarious
liability:
 1. Employee must be acting within the scope of her duties and in the
employment context of the job
 2. The fault committed must be viewed as benefitting or in the
interest of the employer
*Bazley and Jacobi are twin cases
Bazley v. Curry, [1999]
Facts:
Children’s Foundation was a residential care facility for troubled children aged 6-12.
It authorized employees to act as “parent figures” for the children – including
supervising intimate duties like bathing and tucking into bed. Unknowingly hired a
pedophile, Curry. Curry abused Bazley, one of the children in the home. After a
complaint was lodged against Curry, they immediately discharged him. Bazley suing
Foundation, they claim they committed no fault in hiring or supervising him, so they
are not liable.
JH:
Both trial and Appeal Court of BC found Foundation vicariously liable. Appealed to
SCC.
Issue:
Can the Children’s Foundation, which employed a sex offender, be held vicariously
liable for the harms caused to children while under its care?
 May employers be held vicariously liable for sexual assaults committed
by employees against persons in their care?
 If so, should non-profit organization be exempted?
Legal Reasoning: (McLachlin J.)
Salmond Test = employers are vicariously liable for:
 Employee acts authorized by employer
 Unauthorized acts so connected with authorized acts that they may be
regarded as “modes.”
This is the real issue – Foundation claims sexual assault was in no way a “mode” of
the authorized act, while Bazley claims it was.
 If plaintiff establishes that employee’s act was done on employer’s
premises, during working hours, and that it bears a close connection
with the authorized work  triggers vicarious liability.
Relevant precedents can be grouped into: a) “furtherance of employer’s aims,” b)
employer’s creation of a situation of friction, c) dishonest employee.
 Common feature = employee’s enterprise created the risk that
produced the tortuous act.
Rationale: Where employee’s conduct is closely tied to a risk that the
employer’s enterprise placed in the community, the employer may justly be
held vicariously liable.
35
Vicarious liability has been justified on the basis of both legal and policy
considerations:
 Legal:
o “Direct liability theory” (employee’s acts taken as extension of
employer’s)
o “Servant’s tort theory” (employer was the superior in charge of
the employee)
 Policy:
o Provision of a just and practical remedy for the harm
o Deep pockets ensure that victim can recover
o BUT deep pockets isn’t enough – must be fair to employer as well
Deterrence of future harm
 Employers in a position to make necessary changes to reduce accidents
and intentional wrongs – holding them accountable furthers this goal.
It is not unjust that a person who employs others to further his own economic
interest be placed under a corresponding liability for the losses incurred in the
course of the enterprise.
 Limit to employer responsibility: – a wrong that is only coincidentally
linked to the activity of the employer and duties of the employee cannot
justify vicarious liability. If the wrong is essentially independent of the
employment situation, nothing the employer could have done to prevent
it (Havre des Femmes)
Employers may be held liable where the act falls within the ambit of the risk that the
employer’s enterprise creates or exacerbates  must be nexus between
employment enterprise and wrong.
Is there a significant connection between the creation or enhancement of risk and the
wrong? (Test)
 1. Opportunity afforded by enterprise to commit the wrong
 2. Extent to which wrongful act furthered employee’s aims
 3. Extent to which wrongful act was related to friction or intimacy
inherent in enterprise
 4. Extent of power conferred on employee in relation to victim
 5. Vulnerability of potential victims to wrongful exercise of power
** What is required = Material increase in the risk as a consequence of the
employer’s enterprise and the duties he conferred on the employee.
 Risk of employee sexually abusing a child was materially increased by
giving the employee:
 The opportunity to be alone with the child for extended periods of time
 The opportunity to supervise / touch children in intimate activities
 A position of power and authority over the child
No exemption for non-profit orgs., even though it might limit plaintiff’s ability
to access money.
Holding:
The Childrens Foundation’s enterprise and empowerment of its employees
materially increased the risk of sexual assault of the children in its care. CF is thus
36
vicariously liable for the harm. Appeal denied.
*Test:
1. Opportunity afforded by enterprise to commit the wrong
2. Extent to which wrongful act furthered employee’s aims
3. Extent to which wrongful act was related to friction or intimacy inherent in
enterprise
4. Extent of power conferred on employee in relation to victim
5. Vulnerability of potential victims to wrongful exercise of power
(She got these test elements from past cases, compiled them to apply to a new one)
Jacobi v. Griffiths, [1999]
Facts:
The Boys and Girls Club employed Griffiths as Program Director in Vernon BC. In
that capacity, he was encouraged to cultivate a rapport with the children. With the
two appellants, this developed into sexual assault.
Issue:
Is the Club vicariously liable for the sexual assaults committed by its employee? Did
the Club’s enterprise or employment of Griffiths materially enhance the risk of the
sexual assaults?
Legal Reasoning: (Binnie J.)
While comparable to Children’s Foundation (Bazley v. Curry), this case falls on
other side of the line. To apply vicarious liability would be to engage in
distributive justice.
Opportunity for abuse created by employer:
 Griffiths was not placed in a “special position” of trust with respect to the
children in the same way as in CF. They were not supposed to be alone /
intimate with them. Only encouraged to create a “positive rapport” – not
the same thing.
Existing case law does not support imposition of vicarious liability.
 “Enterprise risk” rationale only applies if the enterprise materially
enhanced the risk.
Policy goals of compensation and deterrence
 Compensation = idea of enterprise liability balanced with rights of
enterprise
 Deterrence = society has already placed high deterrent on sexual assault
(jail) – if that is ineffective, what could the employer reasonably be
expected to do?
Slippery slope – holding Club liable would place huge burden on non-profit
children’s orgs. Holding them responsible for unforeseeable actions on the part of
their employees.
 **“Strong connection test” from CF  demonstrates that this case
involved a long series of steps between the enterprise’s conduct and
the subsequent wrong.
37
 Cannot be a “but-for” question
The ultimate misconduct in this case is too remote
Holding:
Club did not authorize Griffiths to develop anything more than a “positive rapport”
with the children. The chain of events leading up to the assault are too remote
from the employment context to pass the “strong connection test.” No
imposition of vicarious liability.
Dissent (Justice McLachlin):
Believes this case to be a clear application of Children’s Foundation – should be
vicariously liable. Uses 5 factors set out in CF:
 1) Opportunity – It was only because of the special position bestowed on
him by the Club that Griffiths was able to perpetrate his assaults.
 2) Furthering employer’s aims – Obviously sexual assault cannot be
construed as furthering the enterprise’s aims – it directly violates them.
However, although the sexual assaults themselves were not furthering
the aims, the Club did require him to build intimate relations with the
children. These relations, which allowed him to carry out the assaults,
were in this sense furthering its objectives.
 3) Related to intimacy inherent in organization – Club positively
encouraged him to develop intimate relations with the children. By
assuming this special mentoring responsibility, Club assumes risks.
 4) Power conferred on employee – Claim he exercised a “god-like
authority” – his position over the children was one of power which could
easily be abused.
 5) Vulnerability of potential victims – Troubled youth are most at risk.
Dissent Holding: While the majority of the wrongful acts took place off the premises,
it was within the employment context that Griffiths was able to lay the necessary
foundations for his assaults. Club therefore materially increased the risk of the
wrong occurring. Vicarious liability applicable.
Why doesn’t employer liability apply in this case?
- Look more into nature of employment relationship and the
opportunities it created.
Binnie looks behind new principle to policy objectives. Children’s Foundation
principle stands, but should be applied only where it accords with underlying policy
considerations.
