TORT (COLLISION) Torts & Delicts in General

TORT (COLLISION)

1. Torts & Delicts in General

• 
  Stems from the territoriality theory - the state in whose territory wrong occurred is said to have a legitimate concern in regulating conduct within its borders.
  
• 
  Those within a border of a state must adhere to the standards of conduct prescribed by the state. People should be able to gauge the risks of their conduct.
  
• 
  Also supported by rights theory (Beale) and the idea that torts/delicts give rise to an obligation that follows the wrongdoer everywhere and determines extent of wrongdoer's liability.
  

• 
  Place of wrong may be only incidentally connected with whole cause of action (mobility of ships and airplanes). Can result in some manifestly illogical decisions.
  
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  Potential ambiguity when wrongful act in one jurisdiction produces harm in another (pollution, products liability, defamation). Tetley - It should be limited to being one of many contacts (Babcock v. Jackson)
  

• 
  Some say that lex loci should now be law of place where injury or damage occurred rather than law of place that wrongful act committed.
  
• 
  UK overruled lex loci by 1870 in Phillips v. Eyre.
  
• 
  Common law Canada adopted Phillips in decisions like Campbell v. McGregor (1889) NBCA. In Quebec, lex loci governed until 1930, and then overturned by O'Conner v. Wray.
  
• 
  US – “place of wrong” began to lose favour in 1950's – proper law of the tort.
  
• 
  Most modern authorities have advocated more flexible approach favoring "most significant relationship" with tort & points of contact. (Reflected in EEC Draft Tort Provisions 1972)
  
• 
  Note: France still uses lex loci delicti as its operative principle.
  

2. General Rules for Choice of Law in Tort/Delict

   1. England & Double Actionability

1. Phillips v Eyre (1870) 6 QB 1.

• 
  That case stand for the general rule that ‘civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law.’
  

As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be such a character that it would have been actionable if committed in England (had to be actionable in England). Secondly, the act must not have been justifiable by the law of the place where it was done.

1. 
   Act complained of must be "actionable" in English internal law.
   
2. 
   Wrongful act must not have been "justifiable" by law of place where it was committed.
   

• 
  Tetley - Ambiguity as to whether it is a mere "jurisdictional rule" or true "choice of law rule." Seems to allow for English lex fori to govern the dispute. UK Law Commission responds by saying that English courts have no objection to foreign law if English public policy is satisfied.
  
• 
  Further problem that requirements do not weigh equally on both parties, tort claimant can only proceed if established law according to both systems but defendant can benefit for defenses of either system.
  
• 
  Rule is also complicated by Chaplin v. Boys "flexible exception" whose nature and extent has not been established
  
• 
  As a result, the Double Actionability rule is no longer applicable. It would be better to proceed immediately with the determination of the proper law by the closest and most real connection test.
  

This rule is not much more than an all-embracing doctrine of domestic public policy of the forum imposed by English courts on foreign torts. Foreign law must, as a result, comply with English tort law. The U.K. Law Commission’s Report, 1990 proposes to abolish this rule and adopt lex loci delicti or most significant elements test. U.K. Draft Bill has also proposed that this rule be abolished…and advised the above mentioned tests instead (p.436 with exceptions and escape hatch). Need closest and most real connection instead as a general principle.

1. Canada (Common Law)

• 
  Pre-Phillips general rule was lex loci delicti…now basic restatement of Phillips in McLean v. Pettigrew [1945] is the basis of law. However, 'not justifiable' in Part II of test is modified by Machado v. Fontes to mean 'wrongfulness' and is not simply a case of civil responsibility (less restrictive 'not justifiable' than UK and can now include civil, criminal and penal liability in the place where wrong occurred).
  
• 
  No exception to rule in form of most significant relationship. It is expected that the SCC will move in this direction, however.
  

