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4) Inevitable Accident

Reference can be found in Canadian negligence law to the defence of inevitable accident. [Note 169: Rintoul v. X-Ray & Radium Industries Ltd., [1956] S.C.R. 674.] It arises most often in cases of automobile accidents caused by brake or other mechanical failure. These situations present strong circumstantial evidence of the defendant's negligence and the defendant may feel obliged to respond in the strongest manner. This gives rise to an argument that the loss was caused by an inevitable accident, and evidence may be offered by the defendant to show that the motor vehicle was kept in good repair and regularly inspected. It is doubtful, however, if this is a defence in the true sense of the word. The debate is over whether the defendant took reasonable care. If the loss was caused by an accident, inevitable or otherwise, there is no liability. On the issue of reasonable care, the ultimate burden of proof is on the plaintiff. The defence of inevitable accident is, therefore, something of a legal curiosity, neither helpful nor particularly harmful. It merely emphasizes the centrality of fault and indicates that a defendant may try to rebut the plaintiff's case by adducing evidence of his own showing that reasonable care was taken and the accident was unavoidable.

CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES

H. Remedies

The remedy for plaintiffs who suffer loss as a consequence of the defendant's negligence is an award of damages. Damages may be compensatory, aggravated, or punitive. In negligence actions, the primary focus is on compensatory damages. They are essentially restitutionary in nature, being designed to place the plaintiff in the position she would have been in if the negligent conduct had not taken place. Aggravated and punitive damages play a very modest role in negligence law. Aggravated damages are also compensatory in nature. They are awarded for the humiliation, embarrassment, or distress caused by the nature and gravity of the defendant's wrongdoing. Punitive or exemplary damages are awarded when a defendant's conduct is so outrageous, vicious, malicious, or despicable that it warrants a severe reprimand and punishment. It is in the nature of a civil fine payable to the victim. The conduct of defendants in negligence cases rarely warrants either aggravated or punitive damages. They are most commonly awarded in cases of intentional injury.

The general restitutionary principle of compensatory damages is applicable to personal injury, fatality, and property claims but most judicial energy is expended on personal injury and fatality cases. Not only has tort law always given high priority to personal security, but personal injury and fatality claims present the most technically difficult assessment issues. The patterns of insurance also dictate that courts are primarily concerned with personal injury and fatality claims. Property, both real and personal, is normally insured on a first-party basis. Consequently, when property is damaged, destroyed, or stolen, its owner is more likely to turn to her first-party loss insurer than to commence a tort action. Insurers do have a right of subrogation which allows them to recoup payments they have made to the insured by exercising the insured's tort rights against the wrongdoer who caused the loss, but that right is not always exercised. First-party insurance against death and disability is much less common and it may be inadequate to cover catastrophic losses. Much greater reliance must therefore be placed on the fault/ liability insurance system to secure adequate compensation. Emphasis will accordingly be given to the assessment of compensatory damages for personal injury and for losses arising out of fatal accidents. [Note 170: The authoritative treatise on personal injury and fatality damages is K.D. Cooper- Stephenson, Personal Injury Damages in Canada, 2d ed. (Toronto: Carswell, 1996).]

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