Date: Wed, 1 Feb 2006 20:41:52 -0800

From: Joost Blom

Subject: Two Questions

Robert, on problem two, I think there's a useful discussion in the 1997 B.C. Court of Appeal decision Cempel v. Harrison Hot Springs Hotel Ltd.

Lambert JA says at para. 19:

"The Negligence Act requires that the apportionment must be made on the basis of 'the degree to which each person was at fault'. It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances."

That was a contributory negligence case, not a two-tortfeasor case, but I think the principle is the same. And the reference to "the amount" by which each causative agent "fell short" of the standard of care suggests that the learner driver should, indeed, bear a less than 50% share of the blame as against the professional chauffeur. All the best,

Joost

---------------------------------
Joost Blom, Q.C.
Professor
Faculty of Law, University of British Columbia
1822 East Mall
Vancouver BC V6T 1Z1
Canada

tel. (+1) 604-822-4564
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>>> Robert Stevens >>>

I have two questions which I cannot answer for myself arising from what I am working on. Any help, offlist if preferred, gratefully accepted.

 

Problem One

We have recently discussed an employer's vicarious liability for exemplary damages and vicarious liability for an employee's obligation to make restitution of a gain made by the employee.

Are there any cases where an employee, acting in the course of employment, commits a tort which results in a gain for the employer but not the employee? Is the employer obliged to make restitution? In principle I think the answer should, generally, be yes, if this is the sort of tort which permits of this response but are there any cases?

 

Problem Two

In a claim for contribution between two careless tortfeasors, does the court apply the same test in determining relative 'fault' as it would in deciding whether the tort has been committed? So, if two drivers D1 and D2 both carelessly cause a car accident which results in injuries to P, could D1 argue that she was a learner driver whilst D2 was a professional chauffeur so that the contribution as between the two of them should not be equal? Or, as between D1 and D2 do we apply the objective standard which we would apply in the claim by P against either one of them? Cases?

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