1. Tolofson v. Jensen, [1994] 3 S.C.R. 1022. – p.47 and 200 CB

The rule of private international law that should be generally applied is the law of the place where the activity occurred. It is certain and easy to apply and predictable, as well as meets the reasonable expectations of ordinary people – double actionability is rejected because this would invite forum shopping and the application of different laws depending on the forum in respect of the same wrong. In light of Constitutional arrangement, need a rule that ensures that an act committed in one part of the country will be given the same legal effect throughout the country. Need certain rule but also need a fair rule so need a strict exception that involves some timely and close relationship between the parties. As for procedure vs. substance, the procedural rules exist for the convenience of the court, and apply as lex fori. Statutes of limitation are substantive because they create rights.

• 
  Court rejected attempt to bring suit in BC, said that Saskatchewan law would apply.
  
• 
  Court applied lex loci delicti (law of the place where the act has occurred) as opposed to double actionability – way to solve everything is to have a common law.
  
• 
  Common domicile rule had not yet developed
  
• 
  Proof of foreign law does not have to be done with as much rigor as previously
  
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  One of the main goals of any conflicts rule is to create certainty…order and fairness but order comes first
  
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  Rejection of American interest analysis
  
• 
  Major – exception is where lex loci rule would work an injustice – getting ready for common domicile rule – an enormous breakthrough because the basic rule up to that point was the rule of double actionability (law of the forum).
  
• 
  La Forest comments on common domicile rule and 3126(2) – not applicable – establishes exception of closest and most real connection (common domicile indirectly by using closest and most real connection)
  
• 
  Major says that lex loci is applied but need not be absolute – exception when an injustice would be caused or the parties choose to be governed by lex fori.
  

Couldn’t recover in Saskatchewan for two reasons and court in BC said that Saskatchewan law applies because of lex loci delicti rule (3126 CCQ and following).

2. Gagnon v. Lucas, [1994] 3 S.C.R. 1022. – p.47 CB

• 
  Court held that Quebec law would apply both by virtue of the no-fault insurance scheme and lex loci delicti.
  
• 
  Quebec law applies also because barring any other considerations the legislature of Quebec clearly intended that these provisions should apply to all persons who have an accident in Quebec regardless of their province of residence. Auto Insurance Act clearly overrode the general law.
  

Under Quebec law, everybody benefits but you can’t get more then a certain amount and you can’t sue. Court ruled that they crossed over into Quebec and are subject to Quebec law.

Common domicile rule in ComL

Two Ontario residents had an accident in Minnesota and the court did not apply the lex loci delicti despite Tolofson – the Ontario CA said that the lex loci rule would work an injustice.

The judge applied the common domicile rule in considering the following circumstances

that the parties were both residents of Ontario

that the contract of insurance was issued in Ontario

there was no connection with the state if Minnesota other than it was the place of the accident

although the accident occurred in Minnesota, the consequences to the members of the injured plaintiff’s family were directly felt in Ontario

the uncontradicted evidence before the T.J. was that the claims of this nature are not permitted under Minnesotan law (judge looks at the consequences (result driven) – will lose in Minnesota so no justice will be done)
Leonard v. Houle [1997] Ontario C.A.

2 Ontario residents have an accident in Quebec. Court of Appeal said that the lex loci applies (as opposed to common domicile rule). There was a mandatory rule in the Automobile Insurance Act.

There was no actionable wrong without the injury, which occurred in Quebec. The accident was caused by an automobile regardless of the events which preceded the accident.
Wong v. Lee [2002] Ontario C.A.

Accident in NY between 2 Ontario residents – lex loci delicti applies

Judge says that mere differences in policy do not qualify as an injustice and cannot give rise to the exception to the lex loci delicti rule. The policy behind the rule is to create certainty in choice of law rules in order to achieve fairness…comity also requires that respect be given to the policy of the place where the act occurs.

Why didn’t it follow Sardesky? Certainty, comity, but moreover it was that the time limitation provision was a substantive rule and not a procedural rule, so Ontario courts did not have to apply it.

3. Tetley "New Development In Private International Law: Tolofson v. Jensen and Gagnon v. Lucas" American Journal of Comparative Law: vol. 44. CB p. 18

Both cases are torts and traffic accidents where injured parties were not residents in the province where the accident occurred. Action instituted in the home provinces of injured parties.

