Wed, 1 Feb 2006 20:41:52 -0800
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.
JA says at para. 19:
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."
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 Blom, Q.C.
Faculty of Law, University of British Columbia
1822 East Mall
Vancouver BC V6T 1Z1
fax (+1) 604-822-8108
Robert Stevens >>>
have two questions which I cannot answer for myself arising from
what I am working on. Any help, offlist if preferred, gratefully
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.
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?
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?
Previous Message ~ Index ~ Next