McGILL LAW JOURNAL
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TREMBLAY v. BERNIER
CIVIL LAw –
STARE DECISIS –
EFFECT IN QUEBEC COURTS OF
PRIVY COUNCIL DECISIONS
A recent unreported decision’ by Mr. Justice Edge of the Superior Court
at Quebec City is contrary to the rule of law laid down by the Judicial Com-
mittee of the Privy Council in Despatie v. Tremblay,2 and is thus a timely
example of the problem of Stare Decisis in the Civil Law of the Province of
Quebec.
In Despatie v. Tremblay the consorts were cousins in the fourth degree
(counted in the ecclesiastical manner 3). Their Lordships denied the request
for an annulment on the grounds that Art. 1274 of the Quebec Civil Code has
no bearing upon the inherent incapacity of any person to contract a valid
marriage. They held that the impediments to marriage referred to in this
article only bind the conscience of the person involved. The only relationships
which bar marriage, as far as the Civil Law Courts are concerned, are those
expressly mentioned in Articles 124, 125, and 126 of the Quebec Civil Code.5
The facts in the present case, almost identical with those in Despatie v.
Tremblay, were as follows: the relationship of the parties was that of cousins
in the third degree, also counted in the abovementioned manner. Unaware of
their relationship at the time, the parties were married in 1936. Both were at
that time, and still profess to be, of the Roman Catholic Faith. Two children
were born of the marriage. In 1946 the consorts learned of their relationship,
one which bars marriage under Canon Law, unless a dispensation is obtained
from the Church authorities, which had not been done in this case. In 1952,
Dame Tremblay applied to the competent Ecclesiastical Tribunal and was
granted a decree of annulment. On the strength of this ecclesiastical decree,
the plaintiff demanded and was granted an annulment by the Superior Court.
Justice Edge stated in giving his decision that Article 127 of the Quebec Civil
Code gave full force in Civil Law to all the religious impediments to marriage
contemplated by that article.6 With all due respect to the learned judge, it is
the opinion of the writer that this is in direct contradiction to the ratio de-
‘Tremblay v. Bernier, Quebec Superior Court, 75-912, March 26, 1955.
2[1921] 1 A.C. 702.
3 Reckoned from each party by generations up to the common ancestor. Thus, two
cousins who have a common great-grandfather or great-grandmother are cousins in the
third degree.
AArt. 127 –
“The other impediments recognized according to the different religious
persuasions, as resulting from relationship or affinity or other causes, remain subject to
the rules hitherto followed in the different churches and religious communities.”
5According to these articles, marriage is allowed even between cousins in the second
degree (counted in the same manner as in Footnote 3).
6Italics are the author’s.
No. 1]
CASE AND COMMENT
cidendi in Despatie v. Tremblay. Let us proceed to examine the effects of this
conclusion in reference to the question of Stare Decisis in Quebec Civil Law.
The Civil Law of this Province is a unique integration of the French Civil
Law and the English Common Law heritages. We might, with some profit,
examine the operation of Stare Decisis in the United Kingdom and in France
to see if some light can be shed on the problem in Quebec.
What is Stare Decisis? It is a legal doctrine whereby: 1) each court is bound
by the decisions of all courts above it in the hierarchical court structure, and
2) courts of co-ordinate jurisdiction bind each other. In the United Kingdom
the doctrine of Stare Decisis is accepted in its strictest form. One single case
of a court imperatively binds all lower courts. The Court of Appeal, the
Divisional Court, and the House of ‘Lords, the highest court of the land, are
each bound by their own previous decisions. This is mainly as a result of the
need for certainty amid the vast number of cases. Every legal system must
strike a balance between fixity and discretion; fixity, so that the citizen may
with reasonable certainty know his rights and liabilities; discretion, so that the
legal system does not stagnate, but can provide individual justice and develop
with constantly changing social and economic conditions.
In France, court decisions are, in strict theory, not a formal source of law.
Yet, soon after the promulgation of the Code Napoleon, cases were being used
by lawyers and authors to explain the Code. By 1875, there was developed a
system of reported cases which were in general use by the legal profession.
However, there is no acceptance of the “single binding case”, even insofar as
the Cour de Cassation (France’s highest court) is concerned. However, the
lower courts will accept a consistent line of decisions of the Cour de Cassa-
tion: “une jurisprudence constante”.