• 
  In both cases Supreme Court held that that applicable law (in private international law) was not the law of forum but the law of the place of accident or tort.
  

It is suitable for federal state to do so – recognizes property and civil right of province [an attempt by a province to impose liability for negligence in respect of activities taken place wholly in another province by residents of the latter, or residents of a third province would give rise to serious constitutional concerns].

Certainty and uniformity in the Canadian state [a tort in one province will be adjudicated upon similarly in any other province] – essential under our constitutional arrangement.

Order (first) and fairness as preconditions for justice [to prevent forum shopping]. Order is a precondition to justice, and while it may bring some unfortunate results of lower damages, these are concomitant of the territoriality principle.

Comity domestically and internationally [each state has jurisdiction to make and apply law within its territorial limit, absent a breach of some overriding norm – the other state as a matter of 'comity' will ordinarily respect such action and be hesitant to interfere with what other state chooses to do within those limits]. Mentions importance with respect to mobility rights, wealth and skills across state lines, etc.

This is a one of a kind rule, a general principle that cannot answer every question which is why the real and substantial connection test is used, coupled with the forum non conveniens rule.

Depecage (possibly) – Each problem arising from a single event may have a different applicable law. Place of accident = law of responsibility; the law of the place where damage suffered = measure of damages + interest. There are situations where the act takes place in one place but the consequences are felt in another and in such a case we may apply the concept of depecage (place of accident will govern responsibility but damages will be covered by the law of the place where the damages are felt.

Time bars- Supreme Court almost accepts depecage, classifies time bars/statutes of limitation as substance not procedure, but LaForest says limitation periods included in the various rules of court such as those for filing pleadings are procedure. [Time bars are determinative of a right so they are substantive, while the other is a formality]. Tetley - thinks Supreme Court should have said that each legal issue, including time bars may be subject to a proper law of its own rather than substantive/procedural dichotomy. Time limitations are substantive in CCQ (3131 CCQ – it does not say that the prescription rules are of the forum) and Canadian ComL (this was not so before this case) so there is uniformity across Canada.

Also took a strong stance with respect to substance/procedure dichotomy in stating that procedure can be termed formalities of the forum court and are distinguished from areas affecting rights of litigants. Long overdue modernization.

Lex loci is a one-of-a-kind rule (not a number of rules like Dicey) but may be difficult to apply to complex situations – so as per Tolofson there must be exceptions found in the 'real and substantial connection test' coupled with the forum non conveniens rule [another big step – court has jurisdiction but refuses to hear a case includes real and most substantial connection to prevent undue interference where another more appropriate court could better render justice to all parties – Canadian, UK, US and Quebec all apply this principle to avoid renvoi]. Ensures that a court may exercise jurisdiction only if it has a 'real and substantial connection' with the subject matter and prevents overreaching. Need for flexibility with regards to choice of substantive law

• 
  These cases are a giant step forward in distancing Canada from English common law and providing Canadian ratios. They discard the substance/procedure dichotomy for substance, evasion/fraud formalities of the forum court and add certainty to Canadian Maritime law. However as we have no federal conflict rule to deal with law Tetley still pushes that Supreme Court needs to adopt a better methodology [like his own].
  

4. Orden v. Grail [1998] S.C.R. 437.

• 
  The Ontario Court [general division] shares concurrent jurisdiction with Federal Court trial Division over maritime fatal accidents claims by dependants under s.646 of the Canada Shipping Act. Parliament must use express statutory language where it intends to assign to jurisdiction of the Federal Court. Under s.646 the dependants can bring suit for action for damages in the Admiralty Court in s.2 of Federal Court Act, but s.646 makes no express reference to exclusivity of jurisdiction in Admiralty Court. This allows for concurrent jurisdiction.
  
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  Canadian Maritime law is not limited by scope of adoption of English Admiralty law in 1934 -- it is only limited by Constitutional Division of powers and much is the product of internal law.
  
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  Court applies a four part test to determine if provincial statute is constitutionally applicable in context of maritime negligence law:
  

1. 
   Does the subject matter affected by the statute fall within the exclusive federal competence over navigation and shipping?
   
