Date: Thu, 4 May 2006 16:40:47 -0300

From: Vaughan Black

Subject: Childs v. Desormeaux

Ah well, after all these fine words I predict that the SCC will not find liability tomorrow, and all because one cannot count on the defendant's being insured. It found commercial host liability because bars have insurance, and we could have liability for employers who allow too much booze to be served at office parties. They'd most likely be insured too.

But, even if the homeowner in Childs had insurance that would cover his liability in this case, we can't count on that being the case. Lots of homeowners in Canada lack third-party liability insurance.

I'm not suggesting that the SCC will give this as its reason. Only that it determines the result.

vb

Quoting Lewis KLAR:

I thought I was finished but Stephen drew me back in.

I am not sure if Stephen intended to state that I reject his notion that as fellow human beings we have moral duties to help each other and if we unreasonably fail to do so, we fail in our duty. Because if he did mean this, he is incorrect, I am totally with him. I was discussing legal duties, and more specifically tort law duties. I was not referring to moral duties or even to statutorily imposed duties; only tort duties. For what it is worth, I am a pretty caring guy and believe that we all have moral duties to help each other out. What I reject, and I think he knows this, is the creation of legal duties to assist by common law judges in tort, based only on their own personal moral values, with assistance from counsel to lead them onto the right path in case the judge goes morally astray, in private causes of action in tort. There are lots of reasons why I believe this, but that is for another time.

As for letting the drunk off, I agree that the drunk is not let off. The drunk has to pay for the damage done, even if someone else gas to pay as well. We are all agreed on that.

As for Richard Wright's point that to try to separate the party from the after party, as I tried to do, does not work, let me reply. I agree it does not work if you include in the activity of "hosting" the party, the additional responsibility of seeing that everyone gets home safely. The same for driving a car. If you consider part of the responsibilities of driving a car carefully, the responsibility to stay and help out if there is an accident, even if the driver actually drove carefully, then a driver who does not stay has breached his or her duty. But that begs the question. What does "hosting" or "driving carefully" entail? Why is it the host's responsibility as host to make sure everyone gets home safely, even if the host took every conceivable precaution to ensure that the drinking at the party was reasonable? Is it because the host "created the risk" by hosting a party? The same could be said of the person who supplied the alcohol, the person who invited the drunk to the party, the persons who helped organize the party, and so on. Why draw the line at the host? Unless the host's negligence was the effective cause of the ultimate accident which distinguishes the host from everyone else I mention, the host is a mere stranger (legally speaking, not theologically or morally). And yes, for the record I agree that everyone has a moral duty to do something about the drunk, and if they do not, it is shameful. Maybe society through its elected representatives should do something about it and pass a law!

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