In Quebec, a balance has been struck between these two systems. There is a
dualism both in technique and in theory. The Quebec Act of 1774 provided
that: ” …
in all matters of controversy relative to Property and Civil Rights,
Resort shall be had to the Laws of Canada, as a rule for the decision of the
same”. Thus, the private law of Quebec is a Civil Law system. Nevertheless,
the court structure, the method of trial, and the method of judgement writing
are in the English tradition. In theory, each Judge has the responsibility to
interpret the Code himself for every case. However, in practice, Quebec
Courts almost invariably follow the decisions of higher courts. There are many
decisions which support the view that decisions of the Supreme Court of
Canada and of the Judicial Committee of the Privy Council, in cases which
were appealed from Quebec Courts, are binding on Quebec Courts. 7 P. B.
Mignault has written: “I think it is now granted that the decisions of the
Privy Council and of the Supreme Court of Canada are binding in the
province of Quebec. When the construction or interpretation of an article of
7C.P.R. v. Roy [1902] A.C. 220: Daoust, Lalonde & Cie, Ltie. v. Ferland & the New
York Life Insurance Co. [1932] S.C.R. at p. 351, per Anglin C.J.C.
McGILL LAW JOURNAL
(Vol. 2
the Code emanates from a court of high or supreme judicial rank, it is gener-
I think I must put it even stronger and say that it should
ally considered –
as binding on all lower courts.”8 Professor W. Fried-
always be considered –
. Stare
mann put his opinion even more categorically when he wrote:
Decisis is accepted in all its vigour in Quebec.” 9
.
We can thus safely conclude that before appeals to the Privy Council in
Civil matters were abolished in 1949, it was universally accepted that the
Privy Council bound Quebec courts. Now that these appeals have been
abolished, what is the situation? Should the Quebec Courts still consider
themselves bound by all the decisions of the Privy Council applying to this
province?
It is the opinion of the writer that it would not be a sound view to maintain
that Canadian Courts consider themselves bound by the past decisions of the
Privy Council. The Judicial Committee, unlike the House of Lords, acknow-
ledged its power to overrule its own previous decisions. 10 It could thus develop
the Civil Law of Quebec to suit changing conditions in the province. A large
part of the Private Law of this province has been formulated and built up by
the Privy Council. If one admits that these decisions remain binding, there
would consequently be no court able to alter or overrule them. They would
remain ad infinitum, with only legislative action capable of altering or over-
ruling them. This would obviously not be conducive to the proper develop-
ment of Quebec Civil Law.
Having reached the point in our analysis where we conclude that Canadian
Courts should no longer be bound by Privy Council decisions, it does not
necessarily follow that the Quebec Courts should be the ones to be able to
reverse them. If, for example, the Superior Court Judges feel they have the
right to reverse Privy Council decisions, what utter confusion would result
in Quebec Law, especially since no Superior Court Judge considers himself
bound by any other Superior Court Judge..” No person would know his rights
or liabilities unless he knew before what Judge his case would come, and even
then he could only guess what view that Judge would take of Privy Council
decisions in point. This would result in the undermining of the confidence of
the public in the law and the administration of justice. In point of fact, how
should a Quebec lawyer advise a client at this moment about the meaning of
Article 127, in view of the decision of Justice Edge in Tremblay v. Bernier?
The writer therefore suggests that, by all means, Canadian Courts be not
bound by past Privy Council decisions. However, since a strong central
tribunal would lead to a more consistent development of the law, the only
Canadian Court capable of overruling the decisions in question should be the
8(1925), 3 C.B.R. 1.
9(1953), 31 C.B.R. 723.
10 Tooth v. Power [1891] A.C. at p. 292.
1″Mignault, (1925), 3 C.B.R. at p. 18.
No. 1]
CASE AND COMMENT
53
Supreme Court of Canada. The Quebec Courts should consider themselves
bound by Privy Council decisions, unless and until the Supreme Court of
Canada alters or overrules any particular decision. Since the Supreme Court
claims that its decisions are binding on all Canadian Courts, which is generally
admitted,1 2 and since the Supreme Court considers itself formally bound by its
own decisions save in very exceptional circumstances, 13 this would maintain
the necessary reasonable predictability in Quebec Civil Law, with the Supreme
Court performing the role formerly filled by the judicial Committee of the
Privy Council. The Civil Law of this province would be devoid of this neces-
sary quality of predictability if it were admitted in principle that Quebec Courts
can overrule Privy Council decisions, as was done by Justice Edge in Tremblay
v. Bernier.