2. 
   Is a counterpart to the statutory provision on which the party seeks to rely is within existing Canadian maritime law?
   
3. 
   If there is no counterpart then is it appropriate for Canadian non-statutory maritime law to be altered in accordance with the principles of judicial reform of the law developed by the court [considering social, moral and economic fabric of Canadian society and international community & ramifications upon Canada and international maritime law]?
   
4. 
   If judicial reform of the law is inappropriate, court must determine if provincial statutory provision is constitutionally applicable [statute of general application would be inapplicable if it indirectly regulates federal maritime negligence law by supplementing existing rules and effectively altering the exclusive competence of parliament or otherwise. [inter-jurisdictional immunity with regards to maritime negligence law and collision, possible claimants, scope of available damages and availability of a regime of apportionment of liability according fault].
   

• 
  s.647(2) of Canada Shipping Act which provides for the awarding of damages in relation to a dependant's fatal accident claim is silent as to the nature of compensable loss and whether damages may be awarded to a dependant person injured but not killed in a boating accident. In the maritime context s.645 Canada Shipping Act sets out the list of eligible plaintiffs and does not include siblings. It is inappropriate for the courts to undertake the task of expanding the list of eligible claimants unilaterally by reforming non-statutory maritime law in order to supplement the statutory provision.
  
• 
  Since the determination of eligible class of plaintiffs with regards to maritime negligence action claims is clearly an issue of maritime negligence law under navigation and shipping the Family Law Act is constitutionally inapplicable to allow bringing in of dependant's claims by siblings whether involving a fatal accident or personal injury. Given that dependant's claims for loss of guidance, care and companionship may be brought under Canadian maritime law without resort to provincial statutes it is unnecessary to address the constitutional applicability of part V family law act. Trustee Acts in each province allow only an executor could bring a claim on behalf of the deceased and there is a general regime of apportionment of liability applicable to Canadian Maritime negligence actions.
  

• 
  Consider, however, a case in which A causes damage to B and the relationship of B to C is such that damage is also suffered by C (e.g., loss of maintenance). Should the governing law be the lex loci delicti (i.e., the law to be applied if the action is qualified as a tort) or that of the law as determined by the application of the choice of law rules in respect of the relationship between B and C (e.g., marriage)?
  

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  There is no hard and fast rule as to how ricochet damage disputes will be qualified or, by extension, as to which choice of law rules will apply. Normally, however, in the interests of fairness to the defendant, the dispute will be qualified as a tort and the lex loci delicti will hence generally govern.
  

• 
  In some cases, a plaintiff suffering injury by way of tort may choose not to sue the direct actor but to sue a person or party – normally one with a deep pocket – who is in some kind of relationship with the direct actor party and may render him or her liable to the plaintiff for that person’s actions.
  

• 
  Relationships that may enable a plaintiff to sue a third party include, inter alia, relationships of: agency; employment (vicarious liability); partnership; parent-child; or even owner of a car (where the driver of the car caused the injury).
  

• 
  Consider the following: An action was brought by three US domiciliaries against a UAE domiciliary who was also a Japanese citizen. The UAE domiciliary was alleged to have caused damage to the US plaintiffs in a car accident occurring in BC. The car driven by the plaintiffs was rented in Colorado and the car driven by the defendant was rented in Washington. The plaintiffs sought to sue the Washington car company. Some fundamental questions arose: Where could the action be brought? The action was brought in BC. Why? Not convenient to bring it in the domicile of the defendant (i.e., the UAE). Further, most probably it could not have been brought in Colorado or Washington due to lack of minimum contacts or, if minimum contacts were established, on the basis of forum non conveniens. Was the relationship of the car rental company with the driver enough to render it potentially liable for the actions of the driver? A number of cases have established that the car rental company in such a situation can be held liable. Were the choice of law rules to be applied those relating to tort or those relating to the relationship between the driver and the car rental company? This question is to be determined on the basis of an interest analysis. Which legislature has the greatest interest in the dispute or a closer connection with the dispute? What would each legislature say about the law to be applied if it was presented with this problem? The better view in cases such as this is that the dispute be qualified as a tort and hence that the governing law be the lex loci delicti. However, of 15 cases involving fact situations similar to the one presented here, half have been governed by the lex loci delicti and the other half have been governed by the law of the relationship (i.e., the law of the place in which the car was rented).
  

