LAWG 101 ECO / Torts

LAWG 101 – ECO / Torts

Prof. Stephen Smith

Summary Winter 2017

Alexandra Klein

Table of Contents

1.Injury: Existence and Assessment

A.Injury (Jan 17-19)

The Measure of Injury – Chamallas & Wriggins – 2000

Parker v Richards [1990] – CML

Le Préjudice Corporel – Gardner – 2009

Independent Assessement Process (IAP) for continuing Indian Residential School Abuse Claims

B.Limits of Recovery (Jan 24)

Ter Neuzen v. Korn [1995] – CML

Curateur Publique v Hôpital St-Ferdinand [1996] – CVL

Augustus v Gosset [1996] – CVL

2.Limiting Liability on the Basis of the Injury, Relationship, or Actors

A.Introduction (Jan 26) – Plenary (Smith)

Comparative Tort Law – Scope of Protection – Wagner – 2006 – CML

Weller v Foot and Mouth Disease Institute [1996] – CML (UK)

Hedley Byrne & Co v Heller & Partners [1963] – CML (UK)

Elliott c Entreprises Côte-Nord Ltée [1976] – CVL

Page v Smith [1996] – CML (UK)

Augustus v Gosset [1996] – CVL

B.Wrongful Life & Birth (Jan 31)

McKay v Essex Area Health Authority [1982] – CML (UK)

McFarlane v Tayside Health Board [1999] – CML (UK)

Cooke v Suite [1995] – CVL

C.Privacy (Feb 2)

Aubry c Éditions Vice-Versa Inc [1998] – CVL

Von Hannover v Germany [2004] – GERMANY

Jones v Tsige [2012] – CML

An Act to Address & Prevent Cyberbullying SNS 2013, c 2 (99)

D.Human Rights (Feb 7)

Choc v Hudbay Minerals Inc [2013] – CML

La Protection des droits fondamentaux et la responsabilité civile – LeBel

3.The Common Law Duty of Care

A.Introduction to ‘Duty of Care’ and its Counterpart, ‘Causation in Law’ (Feb 9) – Plenary (Van Praagh)

Palsgraf v Long Island Railroad [1928] – CML (US)

Palsgraf as ‘Transsystemic’ Tort Law

B.The Concept of the ‘Duty of Care’ (Feb 14)

Article 1457 CCQ

Donoghue v Stevenson [1932 ] – CML (UK)

Home Office v Dorset Yacht [1970] – CML (UK)

Anns v London Borough of Merton [1977] – CML (UK)

City of Kamloops v Nielson [1984] – CML

Cooper v Hobart [2001] – CML

C.Duties to Benefit/Rescue (Feb 16)

Article 2 Charte des droits et libertés de la personne

Articles 1457 CCQ

Articles 1471 CCQ

An Act to Promote Good Citizenship Articles 2 and 12

The Good Samaritan Protection Act

Tort Law: Scope of Protection – Van Gerven

Agapè – N Kasirer

Childs v Desormeaux [2006] – CML

Crocker v Sundance [1988] – CML (skip sections 4, 5, 6 of the judgment)

D.Emotional and Psychiatric Harms (Feb 21) (also: Secondary Victims and Relational Loss)

Article 1053 CCLC

Article 1056 CCLC

Who Lost What? Relationship and Relational Law – Van Praagh

Régent Taxi v Congrégation des petits frères de Marie [1929] – CVL

Augustus v Gosset [1992] – CVL

Alcock v Chief Constable [1992] – CML (UK)

Annetts v Australian Stations Pty Ltd [2002] – CML (AUS)

E.‘Pure’ Economic Harms? (Feb 23)

Article 1067 CCLC

Weller v Foot and Mouth Disease Research Institute [1966] – CML (UK)

Elliott c Entreprises Côte-Nord Ltée [1976] - CVL

Hedley Byrne & Co v Heller & Partners [1963] – CML (UK)

Cooper v Hobart [2001] – CML

CNR v Norsk Pacific Steamship [1992] – CML

Bow Valley Husky v Saint John Shipbuilding [1997] – CML

Hercules Managements Ltd v Ernst & Young [1997] – CML

F.Civil Liability and the State – Plenary (Saumier) (Mar 7)

