Date: Sat, 24 Mar 2007 15:08

From: David Cheifetz

Subject: Contributory negligence in strict liability?

Harold,

At least in Canada, though, the question is no longer just whether the apportionment statutes apply. That's only the first question. So, the argument the old cases make that the apportionment statutes are to be interpreted only to apply to cases where contributory negligence was a defence at common law is spent once it's used (if it's used at all) to interpret the statute. After that, the judge has to decide if there will now be an analogous non-statutory remedy, changing the common law if need be. The Supreme Court of Canada has ruled that Canada's Charter of Rights and Freedoms means that judges are to interpret the common law so that it keeps up with the times. The existence of statutory apportionment remedies applicable only to some situations which are identical factually but differ legally only in the [historical] extent of the cause(s) of action available to the injured persons was seen as enough of a problem to produce a change in the common law.

I've long thought the argument that the apportionment remedy should be interpreted from the position that it should only help the injured person - the cases where contributory fault would have defeated the action at common law - but not require the injured person to bear appropriate responsibility for his or her misconduct - the cases where at common law it didn't matter - was unprincipled. If the statute refers, as the Ontario statute does, to "any action founded upon fault or negligence" then rushing back to the common law to parse the causes of action misses the point. The argument wasn't often made in the interpretation of the Canadian statutes. It likely was in some cases but, at this point, I can't remember any leading case where it was.

In any event, that problem is moot in common law Canada since the judges are busy crafting apportionment remedies analogous to the statutory where the statues don't apply. I can't be blamed for this. Ernie Weinrib restarted the modern process in his seminal "Contribution in a Contractual Setting" (1976), 54 Can. Bar Rev. 338. I'm not even referred to in my home province, anymore - Treaty Group Inc. v. Drake International Inc., 2005 CanLII 45406.

David Cheifetz

________________________________
From: Harold Luntz
Sent: March 24, 2007 10:03 AM
Subject: RE: ODG: RE: Contributory negligence in strict liability?

In Higgins v. William Inglis & Son Pty. Ltd. [1978] 1 NSWLR 649, a scienter action involving a bull, the NSW Court of Appeal cited conflicting text book views on whether contributory negligence is a defence to an action based on strict liability and then reviewed three pre-apportionment English decisions, concluding:

I think it proper to deduce from the way in which emphasis has been placed in these decisions on the view that the plaintiff's conduct was really the only cause, that mere contributory negligence was not a defence to an action founded on the strict liability incurred by the owner of an animal who kept it with knowledge of its dangerous tendencies.

The decision that contributory negligence was not a defence at common law and therefore did not provide a partial defence under the apportionment statute as worded at the time has been followed in at least two subsequent Australian cases.

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