1. Quebec

• 
  Under CCQ Art. 3126 extra-contractual responsibility is generally subject to the place of the act, but may be subject to the law of the country where the injury appeared if the person who committed the act should have foreseen that the damage would occur there (lex loci damni)…if the perpetrator of the delict and the victim both have their domiciles in the same country the law of that country will apply. There are exceptions for manufacturer liability and raw materials origination in Quebec.
  
  • 
    the tort is governed by the place in which it occurs – lex loci delicti
    
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    place of the injury’s appearance if it could have been foreseen that it would have occurred there (ex: I put chemicals in my stream that go over the border into Vermont and injure your land there – I should have foreseen it)
    
  • 
    (2) – if there is an injurious act, no matter where, and the person committing the act and the victim have their domiciles and residences in the same country the law of that country applied (common domicile rule)
    
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  CCQ 3127 – where an obligation to make reparation for injury resulting from nonperformance of a contract, claims based on the nonperformance are based on the rule applicable to the contract (law of the contract)
  
  • 
    1458 CCQ – non-cumul – can’t sue in both or use the law that is more favorable to you – cannot avoid the rules governing contractual liability for those more favorable
    
  • 
    2127 CCQ – the rule of conflict is dealt with by the contract and not the tort
    
• 
  CCQ Art.3129: exposure to or use of a raw material originating in Quebec (should be in property section)
  
  • 
    Tetley thinks this is an obligatory forum court statute and should be in the rules of property
    
  • 
    these rules are imperative in the matter of civil liability for damage suffered in or outside Quebec as a result of exposure to pr the use of raw materials, whether processed or not, originating in Quebec
    
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  CCQ Art. 3128 The liability of a manufacturer is governed, at the choice of the victim, by either the law of the country where the manufacturer is established or his residence, or the law of the country where the product causing the injury was acquired.
  

• 
  It appears that Tolofson and Gagnon only apply to common law provinces and not Quebec conflict rules as it was only common law courts that were involved. However, LaForest J. does express disapproval of an exception to lex loci delicti which in domestic conflict would permit the law of common residence of the victim and tortfeasor to displace lex loci delicti [which would seem to limit 3126] at the same time however he recognizes the distinct nature of content of Quebec's conflict rules and it exceptions. It is unlikely Tolofson would be imposed on Quebec such as to override its conflict of law rules particularly since the new CCQ and with regards to federalism. This distinct nature of law is recognized in Tolofson.
  

1. Australia

• 
  Originally adopted the UK double actionability. In Breavington v. Goodleman (1988) High court rejected double actionability for interstate torts in favour of lex loci delicti (left law for international torts uncertain).
  
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  In McKain v. RW Miller & Co (1991) and Stevens V. Head (1993) High Court of Australia - double actionability was restated and reaffirmed even for domestic conflicts.
  
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  Proposed draft legislation similar to UK reform hoped to reduce to two rules of lex loci delicti and most significant elements + exceptions for substantially greater connection, defamation (where damages is felt), motor accidents and worker's comp. They, like the U.K. appear to be moving towards a lex loci delicti rule, with a proper law exception founded in the closest and most real connection.
  
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  Tetley - Why not just closest and most real connection with limited rebuttable presumptions?
  

1. United States

• 
  Until 1950's used territorial theory - lex loci delicti since First Restatement.
  
• 
  Now largely replaced by most significant relationship based on points of contact between the torts and competing systems to determine which system has closest and most real connection with claim. (Morris, interest analysis + Restatement 2^nd s.145, 1969). Contacts include:
  
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  See Restatement 2^nd s.145 which adds the contacts of:
  
  • 
    place where injury occurred
    
  • 
    place where the conduct causing injury occurred
    
  • 
    domicile, residence, nationality, place of incorporation and place of business of parties
    
  • 
    the place where the relationship, if any, of the parties is centered
    
• 
  Governmental interest analysis also used to seek most significant relationship.
  

