CVL Fault

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CVL Fault by Mind Map: CVL Fault

1. 1457: General clause

1.1. Duty not to be N at large

1.2. circumstances, usage, law

1.3. Principle of neighbour interpreted broadly, therefore no question of DOC

1.4. Did you act as a reasonable person? (Oeuvre des terrains de jeu)

1.5. Omissions count as N, just as much as acts (Labelle c Gatineau), it depends on FORESEEABILITY



3.1. 1457 + 1607 : broad definition of injury that is covered by law

3.1.1. does not restrict liability based on nature of the harm

3.1.2. There is no hierarchy of protected interests

3.1.3. Must be legitimate and personal (subjective)

3.1.4. Moral damage is protected equally Augustus c Gosset: possibility of recuperating solatium doloris as secondary victim, in CML, this would only be possible for pecuniary dmg Montreal v Dorval: there is no prescription applied through cases where moral dmg can be linked to physical dmg

3.1.5. Pure economic loss is covered (will depend on causation rather than DOC) (Régent Taxi) loss of value of the work of a religious brother In (Elliott) the claim was denied on the basis of causation (profit lost through hiring 2 employees), not nature of prejudice

3.2. 1607: No discrimination between type of prejudice (moral, bodily, material) must only be direct an immediate (objective) SEE CAUSATION

4. Neminem laedere: no matter the nature of the prejudice, must be reapired if proven and causally connected to the damage suffered (Lacroix)

5. Assessment of dmgs: justifying the claim (objective , it doesn't depend on whether the damage is subjectively felt or not: Curateur Publique)

5.1. Assessed in concreto (Hite v Russel)

5.2. Can be patrimonial, extra patrimonial (Hite v Russel)

5.3. Can be pecuniary/non-pecuniary (Ouelette v Tardif)

6. Methods of calculating dmgs: 3 approaches used to calculate nonpecuniary dms in CVL, depending on the situation, what is best suited to compensate the victim) guided by neminem laedere

6.1. Conceptual approach: each kind of dmg has an objective, universal specific value

6.2. Personal: Depends on what is felt by the victim, and adapts to his situation

6.2.1. In cases of moral injury through another, here are some criteria that can be used to calculate dmgs (Augustus v Gosset): quality of the relationship, personality of the victim, emotive vulnerability, the circumstances

6.3. Functional: Cost of equivalent pleasures lost or cost of measures required to return victim to enjoyment of life prior to the dmg

7. Serves as a filter between fault and causation

8. Must be direct and immediate: 1607, but this offers vague guidance... so here as some other criteria to consider when establishing causation

8.1. the standard is "adequate causality" which is defined as "le cours normal des choses" (Brisson v Potvin)

8.2. There is also the language of reasonable foreseeability used in certain cases (Brisson v Potvin)

8.3. To qualify as a cause, it must be an "efficient cause" and not merely be permissive of the accident. This is a distinction between cause and condition. (Morisette v McQuat)

9. If applied strictly, direct and immediate seems indiscriminate to the extent of dmg This kinda looks like Polemis rule.

9.1. In Joly, direct and immediate succeeded, as there was no NAI

9.2. In Régent Taxi, we see that secondary victims are not discriminated by the criteria of directness

9.3. However, in Elliott we see that if there is another cause which is more direct, then causation might fail

10. CVL law is rather permissive when it comes to moral damages to "rights": there is a logic of compensation for interference with a legitimate interest

10.1. Art. 49 of the Charter : allows damages for interference with right/freedom

10.2. Art. 4 protects dignity & reputation

10.3. Protection of privacy, which has to be balanced with freedom of expression (Aubrey)

11. Multiple Faults

11.1. Deguire establishes conditions for joint and several liability in mutiple wrongdoers

11.1.1. 1, a fault committed by 2/more persons

11.1.2. 2.causal link between damage and the faults. On this second criteria the judge used the notion of continuous fault, which does not get negated by the passing of time = not closing the valve is the fault rather than leaving it open at that time) The dissidence makes a disticntion between causa causans (effective cause) and causa sine qua non (permissive cause) (note how the way fault is qualified here allows different conclusions

11.1.3. 3.single dmg resulting from the fault

11.2. The question of multiple faults and causal link is a hard one (Caneric, a case with 3 faults and 2 Ds, 1 DMG)

11.2.1. Here it was decided on the basis of remoteness that the 1st fault was too distant in time. (direct and immediate), could also see it as 2nd and 3rd fault acting as NAI, i guess.

11.2.2. When teh gravity of dmg is the same or cannot be assessed, will be jointly and severally liable at 50/50. (This rule will apply to contributory N)

12. There are techniques aside from causation to limit the extent of fault in CVL (Lacroix)

12.1. 1471: In cases of good Samaritan, the standard is higher (gross or intentional fault) There is also an (Act to Promote Good Citizenship) which offers compensation in case of death

12.2. 1461: Same for vicarious liability of custodians of crazy ppl

12.3. There are certain state immunities!

12.3.1. Although the state may be held liable (Dorval) there are limiations

12.3.2. Cilinger v Quebec: there is a protection of policy decisions and exercise of discretion. The duty is towards the public at large (Here there is use of ANNS!). Tort does not judge the soundness of political, social and economic decisions, budgets and resource allocation will fall under this

13. NOVUS ACTUS INTERVINIENS (NAI): an external factor can break the chain of causation if it can be deemed the direct and immediate consequence rather than the fault in the claim

13.1. Note that there is a preference towards (this is from P. Cane, but the logic can be extrapolated towards CVL, i think)

13.1.1. Human vs natural In City of Montreal, the flood was not qualified as Force Majeure, which could have been a NAI. Instead it was deemed that there could've been something done by the city to prevent the flood (note that this was a case of act of a thing, so liability was strict, and had to be rebutted)

13.1.2. Faulty vs innocent

13.1.3. Gravity of the fault

14. Contributory Negligence

14.1. (1477 + Gaudet v Lagacé): assumption of risk (through participation) does not entail renunciation of remedy

14.2. (1478) allows the possibility of attributing proportionate liability to the victim

14.3. (Hydro v Girard): there is the possibility of the victim being the sole cause of the injury (100% liable towards himself), ex: in this case of clear carelessness, the victim's act will be considered a NAI.

14.3.1. In Hydro, there is also the rule that a danger cannot only be a passive one that ca be avoided (unless in case of urgency or being stranded in a no choice situation), it has to be an "effective cause". here the only cause deemed effective is the gross imprudence

15. I am guessing that NAI could be used to break the chain of faults (in itself, the concept of effective cause is NAI

16. Predisposition of the victim (Viney): does it break causation by being a dmg that is too remote? not foreseeable? (CVL language: not direct and immediate?)

16.1. If it is a predisposition, then THIN SKULL RULE applies (take victim as is), same as CML

16.2. If it's a case where the victim is already suffering from a condition, then won't be held liable for the extent of that suffering (would be if the dmg considerably modifies the nature of that condition)

17. It was considered in (Lapierre) that there should be a move towards a risk based regime, but this was rejected an left to the legislator.