McLachlin (Bazley) v. Binnie (Jacobi)
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British
Columbia, [2005]
Janitor at Residential school sexually assaulted students
-McLachlin doesn’t find the vicarious liability test fulfilled
-Employee of church in charge of menial tasks; no authority/power/intimacy
role
38
Have to draw the line between employer as guarantor, and employer as vicariously
liable (employer can’t be reasonably held to be absolute guarantor of employees’
liability; no Deep Pocket Argument)
Assessing reasonable behaviour depends on time and context (Ter Neuzen)
Was it reasonable to set up the system like that at that time, etc.? Put people in
places of authority over vulnerable children without accountability
Test Level 1: Employer/employee relationship works, but other levels are
also sufficient
Test Level 2:Close connection between the act and the purpose of
employment
McLachlin narrowing her interpretation of vicarious liability
Liability for Injury Caused by the Acts of Others: Parents
CCQ 1459. A person having parental authority is liable to reparation for injury
caused to another by the act or fault of the minor under his authority, unless he
proves that he himself did not commit any fault with regard to the custody,
supervision or education of the minor.
- A person deprived of parental authority is liable in the same manner, if the act or
fault of the minor is related to the education he has given to him.
CCQ 1477. The assumption of risk by the victim, although it may be considered
imprudent having regard to the circumstances, does not entail renunciation of his
remedy against the person who caused the injury.
Under CCQ 1459 and Ontario Parental Responsibility Act:
There is presumption of fault, and it is up to the parents to prove that they are
not at fault to avoid liability
Burden of proof is on the parent to prove he is not at fault
*What is the key difference between employer and parental liability?
- Employer = indirect strict liability
- Parental = indirect fault-based liability
Requires that parent himself committed a fault
Proving no-fault in parental liability:
Parents can relieve themselves of liability by showing they acted reasonably. How?
- Custody/Care
- Supervision
- Proper education
Burden of proof:
- In previous encounters with fault, injured had to show that the person
who caused the harm had acted unreasonably (did not meet reasonable
standard of care) – burden of proof on plaintiff.
- Here, there is a burden on the defendant (parents). CCQ presumes parental
fault, parents must disprove it by the conditions above.
39
**What happens where there isn’t any legislation?
Plaintiff has to prove that there is direct fault on the part of the parent; vicarious
liability (torts of one person attributed to another)
The parent’s negligence that has caused the harm
- Direct responsibility instead of indirect as in CCQ (QU)/PRA (ON)
- Negligence of the parent is the CAUSE of the harm (Causation)
- Not an easy thing for plaintiff to prove (this isn’t necessary for CCQ
1459/PRA; just cause between CHILD’s negligence and harm done)
Gaudet v. Lagacé, [1998]
Facts:
Gaudet (11), Lagacé (12) and Gauthier (13) took gas and a lighter from Lagacé’s
home (parents busy with guests). They went to the forest to play with fire – not the
first time. Gaudet dipped a branch in gas and lit it. When he set it down, flames
spread towards gas tank. Gauthier tried to stop it but accidentally kicked it – fire hit
tank and exploded. Lagacé was apart from the scene. Gaudet severely burned.
Judicial History:
Trial judge rejected Gaudet’s claim because he was unable to determine who started
the fire.
Legal Reasoning:
Trial judge concluded that if anything, Gaudet himself started the fire. Therefore
didn’t look at liability of other boys’ parents (and anyway said they had educated
their sons well).
 Doesn’t qualify as “perilous activity” – looking for novus actus intervenius,
the causal link between the first fault and the damage.
 The boys knew that it was dangerous – their parents informed them of
this. They thus committed a fault which was foreseeable and was the
direct cause of the damage.
Contributory negligence?
 Victim knew of danger and risk
 Victim nevertheless accepted the risk in participating
But does contributory negligence eliminate recourse to liability? CCQ 1477 says no
– despite his imprudence, he has recourse against the author of his harm.
Court finds all three boys share contributory negligence equally.
Parental Responsibility?
 Three components:
o Presumption lessened by advanced age of children – proof
sufficient to lift presumption.
o Surveillance – don’t expect parents to watch adolescents every
minute, or to lock up such innocent things as gas or a barbecue
lighter.
o Proper education – established that they knew it was dangerous.
No parental liability in this case.
40
Holding:
No parental liability, but negligence on the part of all three boys. As a result,
plaintiff can recover damages from other two boys. Appeal rejected against
parents, granted against boys.
*(Contributory Negligence see Morin v. Blais)
Parental Responsibility Act
Liability under PRA:
Establishes regime of “presumed liability” on the part of parents for property
damage caused by children – placing burden of proof on parents. Parent has to
show he took reasonable measures to prevent it (Act contains list of what court may
consider in determining).
 Onus shifted to parents – reversal of burden of proof (parents have to
prove they weren’t liable).
 Based on proving fault in supervising child that indirectly caused harm.
Actually quite restricted in application – has to be intentional property damage.
On the face of it, seems like art. 1459 – but it is actually a lot more limited. Focuses
on a specific type of action and covers a much narrower area of harm.
Ginn v. Sisson, [1969] (review p18)

Boy 6yrs old deemed sufficiently developed to know that throwing rocks
was wrong,
 He knew that his parents would punish him severely for doing so
 His parents properly educated him
Holding: The minor boy is responsible for the injury to the girl. Despite his young
age, he was sufficiently developed to understand the nature of his actions, and
knew that they were wrong. He incurs liability, father does not. Action granted.
Damages awarded to girl and her parents.
Van Praagh, “Sois Sage” (review p19)



Modify reasonable person test to assess behaviour in light of how he
should have behaved given age and stage of development (CML
approach).
Combines attention to particular child with objective assessment of
behaviour. Rests on a) whether the act in question was objectively
“wrong” and b) whether child could discern right from wrong (QC
Civ approach).
Direct responsibility = injury seen to result from parent’s failure to
supervise / control kid.
41

Indirect strict liability = risk of parenting includes responsibility for
harm done by children. Child as primary wrongdoer removed – parents
held liable regardless of the quality of their supervision and education.
Have to look for a middleground
Liability for Injury Caused by Things: Product Liability
CCQ
1465
CCQ
1466
CCQ
1467
A person entrusted with the custody of a thing is liable to reparation for
injury resulting from the autonomous act of the thing, unless he proves
that he is not at fault.
The owner of an animal is liable to reparation for injury it has caused,
whether the animal was under his custody or that of a third person, or
had strayed or escaped.
A person making use of the animal is, together with the owner, also liable
during that time.
The owner of an immovable, without prejudice to his liability as
custodian, is liable to reparation for injury caused by its ruin, even partial,
where this has resulted from lack of repair or a defect of construction.
Josserand, “De la Responsabilité”
There are three conditions for imposing liability for “act of a thing”:
 1. The obligation to compensate for damage caused by the thing has a
source in law.
 2. Will not apply unless damage was actually caused by the thing.
 3. Has its foundation in the notion of “risk created”
Instead, we should impose liability on the owner of the thing, since under the
“théorie du risque créé”, he is the one who brought the situation about in the
first place.
This liability would apply only for truly autonomous acts, in which no human action
or inaction (negligence) is involved.
Rylands v. Fletcher, [1868]
Facts:
Plaintiff is occupier of a mine and defendant is owner of a mill on adjacent land.
Defendants created water reservoir on their land. Underneath their land were
disused shafts which had been filled with dirt. Defendants didn’t know about them,
but their contractors and engineers did – and did not express concern. Once filled
with water, the shafts gave way and water passed through the shafts into plaintiff’s
mine, causing considerable damage. Plaintiff suing defendant for damages caused to
his property by defendant’s water.
Issue:
Is the defendant liable for the damages caused to the plaintiff’s mine by his water?
42
JH:
Trial court found defendants not liable. Court of Exchequer reversed. Appeal to
House of Lords.
Legal Reasoning: (Justice Blackburn)
While it is true that the damage was caused by latent defects in the defendant’s
subsoil (of which they personally were unaware), their workers did not take
sufficient care and skill.
 If the damage had been caused by natural usage of the land (e.g.
water that had already been there or was due to rainfall), they
would not be liable. But because they brought something non-natural
onto the land, they are liable for damages caused by non-natural usage.