1. Lauritzen v. Larsen (1953) (US)

1. 
   Place of the wrongful act, or the traditional lex loci delicti commissi doctrine
   
2. 
   Law of the flag 'which must prevail unless some heavy counterweight appears."
   
3. 
   The allegiance of domicile of the injured person
   
4. 
   The allegiance of the defendant ship-owner
   
5. 
   The place of the contract (not substantial if suit is in tort)
   
6. 
   Inaccessibility of the foreign forum
   
7. 
   Law of the forum.
   

2. Romero v. International Terminal Operating Co (1959)

3. Hellenic Lines v. Rhoditis (1970)

Most significant relationship merged with lex loci delicti is the most prevailing US tort rule. In other words, in the US, the most significant relationship test goes one step further and is used to discover the appropriate state or national interest under the interest analysis theory. Lauritzen also refers to “national interest”, which is reflected well in Restatement Second. Relevant policies of the forum of interested states are factors taken into consideration.

• 
  Under interest analysis the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the ‘most significant relationship’ to the occurrence and the parties – see Miller v White (1997) – Vermont law held to apply to accident between Vermont plaintiff and Vermont defendant in Vermont cars occurring in Quebec.
  
• 
  The ‘most significant relationship’ test can also be conceptualized in terms of ‘interest or impairment analysis.’ Which policy would be most impaired by the non-application of its rules in the case?
  
• 
  Empirical evidence suggests that the difference between the US rule and the lex loci delicti rule may not be great. Most choice of law disputes determined by an interest analysis are resolved through the application of the law of the place in which the tort was committed (i.e., the place where the tort was committed is generally deemed to have the greatest interest in having its law applied). This is not, of course, a concrete position.
  
  • 
    Some US courts have been slower that others to adopt the most significant relationship and have instead used lex loci delicti. There has also been an influence of the law of the flag where a trot affects only the internal economy or discipline of the vessel.
    
• 
  A better rule may be the closest and most real connection…
  
• 
  Refinements
  
  • 
    Leflar – 5 choice influencing considerations, an approach known as the better rule of law
    
  • 
    Weintraub – application of the law that most favored the plaintiff, which he has since limited…for products liability, advises application of the law of the plaintiff’s habitual residence subject to two basic exceptions: 1) that the law must have sufficient contacts with the defendant to make it application to him reasonable, and 2) if the defendant’s conduct is especially blameworthy, application of another law is permitted where it is desirable to punish or deter such conduct…
    
  • 
    Baxter – comparative impairment analysis to apply the law which least impairs the other states policies
    
  • 
    More recently, a more result oriented philosophy had arisen in tort conflicts, especially with respect to mass torts.
    

1. Louisiana

• 
  Lex loci delicti applies to conduct of safety
  

• 
  Art. 3542 invoke comparative impairment as a general rule for delict – the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
  
• 
  Art. 3543: issues of conduct and safety subject to lex loci delicti
  
• 
  Art. 3544: loss distribution and financial protection
  
• 
  Art. 3545: products liability
  
• 
  Art. 3542: punitive damages
  
• 
  Art. 3542: escape hatch – reintroduces comparative impairment rule if it is 'clearly evident' from the 'totality of circumstnaces' that the policies of another state would be more seriously impaired if its law were not applied to the particular issue.
  

1. France

• 
  Lex loci delicti reaffirmed as rule in Banque Veuve Morin-Pons (1983), Cour de Cassation (unless there is an international convention to the contrary)
  
• 
  In the event of choice between law of place where the delictual act was done and the law of place where damages from the act resulted (lex loci damni), the law of place of damages will serve as lex loci delicti subject to public order (if lex loci delicti violates French public order it will not govern)
  
• 
  French have little interest in applying most significant relationship. Tetley - perhaps don't want to give up predictability in resolving conflicts.
  

• 
  EEC Draft Tort Provisions 1972 – lex loci delicti in absence of closer connection with another country – not approved in the end, though.
  

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