Liability for Failure to Regulate Health and Safety Risks – Van Boom & Pinna

Cilinger c Québec (PG) [2004] – CVL

Williams v Ontario [2009] – CML

R v Imperial Tobacco Canada Ltd [2011] – CML

4. Defining the Scope of Civil Liability: Legal Causation

A. Legal Causation: Directness and Foreseeability (Mar 9-14)

Art 1607 CCQ

Causation in the Law – Hart & Honoré

Chapter 5 – Cane – pp. 118-129

In Re Polemis and Furness, Withy & Co [1921] – CML (UK)

Overseas Tankship v Morts Dock (Wagon Mound 1) [1961] – CML (UK)

Obligations: Responsabilité Délictuelle – Starck, Roland & Boyer

Brisson c Potvin [1948] – CVL

Morrissette v McQuat [1958] – CVL

Joly v La Ferme Ré-Mi [1974] – CVL

Hughes v Lord Advocate [1963] – CML (UK)

Palsgraf v Long Island Railroad [1928] – CML (US)

B. Multiple Wrongdoers and Multiple Causes (Mar 16)

Deguire v Adler [1963] – CVL

Q v Minto Management [1988] – CML

Caneric Properties v Allstate [1995] – CVL

Home Office v Dorset Yacht [1970] – CML (UK)

C. Consolidation (Mar 21)

D. Predisposition of the Victim (Thin Skull Rule) (Mar 23)

Les Conditions de la Responsabilité – Viney

Smith v Leech Brain & Co. Ltd [1962] – CML (UK)

Marconato v Franklin [1976] – CML

Corr v IBC Vehicles [2006] – CML (UK)

E. Victim’s Behavior (Mar 28)

Hydro v Girard [1987] – CVL

Contributory Negligence Act

Crocker v Sundance [1988] – CML

Waldick v Malcolm [1991] – CML

Gaudet v Lagacé [1998] – CVL

F. Consolidation (Mar 30)

1.Injury: Existence and Assessment

A.Injury (Jan 17-19)

Types of damages

Compensatory

Pecuniary (patrimonial/special)
Bodily injury
Material injury
Non-pecuniary (extra-patrimonial/general) (Jim Russell Int. Racing Drivers School c. Hite)
Moral injury

Pecuniary damages are more tangible and can easily be proven with receipts or other types of mechanisms (market value, etc)

 Non-pecuniary damages are harder to assess since they deal with people’s feelings, souls, dignity, etc

Non-pecuniary damages are usually assessed under specific heads of damages: pain and suffering, loss of enjoyment of life, impact on personality, impact on confidence, impact of aesthetic blow to the person

It’s impossible to put a number on moral damages, so we must decide in terms of policy concerns and philosophical foundations

Deterrent

Punitive/exemplary
Beyond what you would get for pain and suffering
Focuses on the defendant’s behaviour
Very similar to criminal law, but the money goes to the victim
In some instances, people say it’s used to basically make up for the fact that they have to pay for their lawyers
CML: accepted, in certain circumstances:
Committing a tort intentionally and to make a profit (ex: newspaper defames someone but figures they’ll make so much money that it’s worth it)
Malicious prosecution
CVL: only allowed for breach of the Charter
Many people think it is just wrong – if you want to punish, you should use the criminal law

Injury/damages

3 questions raised re injury/harm

Do you need an injury in order for there to be civil liability?
In CVL, need injury (1457) to get damages
In CML, it depends on the tort (Chamallas & Wiggins)
For negligence must have injury/harm
For intentional torts (trespass, assault etc) you don’t require a loss/harm (nominal damages)
Is symbolic to show you did something wrong and will be held liable
Part of a bigger story about what CML cares about – rights in an abstract sense as opposed to CVL
When you do need injury, what counts as an injury/harm?  Biggest diff between CML and CVL
CVL: anything you can imagine as a harm – very expansive notion
Harm includes anything that hurts your dignity, your respect, your physical self, finances, moral, etc anything that causes you to be worst off
CML: many things you may call harm but are insufficient, don’t count as injury for purposes of negligence
Pure economic loss: ie: economic prospects, only setback is financial  NOT recoverable (CML explains via duty of care)
Ex: defendant carelessly cutes power line and your business has no power so shut down for 2 days and lose sales
Consequential economic loss: economic loss you have due to property being damaged  IS recoverable (CML explains it via trying to measure the value of the loss/assessing damages)
Pure emotional harm: mental distress and suffering  NOT recoverable
Ex: if someone carelessly kills your friend, you can’t recover because it’s only emotional
Note: psychiatric harm though is physical
Exception: for death of family members via statutes
Consequential emotional harm:  IS recoverable
When there’s sufficient injury, how do you assess the measure of damages (ie: how much money you’ll get)?
CVL: compensatory damages (pecuniary and non-pecuniary)
CML: compensatory damages (pecuniary and non-pecuniary, includes pain and suffering) and punitive damages
A lot of the questions turn around very technical data that depends on the facts and require a lot of proof
You have to consider: (1) life expectancy (2) earnings (with and without the injury) (3) collateral benefits (what the person gets from other insurances)