 Duty to keep it totally at his peril
- “If a person brings or accumulates on his land anything which, if it should
escape, may cause damage to his neighbour, he does so at his own peril (1.
strict liability (Risk based liability)) If it does escape and cause damage, he is
responsible, however careful he way have been and whatever precautions he may
have taken.”
 May excuse himself if he can show damage was due to act of plaintiff
or an act of God.
Holding:
By bringing water onto his land, defendant did so at his peril. Failure to confine it to
his land resulted in damage to his neighbour’s property, so he is liable for damages
(strict liability scheme). Appeal dismissed.
*Strict liability (Risk based liability): you accepted the risk, you accept the
liability unless you can prove it isn’t your fault.
Defendant:
- can plead it was an act of God,
- or that it was fault of Plaintiff
Doucet v. Shawinigan Carbide, [1910] (Quebec)
Facts:
Doucet and another tended a furnace at SC. One day, the furnace exploded, and a jet
of hot carbide caused serious injury to Doucet (burned out his eyes). The cause of
the explosion could not be ascertained. Plaintiff argues that because furnace was
appellant’s property, he is liable for the damage it caused.
JH:
Trial judge awarded damages. AC reversed decision on the grounds that plaintiff
didn’t prove defendant’s fault. AC 2 reinstated trial judgment, claiming plaintiff
didn’t have to establish fault. SC appealed to SCC.
Issue:
Can the company be held liable for the injury? Does this require proof of fault?
Legal Reasoning: (Chief Justice Fitzpatrick)
Case turned on interpretation of art. 1054(1) CCLC  is responsibility for things
43
under one’s care based on:
 1. Presumption of responsibility (par. 1 standing alone)
 2. Presumption of fault (par.6 applied to par. 1)
Presumption of responsibility – if machine is under appellant’s supervision / used
for his profit and creates a risk, he must bear cost of damages.
- For injuries cased by things under the care of defendant, presumption arises that
such injuries will be ascribable to the fault of defendant.
- Defendant can rebut presumption by proving that he could not (by any exercise of
reasonable care or skill) have prevented the accident.
 Even though there was no direct fault (under CCLC 1053), majority
interpreted preamble to establish system of strict liability
(1054(1)).
No evidence of contributory negligence or accident (i.e. act of god/nature) 
defendant is liable.
Holding:
Though the defendant was not at fault, CCLC establishes presumption of fault on the
part of an owner for harm caused by things in his care. CS is liable. Appeal
dismissed.
Ratio:
Establishes strict liability for damage done by one’s property.
Judicial Activism:
- Industrial accidents starting to become a real source of social harm – courts
looking for a mechanism to enforce owner’s liability for harm caused by
machinery, because system was unresponsive.
City of Montreal v. Watt and Scott, [1922] (Quebec)
Facts:
Montreal constructed sewer system. One sewer ran along respondent’s street.
Respondents had a cellar in which the floor drain was connected to the sewer in
question – subject to city’s standards. Heavy rainstorm occurred and when sewer
flooded, the respondent’s cellar was flooded and some goods were damaged. Action
brought against City to recover value of damaged goods.
JH:
Trial judge found City liable: 1) sewer insufficient to deal with such heavy rain, 2)
failed to put in valves to prevent flooding, 3) failed to put in pumping system to
prevent flooding.
Issue:
Is the City liable for the damages caused by their sewer system?
Legal Reasoning:
Liability of City depended on CCLC 1054  damage caused by a thing (sewer)
under their control.
 Art. 1054 does not raise a mere presumption of fault – it establishes
liability except in cases where exculpatory paragraph applies. CCLC
44

1054(6)
Exculpatory paragraph does not apply. Would have applied if storm was
declared exceptional (which it wasn’t) and City proved they had
constructed sewer to meet reasonable expectations (which they didn’t).
Holding:
City had responsibility to construct sewer to deal with weather that could be
reasonably expected to occur – even rarely. At least two storms (one before and one
after) were just as big, and they could have inserted the valves. It is responsible for
damage done by its property. Appeal dismissed.
Ratio:
Court moves away from strict liability for harm caused by property, instead opt for
exculpatory clause giving possibility of avoiding liability: CCLC 1054(6)
- CCLC 1054 is precursor to CCQ 1465 => presumption of Fault
- Liability for things there is a presumption of Fault, but not strict liability (like
parental liability)
Brierley & Macdonald (review)
Liability for Injury Caused by Things (Product Liability)
CCQ
1468
CCQ
1469
CCQ
1473
The manufacturer of a movable property is liable to reparation for injury
caused to a third person by reason of a safety defect in the thing, even if it
is incorporated with or placed in an immovable for the service or
operation of the immovable.
-The same rule applies to a person who distributes the thing under his
name or as his own and to any supplier of the thing, whether a wholesaler
or a retailer and whether or not he imported the thing.
A thing has a safety defect where, having regard to all the circumstances,
it does not afford the safety which a person is normally entitled to expect,
particularly by reason of a defect in the design or manufacture of the
thing, poor preservation or presentation of the thing, or the lack of
sufficient indications as to the risks and dangers it involves or as to safety
precautions.
The manufacturer, distributor or supplier of a movable property is not
liable to reparation for injury caused by a safety defect in the property if
he proves that the victim knew or could have known of the defect, or
could have foreseen the injury.
-Nor is he liable to reparation if he proves, according to the state of
knowledge at the time he manufactured, distributed or supplied the
property, the existence of the defect could not have been known, and that
he was not neglectful of his duty to provide information when he became
aware of the defect.
45
Howells, “Comparative Product Liability”
Negligence (Fault Based)
 Indiscriminate because liability is premised on fault and can be placed on
anyone connected to product – often without regard for who is most directly
responsible or who has capacity to pay.
 Focuses on conduct of various participants and assesses conduct based on
standard of reasonableness. Risks are considered those which were known or
ought to have been known at the time.
 Conduct not negligent merely because it involves risk – only negligent if risk is
unreasonable (if there was a safer alternative, or more could have been done to
ensure quality control).
Strict Liability
 Two factors distinguish strict liability from fault-based:
o Liability based on objective nature of product rather than behaviour of
producer
o Producer imputed with knowledge of risk whether or not he knew or
could have known at the time.
 Evaluated on the basis of the consumer expectancy test and the risk: utility test.
 Major criticisms of consumer expectancy test:
o Ability of consumer to accurately assess what level of safety can be
expected.
o Ability to assess what consumer’s expectations actually are.
o If a product presents an obvious danger the product cannot be defective
since the consumer cannot have expected it to be safe.
o Abnormal consumers?
 Consumer expectancy test often collapses into risk/utility assessment of the
producer’s behaviour rather than an objective assessment of the product.
Absolute
 Many products are innocent agents in accidents – due to consumer misuse.
 Welfare systems which compensate injuries regardless of how they arise are the
only known true form of absolute liability.
Defects
 Manufacturing or production defects = limited to single item or batch, defects
resulting from error in production process or use of defective raw materials.
 Design defects = whole run of products defectively designed and requiring total
recall
 Warning or instruction defects = lack of proper warning or instruction
Post-marketing defects = arise in systems which allow state of the art or
development risks defenses and involve matters which render the product defective
once put into circulation and which should have been remedied after marketing.
Lambert v. Lastoplex Chemicals, [1972]
Facts:
Plaintiff purchased lacquer seer from defendant manufacturer. He read labels and
46
took reasonable precautions. After sealing most of the floor, fire broke out and
caused explosion. Explosion caused burns to plaintiff and property damage.
Plaintiff suing defendant for negligence.
Issue:
Is the manufacturer liable for the damages caused by plaintiff using his product?
JH:
Defendant found liable at trial. Decision reversed on appeal. Plaintiff appealed.
Legal Reasoning: (Laskin J.)
Direct cause of fire was contact of fumes from sealer with pilot light from
defendant’s natural gas furnace. Explosion occurred when fire reached half-filled
container of lacquer.
 Defendant claims: that plaintiff was a professional engineer, and his
failure to turn off pilot lights was a fault sufficient to exonerate them from
liability.
