>>>
David Cheifetz 10/11/06 2:25 >>>
All:
I'm
defending a property damage claim in which earlier conduct of the
claimant is, arguably, one of the causes of the later incident that
resulted in the damage.
Some
years before the incident, the claimant was told by an outside consultant
to do some work which the consultant considered necessary. If done,
that work would have prevented the later incident from occurring.
It didn't do the work.
One
of the reasons for the recommendations was the structural safety
of the item given existing damage. The other was to avoid additional
damage (in the future) from recurring incidents of the type that
had occurred before, had produced the safety conditions that resulted
in the consultant's recommendations, and would probably continue
to happen in the future on a regular basis. In fact, one did - that
which produced the action I'm defending.
One
of the claimant's explanations (excuses) for not doing the work
is that the consultant's advice was wrong. That's a factual issue.
The
other excuse is cuter and perhaps something plausible only in a
Canadian common-law jurisprudential context since we've maintained
the Anns policy/operation dichotomy. The claimant says
that even if the consultant was right, it didn't have enough money
to do that work and other unrelated work it thought more necessary
in other areas.
I
wouldn't be concerned about that argument if advanced by a private
citizen, since it amounts to asserting impecuniosity (not caused
by the wrongdoer) as an excuse for not taking reasonable care.
On
the other hand, the claimant, in my case, is a public authority.
What it's doing is trying to use the "policy decision"
argument Canadian public authorities sometimes successfully use
as a defence in liability cases as a valid excuse (against contributory
fault) for not following the consultant's advice, if one assumes
that it was the correct advice that should have been followed and
would have been followed if the claimant had unlimited funds.
The
claimant is, of course, claiming that it made the policy decision
after a proper consideration of factors.
It's
a strange sort of impecuniosity. The authority didn't have the money
because it didn't ask for it. Of course it didn't have the budget
to do everything that might be done but that's irrelevant. I think
it's a correct assumption that it could have got more in the budget
by asking for more money and it would have got more if it had asked
for it if the request was justified. And, it would have asked for
more if it had thought the work immediately necessary which would
have made the request justified. Catch-22. I've not thought through
the consequences of the conclusion (unrealistic, I think) that the
money never would have been there.
There
were public safety issues, but that shouldn't make a difference
to the analysis except make the request more justifiable if the
consultant was right.
I'm
inclined to view the case as one in which the authority took a calculated
risk that nothing untoward would happen, and lost. I don't think
that makes it volenti (given modern apportionment approaches) unless
I find a memo (or equivalent) in the public authority's "files"
which is the equivalent of Ford's "it's cheaper to pay damages
than recall and repair" Pinto memo. However, I don't expect
to be that lucky.
I'm
not aware of any cases or articles. Is anyone else? I have asked
the government's lawyers if they know of any basis.
All
comments welcome, off-list if preferred.