The law isn’t consistent in either system, in its way of dealing with collateral benefits and this concerns normative questions

Instrumental/utilitarian theories v corrective justice/right-based theories

Can be applied to damages but provide 2 diff solutions
Instrumental/utilitarian: damages as incentives to prevent wrongdoing from taking place in the future, trying to make the world a better place –forward-looking
Justice/right-based: justice demands that the wrongdoer pays damages to the victim to achieve justice and redress the wrong –backward-looking

What’s the point of giving damages?

Continuity thesis: damages are continuation/substitute of original duty (next best way of performing your duty)
Originated in K law, and still works best in K –it’s used in torts but it’s trickier
Hard to assesshow much money we have to give to make up for the breach of contract or duty and put the person back into their original position –it’s too technical
Symbolic/expressive thesis: damages are like an apology, something symbolic
The law attempts to say to the defendant that what they did was wrong, they should be punished for acting badly, and the law will force you to pay money to vindicate and express that this shouldn’t have happened
 Fits way better with punitive damages, and pains and sufferings
When we consider punishments as symbolic as in this theory, it’s a sort of gesture to ask for forgiveness for the harm suffered by the plaintiff rather than being completely accurate and technical as to what’s owed

3 approaches for calculating non-pecuniary damages

(Curateur Publique v Hôpital St-Ferdinand)

Conceptual approach: gives each kind of damage an objective, universal, specific value
Has the disadvantage of not accounting for the victim’s unique situation and has generally been rejected
Whereby we categorize diff types of losses and determine a monetary value which attaches to each
Personal approach: attempts to calculate the specific moral damages that a particular victim feels due to the injury
In cases of low or average loss, this is the preferred approach, although in serious cases it can be arbitrary and is thus not optimal
 Reflects point of view that we can compensate individuals and that money can restore individuals per restutio in integrum
Whereby the individual’s particular characteristics and circumstances are taken into account (in concreto approach)
 Adopted by CVL (Jim Russell Int. Racing Drivers School c. Hite; Ouellette v Tardif)
Functional approach: adopted in CML provinces, which values injuries by the cost of equivalent pleasures and/or measures required to return a person’s life to the pre-injury condition
Money acts as a substitute for the pleasure and enjoyment lost and endeavours to alleviate, as far as possible, the pain and suffering
 Reflects the point of view that money cannot realistically restore individuals per restutio in integrum
Whereby the goal is to provide solace, not about compensation in the sense of restutio
 Adopted by CML (Parker v Richards)

 In practice, there’s no real diff between CML and CVL, and both use a combo of the above approaches in determining damages

Smith doesn’t see how personal entirely differs from the functional approach

The purpose of damages is that of repairing the injuries, and bringing back the person to the position she was in

Obviously some guesswork will have to be done to assess what are the damages that must be awarded
We cannot know what one’s life would have been like or what one’s life will look like: so we have to guess what the person’s life will look like now given the accident and what the person’s life would have looked like
We have to make a guess about salary and about life expectancy
We have specific variables that are relevant to look at in order to assess how much would a person’s salary have been or what would have been the life expectancy: gender, race, geography, education, and any other variable that might give a statistical picture as to what degree this person’s life is “worth”
In other words, ECO has so far been concerned with having statistical accuracy over people’s “worth”
Some argue that ECO then simply uses damages to reinforce and accept social inequality. We take those inequalities as given and reproduce them in assessing the damages. To what degree is this appropriate? Should tort law reproduce this inequality?