 Court rules: He made no conscious choice to leave pilot lights on, and
could not reasonably have been expected to know that they could have
ignited the lacquer fumes.
When manufacturer knows a product to be hazardous when put to its
ordinary use, he has a duty to specify dangers in sufficient detail. A general
warning (e.g. “flammable”) is insufficient if the danger may be increased by
surroundings in which it is likely to be used.
 Labels lacked explicitness to specify danger of using product in home
fueled by natural gas. Homeowner could not reasonably be expected to
realize by reading the cautions the degree of risk from pilot light.
 Lacquer has low flash point – ignition could result even from spark of
light switch or gas pilot.
**A competitor’s product contained far more explicit warnings, specifying that “all
spark producing devices” including furnaces and pilot lights could cause ignition.
Manufacturers have a duty to ensure no defects. But duty extends further. If
product, although suitable for intended use, is nonetheless dangerous, have a
duty to advise explicitly.
Holding:
Manufacturers who produce a product which is hazardous in its ordinary usage
have a duty to give explicit, detailed warning. Defendant failed to do so, and is thus
liable for damages. Appeal allowed.
You can deal with product liability with Fault based system; this is how most CML
systems do it.
Also product liability with strict liability systems (in many Civil/CML jurisdictions)
- They just have to show that there’s something wrong with the design of the
thing/making of the thing which makes it dangerous.
- Or failure to warn of danger of using the thing
BUT there will almost always be some kind of Fault factors in the picture
- Usually a mix of the two
47
In Torts, in CCQ, Fault is almost always swimming around (Strict Liability is
more of a theory than a reality)
- Because of our regime, QC is a lot stricter in the area of manufacturer’s
liability than CML.
Van Gerven et al., “Tort Law: Scope of Protection”
Consumer protection became an element of Community policy in Europe in 1975.
- Most of the legislative measures to protect consumers have been in the area
of contracts (e.g. preventing unfair terms in consumer contracts).
Some directives have also affected tort law:
* Aims to introduce strict or no-fault liability for defective products. Subject,
however, to many restrictions.
** Europe chosen to use tort rather than contracts to resolve product liability
disputes. Underlines trend towards stricter product liability already prevalent in
many European national legal systems
Viscusi, “Does Product Liability Make Us Safer?”
People have become less and less willing to be put at risk; thus product liability
costs have risen as a consequence
- At substantial levels of liability costs, it discourages innovation and
have counterproductive effects through imposition of huge costs, and
discouragement of changes in products/product research
Balance: big reduction of deaths caused by defective products
Jurors becoming more biased imposing harsher and harsher penalties for novel
risks
Approaches to Assessing a Factual Link
CCQ 1480. Where several persons have jointly taken part in a wrongful act which
has resulted in injury or have committed separate faults each of which may have
caused the injury, and where it is impossible to determine, in either case, which of
them actually caused it, they are solidarily liable for reparation thereof.
CCQ
2846
CCQ
2847
CCQ
A presumption is an inference established by law or the court from a
known fact to an unknown fact.
A legal presumption is one that is specially attached by law to certain
facts; it exempts the person in whose favour it exists from making any
other proof.
A presumption concerning presumed facts is simple and may be rebutted
by proof to the contrary; a presumption concerning deemed facts is
absolute and irrebuttable.
The authority of a final judgment (res judicata) is an absolute
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2848
CCQ
2849
presumption; it applies only to the object of the judgment when the
demand is based on the same cause and is between the same parties
acting in the same qualities and the thing applied for is the same.
However, a judgment deciding a class action has the authority of a final
judgment in respect of the parties and the members of the group who
have not excluded themselves therefrom.
Presumptions which are not established by law are left to the discretion
of the court which shall take only serious, precise and concordant
presumptions into consideration.
CCQ 2803. A person wishing to assert a right shall prove the facts on which his
claim is based.
-A person who alleges the nullity, modification or extinction of a right shall prove
the facts on which he bases his allegation.
CCQ 2804. Evidence is sufficient if it renders the existence of a fact more probable
than its non-existence, unless the law requires more convincing proof.
Causation:
* Have to show the connection between the Defendant’s
Fault/Negligence (Fault or alternative) and the Plaintiff’s Injury on
balance of probabilities
1. Establish Fault
2. Establish causal link between Fault and Injury
3. Establish Liability
Barnett v. Chelsea & Kensington Hospital Management Committee, [1968]
Facts:
After drinking tea, three night watchmen started vomiting and went to hospital’s
casualty unit. The nurse on call phoned a doctor, who told them to go home and call
their own doctors. Barnett died several hours later from what was discovered to be
arsenic poisoning. Widow suing defendant committee responsible for managing the
hospital, claiming damages in negligence for failing to discharge duty of care.
Issue:
Is there a causal link between the actions of the defendant and the injury to the
plaintiff that is sufficient to entail liability?
Legal Reasoning:
Plaintiff argues that husband’s death was due to the negligence of the defendants’
agents by failing to diagnose and treat his condition. Claim that reasonable actor in
their position ought to have known he was poisoned and had a duty to treat him.
 Case is somewhat different from other hospital cases in that deceased
was not actually a patient – never admitted. Is this relationship
sufficient to give rise to a duty of care? YES.
First issue is establishing negligence of the doctor:
49



1. Without a doubt, should have seen and examined the deceased
2. Given severity of suffering, should have admitted him
3. Should have treated him – would have become apparent eventually
that it was metal poisoning.
Find under all these conditions defendant acted negligently  now have to
prove that this negligence caused the death of the deceased
 Onus of proof shifts to defendants to prove that treatment would have
failed / he would have died anyway. This is established by creating a
timeline  shows that defendant could not have been effectively
diagnosed and treated until after noon, and that there was no
reasonable prospect of the treatment working before his time of
death (around 1 pm).
Holding:
The defendant was negligent in that its doctor did not discharge proper duty of
care in treating patient. However, plaintiff has not discharged onus of proving
that defendant’s negligence caused her husband’s death. Defendants thus not
liable for the injury. Judgment for defendants.
Ratio:
identifying defendant and proving he acted negligently in relation to plaintiff is still
not sufficient  no causal link = no liability.
*Test for Causation: “but for” test; if the harm would not have occurred ‘but for’ the
actions of the defendant
Gburek v. Cohen, [1988]
Facts:
Patient was admitted to the hospital with a very high fever. Doctor decided to treat
his infection with gentamycin, which carries with it risks of kidney and hearing
damage. Doctor did not inform the patient that he was administering the drug, nor
did he reveal of risks and effects of the antibiotic. Doctor failed to carry out all of the
tests for the levels of gentamycin in the patient’s blood (test for kidney failure), and
failed to carry out any of the audiograms, both of which were accepted practice
when administering long-term doses of gentamycin. The doctor prescribed a high
dosage of the drug (though not dangerously high). The patient was experiencing
auditory problems during the treatment. Patient went deaf, because of the
antibiotic.
JH:
Trial judge asserted that the drug caused the deafness. However, the fault is limited
to reproachment for not taking adequate precautionary steps before administering
the drug to the patient. The tests could not have predicted that the drug caused the
deafness of the patient. Therefore, the doctor’s wrong (not doing the tests) did not
cause the harm (deafness).
• Case went to court of appeal.
Issue:
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Is the doctor liable for the patient’s deafness? (Was there causation?)
Held:
Yes
Reasoning: (Quebec CA)
• CA criticized trial judge on 3 counts:
 1. The doctor had an obligation to inform the patient; he did not allow the
patient to consent.
 2. The doctor did not follow the required procedures for administering
the drug; did not follow necessary blood tests. Nor did he give
adequate attention to the patient’s hearing complaints. Therefore, there
was a wrong that caused the harm… He administered the drug when he
shouldn’t have (wrong), and this caused the harm.
