-----Original
Message-----
From: David Cheifetz
Sent: May 12, 2006 9:09 AM
Subject: ODG: Childs v Desormeaux
Food
for thought -
To
me, the content of the reasons at both appellate levels suggests
that the only argument the Childs' side put to the judges was the
broad social host duty where allegation is that the host has the
duty to monitor the guests consumption of alcohol and the impugned
conduct is nothing more than misfeasance of the garden variety type
- nothing more than 'merely' failing to take reasonable steps to
monitor. There is nothing apparent in the reasons that suggests
any attempt to succeed on an argument that the Courrier's conduct
was something more than that. In particular, there's nothing more
in either level of appellate reasons that indicates an attempt to
build an argument for liability based on the finding at trial that
Courrier was deliberately blind to the amount of alcohol that Desormeaux
drank.
It
might be that that limited argument was made in the facta. However,
if was and was not pursued, one would think it would have been mentioned
in either the Ont CA or SCC reasons.
MADD's
"principle" interest is the broad argument. MADD "wins"
only if the case succeeds on the broad argument. MADD would have
"lost", in principle terms, if the case succeeded on a
narrow basis and produced the same dismissal as we have of the broad
duty.
It
would, of course, increase the "pressure" on the appellate
levels to find for Ms Childs on the broad duty if the narrow case
wasn't made at all, only the broad duty. However, it would also
reduce Childs' chances of succeeding.
Hypothetically,
why would the Childs family agree to limiting her chances of succeeding
against Courrier? The answer might be this. Courrier probably had
no more than 1 million of liability insurance and very little more
in other exigible assets. If we take into account what Ms. Childs'
recovery and future payments from available insurance, it might
well be that the extra million wouldn't have made a practicable
difference to her future life. I do not know what her the damages
might have been. They were never assessed. The trial was bifurcated
so the damage determination was put-off pending the liability decision.
Even on a plaintiff-favouring assessment, it's reasonably possible
that the assessment wouldn't have exceeded available insurance by
a relevant amount, particularly once we start playing which the
value of structures. This is particularly so if we assume there
was something about her future plans that means a small future loss
of income award and a small past and future medical expense claim.
Ontario law does not permit her to claim for her past and future
medical expense paid or payable under the provincial medical plan.
Her maximum claim for non-pecuniary general damages (pain and suffering,
loss of amenities etc) might have been the cap; but that's still
less than 300,000.
