- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
3) Illegality (Ex Turpi Causa Non Oritur Actio)
Ex turpi causa non oritur actio is a long-established maxim of the common law. Loosely translated it means that no action may arise from a base cause. It embodies an intuitive reaction that plaintiffs who are involved in illegal conduct and other serious wrongdoing when they suffer damage should not be permitted to engage the legal system to pursue a remedy.
The scope and application of the illegality or ex turpi defence in negligence law has been the subject of much debate and uncertainty. Initially it played a minor role, operating to deny a claim by a plaintiff whose injuries arose from joint criminal activities undertaken with the defendant. For a brief period of time, the defence gained greater prominence. This coincided with the restriction of the defence of voluntary assumption of risk. Ex turpi was seen as a vehicle that could be used, in some cases, to outflank the restrictive interpretation of that defence and fully deny a claim where a judge strongly disapproved of the plaintiff's wrongful conduct. Some judges began to suggest that the defence was not restricted to situations of joint criminal enterprise but might be available wherever "the conduct of the plaintiff giving rise to the claim is so tainted with criminality or culpable immorality that as a matter of public policy the Court will not assist him to recover." [Note 167: Hall v. Hebert (1991), 6 C.C.L.T. (2d) 294 at 302 (B.C.C.A.), Gibbs J.A.] This revitalization of the defence was, however, short-lived.
The Supreme Court restricted the scope and application of the ex turpi maxim in Hall v. Hebert. [Note 168: Above note 162.] In that case, the litigants, two young men, spent the evening drinking to excess and driving around in the defendant's car. When the car stalled, the plaintiff passenger asked if he could drive. The defendant agreed, and in the course of roll-starting the powerful manual-shift car, the plaintiff lost control of it and was injured. The defendant was held liable because he surrendered control of his car to a grossly intoxicated driver. The primary issue was the applicability of the defence of illegality since the plaintiff's conduct in driving while intoxicated was both negligent and illegal. The Court interpreted the defence in a very restrictive manner. It held that the defence can operate only when the integrity of the legal system is threatened by allowing the claim. This normally arises in only two narrow situations. A plaintiff is not permitted to use a tort action to make a direct profit from illegal conduct, and a tort action may not be used to circumvent, subvert, or negate a criminal penalty. In Hall the Court held that the defence was inapplicable to the case under appeal. An award of damages to the plaintiff for injuries caused by the defendant's negligence did not amount to profiting from an illegal activity. Its purpose was to compensate the plaintiff for his loss and there was no suggestion that any criminal penalty was being avoided. The plaintiff was, however, found to be 50 percent contributorily negligent.
The Hall decision, for all practical purposes, makes the defence of illegality inapplicable to negligence actions. The Court has shown a clear preference to apportion damages in cases dealing with undeserving plaintiffs. This approach is compatible with the restrictive interpretation of the defence of voluntary assumption of risk and secures a degree of deterrence on both parties and some degree of compensation for the plaintiff. The Court's commitment to this view may, however, be severely tested in more extreme cases. It is hard to imagine that the Court would hold a manufacturer of a firearm liable for a negligent defect that injured the plaintiff when he was in the act of shooting another person or that a municipality would be liable to a person who slipped on a dangerous sidewalk while running away after committing a violent sexual assault. Even less exaggerated situations will test the Court's resolve to maintain the defence within the narrow boundaries set by Hall.