 3. The trial judge did not require the doctor to prove he didn’t cause the
harm. The evidence put forward was sufficient to uphold a reversal
of the onus of proof to oblige the doctor to prove that he hadn’t acted
negligently
• Presumed causation (of the doctor’s wrong causing the patient’s harm) →
 Presumed that hearing loss flowed from the medical treatment (not
due to some external factor), that the prolonged use of the antibiotic is
dangerous (the more you use it, the more the increase in deafness),
 **the failure of the plaintiff to test was a fault which could have
revealed signs of the problem which could have then led to the
remedying of the problem.
• Doctor could not rebut the presumption of causation.
Minority Holding: (Beauregard J.)
-argues that there should be a reversal of the burden of proof.
The defendant did not conduct himself as a doctor ‘bon père de famille’ by not
respecting the dosages/tests that went along with the antibiotic used
 The appellant has not proved that his injuries were caused by the negligence of
the doctor
 However, the reason that he can’t prove it is because the doctor didn’t do
the tests that he was supposed to. In this case, the onus of proof shifts to
the defendant to prove that he did not cause the injuries to the plaintiff.
Ratio:
• Civil law is willing to presume causation when the defendant increases the
risk of the injury (onus of proof shifts to defendant)
** (although this was rejected in an obiter dictum in St. Jean v. Mercier)
St-Jean v. Mercier, [2002]
Facts:
Appellant (SJ) hit by car while hitchhiking, sustained serious injuries (especially to
legs). At hospital, examined by respondent (M), an orthopedic surgeon. Was aware
of suspected T7 spine fracture, but had to do urgent surgery on legs. Went well.
After a couple of days, performed second surgery (not urgent, but should be
51
prompt). After second surgery, SJ could feel contact to legs and feet but couldn’t
move them. M left on vacation but left treatment plan for progressive mobilization.
Once in outpatient physio, M diagnosed SJ with paraparesis.
JH:
Trial court granted SJ’s claim. Court of Appeal reversed. SJ appealed again, claiming
AC was not justified in intervening in trial court’s decision.
Issues:
-Was Court of Appeal justified in intervening to reverse trial ruling?
-Has the appellant established a sufficient causal link between his injury and the
defendant’s alleged fault?
Legal Reasoning: (Gonthier J.)
Issue #1  AC found two errors in trial court judgment that warranted its
intervention:
 1. Error in analysis of fault
o Applied standard test of reasonableness instead of asking if he
behaved as a reasonable doctor (expert standard).
 2. Error in analysis of causation
o Trial judge failed to take position on scientific debate as to
causation – judge must take some position on balance of
probabilities, cannot just stay silent on the issue.
o Either plaintiff discharged burden of proof or he didn’t.
Issue #2
Fault 
 M committed a fault by not further examining or running tests regarding
suspected spinal injury after the first surgery. A prudent doctor would
have = fault.
Causation
 SJ claims injury took place as a result of lack of proper care and
mobilization in hospital. Based on fact that before second surgery he
could move toes, and after he couldn’t.
 M claims violence of accident caused the injury, but it was hidden.
Only blunt force of accident could have caused the amount of
tearing.
o Court of Appeal accepted M’s account of causation, because
appellants could not offer alternative explanation of the torn
ligaments = injury more consistent with M’s account. The surgery
and mobilization in hospital not significant enough to cause that
damage.
 Initial damage caused by accident was so great that any actions taken by
M afterwards were insignificant contributing factors to ultimate injury.
*Appellant did not meet his burden of proof that on the balance of
possibilities, injury would not have occurred “but for” respondent’s actions.
 Appellant’s request that burden of proof be reversed under art. 1480
CCQ denied.
Holding:
52
M committed a fault in treating SJ. However, given magnitude of initial accident,
fault was not significant enough to be causally linked to injury on balance of
probabilities. Court of Appeal did not err in denying his claim. Appeal dismissed.
Ratio:
Rejection of ‘assumption of causation’ argument established in Gburek v. Cohen
where defendant was found liable for increasing risk of the injury.
(Compare with Morin v. Blais: application of CCQ 1480)
- Plaintiff would get more compensation from Civil claim than from the autoinsurance claim that he will get now
Athey v. Leonati, [1996]
Facts:
The appellant suffered back injuries from two major motor-vehicle accidents. Before
the accidents, he had a pre-disposition towards back problems. He was on his way
to recovery from the accidents when he suffered a disc herniation as a result of a
mild stretching exercise; he then brought claims against the other parties of the
accidents.
Issue:
Can loss be apportioned between tortious and non-tortious causes where both were
necessary to create the injury?
Reasoning: (Major J.)
Respondents:
 argue that apportionment is possible according to degree of causation
where loss is caused by both tortious (accidents) and non-tortious (predisposition) causes (Crumbling Skull).
The Thin Skull and “Crumbling Skull” Doctrines:
 Thin Skull: the tortfeasor is liable for the plaintiff’s injuries even where
those injuries are especially severe owing to a pre-existing condition.
 Crumbling Skull: the defendant is liable for injuries caused, but need not
compensate plaintiff for any debilitating effects of a pre-existing
condition which the plaintiff would have experienced anyway.
 The defendant would be liable for the additional damage but not the preexisting damage.
Major J. disagrees: there was no finding of a risk of the herniation occurring
without the accidents.
Causation:
 General Test of Causation: the injury would not have occurred ‘but for’
the negligence of the defendant (accident)
 Courts have recognized that causation is established where defendant’s
negligence ‘materially contributed’ to the occurrence of the injury
o 1. If the disc herniation would likely have occurred without the
injuries sustained during the accident, then NO CAUSATION
o 2. If both pre-condition and accidents were necessary for the
53
herniation, then YES CAUSATION
o 3. If either the pre-condition or accidents alone could have caused
the herniation, then outcome is unclear and Courts must
determine on balance of probabilities whether the defendant’s
negligence materially contributed to the injury
*The trial judge was correct in finding that both the pre-condition AND the accidents
were necessary for the disc herniation
 The trial judge erred in apportioning damages based on this
 Straightforward application of the ‘Thin Skull Rule’
 **As long as defendant is part of the cause of the injury, the
defendant remains liable for all injuries caused or contributed by
their negligence.
o Law does not excuse defendant from liability merely because
other causal factors for which he was not responsible helped
produce the harm.
Holding:
The finding of material contribution was sufficient to render the defendant fully
liable for the damages flowing from the disc herniation. Appeal allowed.
Ratio:
Once it is proven that the defendant’s negligence was a cause of injury, there is no
reduction of the award to reflect the existence of non-tortious background causes
(the Thin Skull Rule reinforces this conclusion).
* Is it a material contribution to what has happened? If so then you’re liable
for the whole damages no matter predispositions
Clements v. Clements, [2012]
Facts:
Plaintiff and defendant were wife and husband respectively. Defendant had many
years of experience riding motorcycles — Defendant went on motorcycle trip with
plaintiff. Defendant wanted to postpone trip due to fatigue and rain but plaintiff
insisted they go. Weight of parties and their luggage exceeded motorcycle's
maximum allowable weight. Parties became soaked in rain but plaintiff still insisted
they continue. During period of light rain, defendant tried to pass sports car that
was travelling at about 108 km/hr. Motorcycle developed extreme wobble, fell on
one side, and then flipped over. Plaintiff suffered severe traumatic brain injury.
Wobble was result of rapid deflation of rear tire caused by nail puncture. Expert
indicated instability of motorcycle would increase as speed and load increased.
Plaintiff brought action against defendant for damages for negligence
JH:
-Trial court judge found defendant liable on meaningful contribution test
-BC Appeal Court set aside judgment because ‘but for’ test hadn’t been proved
Issue:
Does the ‘but for’ causation test apply or was the trial judge correct in applying the
54
‘material contribution’ test?