CVL

CVL focuses very heavily on the objective of full compensation. It recognizes a greater variety of injuries than does the common law and is typically more generous in its compensation
Compensation is due when one party infringes on the legitimate interest of another or an objective loss, whether it be patrimonial or extra-patrimonial in nature
What types of moral damages does the law recognize? Loss of enjoyment of life; esthetic prejudice, physical/psychological pain and suffering; inconvenience, loss of amenities; sexual prejudice
Moral damages should be compensated via the personal approach, assessing the damages in terms of the injury’s effect on the specific victim in question and not on abstract principles

CML

CML adopts a functional approach to assessing compensation for damages on a basis of pecuniary loss
Damages are based on future income prospects of the deceased or injured
Relevant criteria for this include gender, age, education, participation in the labour force, marital status, ethnicity and socioeconomic background

Jim Russell Int. Racing Drivers School c. Hite [1986] – CVL
FACTS

H was working for a racetrack operated by R
H was training with one of the race cars when he crashed into a chain that would normally have been raised
Caused severe facial disfiguration and he needed extensive surgery, despite not losing any mental or real physical capacity
HISTORY: trial judge awarded damages for the injury to H’s bodily integrity and to his personality, R appeals

ISSUE
1. How do QC courts assess compensation?Court will consider capacity of gain beyond simple pecuniary loss – H must be fully compensated for his patrimonial (economic) and extra-patrimonial (moral) losses
2. Can moral damages (prejudice of extra-patrimonial rights), which cannot be monetarily quantified, be compensated? YES
REASONING
The injury sustained to H.’s face is more than physical  definite moral suffering

It takes away his confidence
It prevents him from expressing himself and communicating with others as he normally could have done

QC diverges from CML approach
QC courts should not adopt the functional approach based on categories adopted by the CML
 CVL offers compensation for both physical and moral damages (injury to extra-patrimonial rights – ie: no pecuniary value (ex: personality rights))

Goal is the objective compensation of a legitimate interest or right which has been injured
The loss does not have to be pecuniary

 The CML notion that compensation should only be so much as allows the damages to be balanced

CML is reluctant to award moral damages

In concreto approach to damages
Qc. courts should adopt a reasonable approach based on the individual loss, and not based on abstract rules

Damages are assessed in an in concreto fashion
Facial disfigurement fundamentally affects communication, interpersonal relations and the identity a person projects to the world and it may even prevent H from working in jobs that require contact with the public  it has both patrimonial and extra-patrimonial elements which require compensation

RATIO
1. Under CVL, both physical and moral (non-pecuniary) damages are compensable based on an evaluation of the individual’s personal loss with an in concreto approach
2. In civil law, moral damages should be compensated via the personal approach, assessing the damages in terms of the injury’s effect on the specific victim in question and not on abstract principles
COMMENTS
N.B. This ruling implies that the rules of the SCC with respect to compensation in CML should not restrict CVL judges
Ouellette v Tardif [2000] – CVL
FACTS

T, a university-educated priest, was hit while swimming in a lake by a boat driven by O’s 14 yr old son, while O was waterskiing behind and his son was not looking in front of him
 Injuries prevent T from returning to work as a missionary in Africa where he had a vow of poverty
HISTORY: trial court found responsibility to be 75%-25% as T was wearing a dark bathing suit

ISSUE
1. Was T contributorily negligent? NO
2. What is the correct method for determining compensation for T? Court must consider ‘capacity of gain’ beyond pecuniary damage
REASONING
T’s vow of poverty does not affect his right to receive compensation
 The vow is to a 3rd party – ie: the mission, and has nothing to do with O’s obligation to compensate

Where the actual work does not have a clear income, the court can refer to statistical evidence rel. to a comparable job – here they use the avg salary of a university professor

Gain lost by the victim – loss of earnings capacity
You want to look at more than simple pecuniary damage and consider also the capacity for gain lost by the victim
 T tried, but was unable to return to his work in Africa his handicap completely impeded his pursuit of his career

 Trial judge erred in assessing that the injury resulted (medically) in a 31.5% loss of physical capacity as, given that the victim could no longer work at all, the loss of capacity of gain was actually 100%

Trial judge erred in considering the rest of T’s life as factoring into the calculation of potential income lost

Calculation should be on the basis of “active life” – ie: until when he would have been working, which statistically is 65 yrs. old, and not for life despite what the Fathers of the his mission normally did

It is important to assess the impact of the handicap in concreto
 Ie: rel. to the given situation
Contributory negligence
T is in no way responsible for the accident will receive 100% of any damages awarded

Faute lourde on the part of O and his son

RATIO
1. Damages must be awarded in concreto, taking account of the victim’s specific needs and abilities
2. In QC, the court must consider “capacity of gain” when assessing compensation for injuries (ie: pecuniary damage for loss of income is calculated upon the loss of capacity to earn, not the actual income)
COMMENTS
All pecuniary damages are very specific: the numbers are based on statistical data or actual expenses measured with receipts. All non-pecuniary damages, however, are rounded off which is usual for these types of injuries because it’s hard to give a perfectly accurate amount that represents the damage