Reasoning: (McLachlin CJ)
Rule:
 1. As a general rule, plaintiff cannot succeed unless she shows as a matter
of fact that she would not have suffered the loss ‘but for’ the negligent
acts of the defendant
 2. **Exceptionally, a plaintiff may succeed by showing that the
defendant’s conduct materially contributed to the risk of the plaintiff’s
injury where
o a) plaintiff has established that her loss would not have occurred
‘but for’ the negligence of two or more tortfeasors each possibly
in fact responsible
o b) the plaintiff is unable to show that any one of the possible
tortfeasors in fact was the necessary ‘but for’ cause, because each
can point to one another as the possible ‘but for’ cause of the
injury.
Trial Judge made two errors:
 1. Insisting on scientific reconstruction evidence as necessary condition
of finding ‘but for’ causation
o scientific precision is not necessary to a conclusion that ‘but for’
causation is established on a balance of probabilities
 2. Applying a ‘material contribution risk test
o necessary conditions were not present for this test to apply
o this is a simple single defendant case: ‘but for’ the defendant’s
negligent conduct, would the injury have been sustained?
Dissent: (Lebel J.)
Agrees with all the findings/analysis about the law of causation and ‘but for’ test
 Disagrees with ordering a new trial
 The trial judge already found that there was no fulfillment of the ‘but
for’ test, so rejection by the Appeal Court should be upheld.
Holding:
The trial judge erred in applying a ‘material contribution test’. Ruled for the
appellant. Re-trial to find whether defendant was liable on a ‘but for’ test.
Ratio:
A ‘material contribution’ test should only be applied in exceptional situations
involving multiple possible tortfeasors where causation/liability cannot be
specifically placed.
Causation problems:
Have to connect the Tortfeasor’s negligence to the victim’s injury
Connection problems:
Have to connect the cause of the injury to the Tortfeasor
55
Inherent Uncertainty in the Connection
CCQ 2849. Presumptions which are not established by law are left to the discretion
of the court which shall take only serious, precise and concordant presumptions into
consideration.
One of the most complicated and uncertain areas of Tort Law
Contradictory Evidence: (ex. St-Jean v. Mercier)
Unknown Cause/etiology: (ex. McGhee v. National Coal Board)
Several (mutually exclusive) explanations: (ex. Gburek v. Cohen)
Unidentified defendant: (ex. Cook v. Lewis)
* Uncertainty is not the same as contradictory evidence (compare St-Jean and Snell)
 Snell is uncertainty, in St-Jean both sides have solid theories of what has
happened
McGhee v. National Coal Board, [1972]
Facts:
McGhee worked on emptying pipe kilns. He was sent to clean out a brick kiln, which
is much dirtier/hotter than pipe kilns. This resulted in him becoming covered in
soot, after which he had to bike home to clean because the defendant didn’t provide
any showers. A short time later, he was found to be suffering from dermatitis. It is
admitted that dermatitis was attributable to the work he was doing. He is suing for
damages on breach of common law duties to him.
Issue:
Can a defendant be held liable for damages materially contributed to, but not
necessarily proved to be the only cause of the harm sustained?
Reasoning:
Lord Reid:
 A pursuer succeeds if he can show that fault of the defender caused
or materially contributed to his injury; there may have been two
separate causes but it is enough if one of the causes arose from the
fault of the defender.
 The fact that the appellant had to cycle home caked in grime added
materially to the risk of dermatitis
 There must be a broader view of causation
Lord Wilberforce:
 Where a person has, by breach of duty of care, created a risk, and
injury occurs within the area of that risk, the loss should be borne by
him unless he shows that it had some other cause.
 In the absence of proof that the culpable condition had, in the result, no
effect, the employers should be liable for the injury
Lord Simon of Glaisdale:
 The pursuer is entitled to damages for the injury if he proves on a balance
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of probabilities that the breach or breaches of duty contributed
substantially to causing the injury
 Making a distinction between breach of duty and causation is impossible
in cases such as these
 If it is proved that the baths were a provision that any reasonable
employer would take in a similar situation (which they were) it
means that the employer should have foreseen the damages their
absence would cause; this is sufficient prima facie evidence.
Lord Salmon:
 When it is proved, on a balance of probabilities, that an employer
has been negligent and that his negligence has materially increased
the risk of injury to his employee, then he is liable in damages to that
employee if he suffers injury notwithstanding that the employer is
not responsible for other factors which have contributed to the
disease.
 The balance of probabilities cannot be confused with the nature of
causation
Holding:
Appeal allowed. Ruled for the appellant.
Ratio:
Where there are two or more causes to injury, it is unnecessary to prove that the
tortfeasor was the sole cause. The tortfeasor will be found liable if it is proven that
he materially contributed to the harm suffered.
Unknown: the etiology of the condition was unknown to the doctors:
- Was it one abrasion, or the accumulation of abrasions that
caused dermatitis? (if it’s only one, then he could have gotten it
before the bike ride home, and employer could have shucked
liability).
 Would I have gotten dermatitis anyways, even if the
shower had been there?
o Lord Reid: it is logical that the longer you’re exposed, the
more likely it is for you to develop dermatitis either way
Common Law:
‘But For’ Test (CML): (sine qua non: “without which wouldn’t have
happened..”) the harm wouldn’t have happened ‘but for’ the defendant’s
negligence
Civil Law:
- Causa sine qua non test (CVL): defendant’s fault contributed in some way
to the damages
- Has to be proven on facts, not just theory/inference
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
Adequate Causation (CVL): based on what we know based on
experience of the world
Mechanisms for approaching Causal uncertainty:
 Increase of risk reasoning
o Unidentified defendant cases only (in Canada)
o Undermining plaintiff’s ability to prove causation
Snell v. Farrell, [1990]
Facts:
Snell went to ophthalmologist, Farrell, who advised her she had a cataract that
needed to be surgically removed. She consented. One complication is retobulbar
hemorrhage, indicated by a bleed. If it occurs, surgery should stop. During surgery,
Farrell noticed small bleed but found no other sign of RH and so proceeded after 30
minutes. After surgery, Snell developed severe pain and when eye patch was
removed, it was obvious that RH had occurred. Snell went blind in that eye.
Issue:
Legal Issue = Must plaintiff in malpractice suit prove causation according to
traditional principles, or can liability be justified by some less onerous standard?
Substantive Issue = Is Farrell liable for Snell’s loss of sight?
JH:
Trial judge ruled that burden of proof could be shifted, and that defendant did not
meet onus of disproving causal link. Farrell appealed.
Legal Reasoning: (Sopinka J.)
Legal Issue:
 Although neither expert witness could say with certainty whether the
operation had caused the injury, trial judge ruled that facts of the case
brought it within “emerging branch” of the law  onus to disprove
causation shifts to defendant in certain circumstances.
 Precedent = McGhee v. National Coal Board (specifically mentioned by
Lord Wilberforce)
 Derives from principle that where the subject matter of the allegation lies
particularly within the knowledge of one party, that party may be
required to prove it (Gburek v. Cohen)
Demonstrates that allocation of burden of proof is not immutable  both the
burden and the standard of proof are flexible.
 Proof of malpractice often difficult for patient, since doctor is in the best
position to establish cause. Leads to injustice as they are deprived of
compensation since they cannot prove causation where it in fact exists.
 Dissatisfaction with traditional approach to causation stems from its rigid
application – but causation need not be determined with scientific
precision  essentially practical question answerable by common sense.
In malpractice suits such as this one:
 Facts lie particularly within knowledge of defendant
 If he can disprove causation, little plaintiff says can rebut it
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
Justifies an inference being drawn adverse to defendant, which he is
responsible for disproving.
 Technically not a “reversal” of burden because legal and ultimate burden
remain with plaintiff. All this does is establish in the absence of evidence
to the contrary, inference will be drawn adverse to the defendant
that causation has been established.
Substantive Issue:
 Problem is that RH was caused by a stroke behind the eye, which had two
possible causes 
o 1. it was natural, or
o 2. it was the result of continuing the operation.
While Snell’s other health problems could have caused the stroke, no indication that
they did.
 Courts agree that appellant was negligent in continuing operation once
bleed occurred.
 If he didn’t recognize it, he should have
 By continuing and covering eye with a patch, prevented anyone else from
recognizing it.
 Court found that Farell “greatly increased risk of injury” to Snell, and
that even if he didn’t know for sure that she had an RH, he was
“asking for trouble” by operating.
Holding:
This case justifies shifting the burden of proof to the appellant, so that causation
will be inferred unless he can disprove it. The respondent has prima facie
established a causal link between the appellant’s actions and her injuries which
were not adequately rebutted. Appeal dismissed.
It is Doctor’s fault that the plaintiff can’t prove causation (lack of tests)
 Then the onus of proof shifts to defendant
Increase of Risk Reasoning: no proof of contribution, but increase of risk made it
more likely
 To convince the judge to infer causation
 Justification for reversing the burden of proof and placing it on the
Defendant (ex. Snell v. Farrell)
Increase of risk as fact: (ex. Gburek v. Cohen)
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
Risk increase as one of the facts supporting a factual inference/factual
presumption by Court
 Needs to be precise/concordant in CVL (CCQ 2849)
o Is difficult to convince a judge this way
Increase of risk as causation: (ex. McGhee v. National Coal Board (majority),
Beauregard (minority) Gburek)
 Risk increase as a pre-determined (policy) justification to find causation
proven
 Very controversial for Canadian Law (see Clements v. Clements)
o Accepted as argument in Gburek v. Cohen/McGhee
o Rejected as argument in St-Jean v. Mercier
 Material contribution to risk that caused the injury
Laferrière v. Lawson, [1991]
Facts:
The defendant was a physician who removed a lump from the breast of the late Ms.
Dupuis (has since died and is being represented by the Appellant). The defendant
failed to tell the appellant that she had cancer when he removed the lump. It was not
until four years later, in 1975, that she found out, and died in 1978. Action of breach
of duty against the defendant.
Issue:
Can someone be found liable for loss of chance and distress due to negligence,
where the sufficient duty of care would not have made a material difference to the
outcome of the patient?
JH:
Trial judge dismissed the case based on fact that appellant would have died
with/without her being informed of diagnosis.
New Brunswick Court of Appeal found Lawson liable for loss of chance to
obtain treatment and distress that appellant suffered.
Reasoning: (Gonthier J.)
The rules of civil responsibility require proof of fault, causation, and damage
 All the evidence confirms that cancer would have killed the appellant
with or without the diagnosis by the defendant.
o There is no causal link between negligence of Dr. and death of
appellant
Even where statistical and factual evidence do not support a finding of causation on
the balance of probabilities with respect to particular damage (death or sickness),
such evidence may still justify a finding of causation with respect to lesser
damage (slightly shorter life, greater pain).
 Even if there is no causal link between defendant’s negligence and
appellant’s death, causation can still be found between his negligence and
her suffering
o Psychological suffering: (10,000$) denied the
opportunity/choice of seeking medical help/evidence for her
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disease; doesn’t matter whether it would be ineffective
o Physical suffering: (7,500$) had the appellant been aware of her
condition, she could have sought earlier treatment, which would
not have saved her life, but would have significantly improved
her quality of life.
Dissent: (La Forest J.)
Agrees with the majority of the Court of Appeal; would have lowered the damages
slightly, but not enough to make a difference. He would dismiss the appeal
Holding:
Appeal allowed in part; damages lowered, but Lawson held to pay 17,500$ to
Laferrière plus costs.
Loss of chance established by NB Court of Appeal but not recognized by SCC
 SCC rules on psychological/physical suffering not on ‘loss of chance’
 Loss of chance results in overwhelming burden of liability
Loss of chance not recognized in Canada; instead must be analyzed as negligence as
causation for harm on balance of probabilities
- * If the patient walks in with a 70% chance of living and the actions of
the doctor bring him down to 40%, and the patient dies, then on
balance of probabilities it is more likely than not that the negligence of
the doctor caused the harm to the patient.
If it goes from 30% to death, then tough luck (this is the case with Lafferrière)
Clements v. Clements, [2012] (review)
* A ‘material contribution’ test should only be applied in exceptional situations
involving multiple possible tortfeasors where causation/liability cannot be
specifically placed.
St-Jean v. Mercier, [2002] (review)
Holding:
M committed a fault in treating SJ. However, given magnitude of initial accident,
fault was not significant enough to be causally linked to injury on balance of
probabilities. Court of Appeal did not err in denying his claim. Appeal dismissed.
Ratio:
Rejection of ‘assumption of causation’ argument established in Gburek v. Cohen
where defendant was found liable for increasing risk of the injury.
Gburek v. Cohen, [1988] (review)
• Civil law is willing to presume causation when the defendant increases the risk of
the injury (onus of proof shifts to defendant) (Quebec CA)
** (although this was rejected in obiter dictum in St. Jean v. Mercier (SCC)
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Inherent Uncertainty in Identifying Wrongdoer
**Clements v. Clements (in Canada): clears up causation confusion; if the
wrong is a significant contributing factor, then it will satisfy the ‘but for’ test (‘but
for’ is still the test; showing on balance of probabilities that defendant’s negligence
is a significant piece of the picture that caused the harm or the risk of harm)
A) Uncertainty in the Identification of the causal link (cause and effect)
Why?
 Defendant’s behavior (Gburek)
 State of (scientific) knowledge (see McGhee)
 Multiple possibly causal factors (Snell)
Response:
 Shift burden of proof (when?: defendant creates impossibility Gburek,
Cook, Snell; defendant creates risk and injury within that risk)
 Redefine or relocate fault (creation of materially increased
risk/possibility; creation of impossibility)
 Redefine injury (no ability to show causation; increased possibility of
harm; loss of chance?)
B) Uncertainty in the Identification of the Wrongdoer
Why?
 Acting at the same time (impossible to determine sequence of events)
[see Cook, Fairchild, McGhee]
 Passage of time (see Sindell)
 Complexities (of contemporary society) [Vietnam Vets agent orange]
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Response:
 Shift burden of proof (when? Rand Rule) [where defendant creates
impossibility: Gburek, Snell]
 Share responsibility (CCQ 1480; joint behavior: joint and several liability;
market share) [Sindell, Fairchild, Morin v. Blais (?)]
 Redefine fault and injury (marketing; experience as someone exposed to
risk)
Uncertainty cases: McGhee, Snell, Gburek, Cook
McGhee: Lord Wilberforce
 “Where a person has, by breach of duty of care, created a risk, and
injury occurs within the area of that risk, the loss should be borne by
him unless he shows that it had some other cause.” (Van Praagh
likes this definition)
 shifted burden to defendant to show that it was some other cause
When are we going to allow this material increase of risk causation argument?
 Has to be narrowly defined/allowed
 Clements in Canada and Fairchild in England trying to reign material
contribution to risk argument back in
CCQ 1480: Where several persons have jointly taken part in a wrongful act which
has resulted in injury or have committed separate faults each of which may have
caused the injury, and where it is impossible to determine, in either case, which of
them actually caused it, they are solidarily liable for reparation thereof.
Ex. Morin v. Blais
Cook v. Lewis, [1951]
Facts:
Plaintiff Lewis hunting with a small group of friends. Two of them, Akenhead and
Cook, fired almost simultaneously at a group of birds. Then realized that Lewis had
been shot, causing him to lose an eye. Both A and C asserted they had not shot in
that direction, only at birds.
Issue:
Both men are at fault, but it is impossible to determine which of their faults resulted
in the injury. How should liability be assigned?
Legal Reasoning: (Cartwright J.)
 Arguments of the parties:
o Plaintiff = Either C or A or both shot at him and each was liable even if
only one had struck him.
o Defendants = Each claimed it was “impossible” that he had shot Lewis,
and that it was either the other defendant or a third person who had
caused the injury.
 It could not be established on the facts which defendant fired the shot which
caused the injury. The rule in this case is that neither can be held liable unless
there are “special circumstances.”
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
Lewis argues special circumstances  A and C were joint tortfeasors
engaged in a joint enterprise and as such, each were liable for the acts of the
other.
 Essentially, the defendants did two things by their initial negligent act:
o 1. Put plaintiff’s security in danger and failed to fulfil reasonable duty of
care towards him.
o 2. Made it more difficult or impossible for him to prove damages to get
compensation (destroyed victim’s power of proof).
Rand J.:
 To find neither of them liable simply because it cannot be established whose
negligence caused the injury would be unjust – each acted negligently towards
plaintiff, and the injury resulted from that negligence. They are both
wrongdoers  the burden of proof should be shifted to them rather than
resting on plaintiff, who has been put in an unfair position by being required to
prove whether A or C caused the harm.
 Solution  The onus or prima facie transmission of responsibility attaches
to both, and the question of the sole responsibility of one is a matter
between them.
Holding:
The two defendants each committed a fault towards the plaintiff, one of which
caused his injury. The fact that the plaintiff cannot prove which due in great part to
the fault itself, both defendants will be held liable, even if it is clear that only one
shot caused the injury. As between two faulty parties and an innocent victim,
the onus should be on the former. Appeal dismissed.
Dissent: (Locke J.)
 It could not be determined at trial which defendant was guilty of causing the
harm.
Facts do not meet necessary requirements to support a claim of “joint adventure”
that would allow for application of the special rule. They were hunting individually,
in each others’ company. Such a simple act cannot entail liability for the acts of
another.
Fairchild v. Glenhaven Funeral Services, [2002]
Facts:
Involves three cases involving the same circumstances. Appellant was exposed to
asbestos fibres in a number of different work locations and developed the cancer of
mesothelioma as a result. The trigger of this disease could have been from a single
fibre from one of the employers, or it could have been the result of a build up from
all of them.
JH:
One succeeded at trial level, was appealed by defendants. Court of Appeal did not
find causation, dismissed appeal. Now at House of Lords.
Issue:
Where multiple parties are responsible for breaching their duty of care to the
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plaintiff, can defendants be found severally liable for harm produced, even though
causation cannot be specifically linked to any of them?
Reasoning: (British House of Lords)
Lord Nicholls of Birkenhead:
 The unfortunate consequence that one innocent hunter will be found
liable for an injury he didn’t commit is outwheighed by the possibility
of the injured party not receiving recompense for his injury
o Cook v. Lewis
 Similarly, a former employee’s inability to identify which particular
period of wrongful exposure brought about the onset of his disease out
not to preclude recovery of compensation
o McGhee v. National Coal Board
 It was enough that the employer had materially increased the risk of
harm to the employee
Lord Hoffman:
 Based primarily on McGhee
 It is sufficient that the breach of duty contributed substantially to the risk
that the claimant would contract the disease when:
o 1. Dealing with duty specifically intended to protect employees
against exposure of risk of disease
o 2. Duty is intended to create a civil right to compensation for
injury relevantly connected with its breach
o 3. It is established that the greater the exposure to the harm
producing agent, the greater the risk of contracting it
o 4. Medical science cannot prove whose harm producing agent
more likely than not produced the harm
o 5. The employee contracted the disease against which he should
have been protected
o A breach of duty which materially increased the risk should be
treated as if it had materially contributed to the disease in cases
like these
Holding:
Appeal Allowed.
Ratio:
Where an employee has been exposed by different defendants to a harm producing
agent in breach of the defendants’ duty to him, and where that risk resulted in
serious harm to the employee, but the causal link to a specific tortfeasor is
impossible, a modified approach to proof of causation is justified. In such a case,
proof that each defendant’s wrongdoing had materially increased the risk of
contracting the disease is sufficient to satisfy causation to therefore find all
contributing parties severally liable.
Sindell v. Abbott Laboratories, [1980]
Facts:
65
Women brought class action suit against a number of drug companies having
manufactured DES for their mothers during pregnancy. The drug resulted in serious
defects in the daughters, which were latent for some 20 or 30 years (minimum 10
year latency). The injury resulted in cancer and other vaginal growths as well as
other serious vaginal complications. Due to the significant period of time elapsed
since the drugs were taken, plaintiff knows the drug, but not the manufacturer.
Issue:
Can the plaintiff claim damages for injury caused by a drug when she knows the
drug involved, but cannot identify the specific manufacturer responsible for her
particular injury.
Legal Reasoning: (Supreme Court of California: Mosk J.)
 The plaintiff is not at fault for failing to be able to identify the specific
manufacturer – the extended latency period of side effect made it impossible.
 Though defendants are not better aware of who made the specific drug, they do
have opportunity to prove that they didn’t supply it in this case [reversal of
onus of proof?] (e.g. one didn’t start making DES until after plaintiff was born).
 This case must be distinguished from “two hunters”  With the hunters, there
are only two defendants (both on trial), and it is known that one of the two of
them caused the injury. In this case, there were about 200 DES manufacturers,
and the specific one that caused the injury may not even be on trial.
 However, the rationale behind the “two hunters” still applies  As between an
innocent plaintiff and negligent defendants, the latter should bear the cost
of the injury.
o In this case, even more persuasive because defendants are better able to
bear cost.
 Solution  Will measure likelihood that any of the defendants supplied product
which injured plaintiff by the percentage which the DES sold by each of them
bears to the entire production of DES in California.
o Will fairly apportion damages among defendants
o Will be determined by its share in the market
o Company can avoid liability by proving that it could not have
manufactured this particular DES. [reversal of onus of proof]
Holding:
Although it cannot be determined which specific manufacturer of DES caused
plaintiff’s injury, they were all negligent, and each of their products certainly caused
injury to someone. This responsibility will be approximated by determining
responsibility of each manufacturer based on market share at the time, unless they
can prove they didn’t manufacture it.
Dissent (Richardson):
 Plaintiff has conceded she is unable to identify particular defendant that caused
her injury, and there are only some of the DES manufacturers on trial.
 Majority is attempting to hold manufacturers liable for an injury caused by a
product even though it is possible – even likely – that their particular product
played no role.
 This judgment rejects over 100 years of tort law, which required “matching” of
66
defendant’s conduct and plaintiff’s injury before liability
could be established.
Furthermore, the market share as a means of apportioning liability is unfair and
unrepresentative.
* Point is that when plaintiff is confronted with uncertainty that is not of their doing,
but is related to the way the injury comes about, it is unfair. Courts will then be
prepared to modify overly simplistic “but for” test.
- material increase of risk (Gburek v. Cohen, McGhee, Fairchild)
- several liability (Morin v. Blais, Sindell, Cook)
Rand Rule (from Cook v. Lewis): reversal of burden of proof when the defendant has
destroyed the ability to prove causality
Mass Torts
Weinstein, “Ethical Dilemmas in Mass Tort Litigation”
Main question of the essay: has the single client legal system developed in
accordance with the mass claimant phenomenon that is growing more common as
population rises?
 Defendant Corporations: attorney’s stonewall and build up huge
discovery systems to fund large defense firms and break financial backs
of plaintiffs’ attorneys
 Plaintiffs: counsel often greedy for fees, not emotionally connected to
their clients, not adequately screening their cases
Ethical issues are many and complex
 Examples of cases: Agent Orange, Asbestos, DES
 Notices atmosphere similar to that in big public interests cases (Mark
Twain desegregation case, reform of Suffolk County Developmentally
Disabled Center)
**Both public interest and mass tort litigations implicate serious political and
sociological issues
 embody disquieting uncertainties about modern society and the
individual’s relation to our institutions
Requires great sensitivity/understanding by the Courts/lawyers involved
**”Mass Torts are public interest cases.
Speaks toward the move towards government directed compensation programs to
sort out these types of huge litigations
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 Ex. Residential Schools Settlement
Indeterminate Plaintiffs: (Agent Orange example)
 Impossible to figure out which plaintiffs have cancer because of defoliant
and which have cancer naturally
 Because of mass settlement scheme, all who were exposed get something
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