BENJAMIN J. G1REENBERe*
12Laskin, (1952), 30 C.B.R. 1038; Mignault, (1925), 3 C.B.R. at pp. 12 and 15. See
also cases listed in Footnote 7.
13Stuart v. Bank of Montreal (1909), 41 S.C.R. 516, per Duff and Anglin jj.
*Second Year Student.
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LAMOTHE v. PLASSE
CIVIL LAW – DAMAGES –
1053 C.C. – AssuMPTON OF RIsK – VOLENTI
NoN FIT INJURIA – CoMMoN FAULT – DRIVING WHILE INTOXICATED
This decision affords an opportunity to examine the applicability of the
common law plea of volenti non fit injuria in the civil law of responsibility.
In the common law, the defence of volenti non fit injuria is based upon the
theory that a person who voluntarily accepts a risk cannot thereafter justly
complain of the consequences because his voluntary assumption of the risk
relieves the defendant of any legal duty of conduct.’ In this decision, Mr.
Justice Pr6vost of the Superior Court had to determine whether the voluntary
acceptance of a risk in Quebec law operates as it does in the common law to
exempt the defendant from the duty of care which he would otherwise have
owed.
The case concerns an action by the plaintiff, Lamothe, to recover damages
for an injury which he sustained as a passenger in a vehicle driven by the
defendant, Plass6. The plaintiff and the defendant were fellow workers on
a construction project. The evidence discloses that on the afternoon of July
1, 1950, the plaintiff had asked the defendant for a drive in the latter’s truck.
Throughout that morning and afternoon, Lamothe and Plasse’ had been
drinking and by the afternoon the defendant had consumed a considerable
quantity of liquor. Although the plaintiff admitted drinking three bottles of
beer, no evidence was offered to show that the plaintiff was unable to realize
the risk he was taking by travelling with a driver whose ability to drive safely
was affected by the intoxicant which he had consumed. The defendant proceeded
at a dangerous speed and ridiculed his passenger’s frequent requests to slow
down. At the moment of the accident, the defendant was travelling about 50
m.p.h. on a dangerous stretch of gravel road which had just been covered by
a layer of pebbles in preparation for resurfacing. The defendant’s imprudent
speed on such a surface, coupled with his impaired reflexes as a result of his
intoxication, caused him to lose control of the vehicle. The truck skidded and
finally swerved into a deep ditch on the left hand side of the road. As a
consequence of the accident, the plaintiff had to have his right hand amputated.
From the evidence it was quite clear to the Court that the accident was
caused by a fault attributable to the defendant. The latter argued that the plea
volenti non fit injuria applied so that the acceptance of the risk by the plaintiff
entirely absolved him from any responsibility. To support this argument, the
defendant relied on the case of Dandurand v. Hdritiers Desjardins et all
where Judge Chase-Casgrain held:
1Prosser on Tarts, p. 377.
2(1938), 44 R. de J. 76.
.11 It
IV L.
v
Iq
7
ven
….
Vr IV. MV 1
I I
55
.
Une personne qui accompagne un chauffeur d’automobile en 6tat d’ivresse, et qui en
subit un accident, ne peut ensuite riclamer, parce qu’eIIe, en connaissance de cause,
assume le risque qu’il y avait a se faire conduire par une personne en itat d’ivresse.
While admitting that there is no absolute decision on this point in the
Province of Quebec, Judge Chase-Casgrain nevertheless based his decision
on the four following cases: Mackenzie v. Meyers,3 W’hitfield v. General
Accident Assurance Company,4 Kaugh v. Adkins,5 and Delaney v. City of
Toronto6
Mr. Justice Pr~vost took objection to the reasoning of judge Chase- Cas-
grain in the Dandurand case for the following reasons: (1) the comments con-
cerning the effect of acceptance of risk made by Galipeault and Bernier JJ.
of the Court of Queen’s Bench in the Mackenzie and Whitfield cases
respectively (and on which Judge Chase-Casgrain relies) are merely obiter;
(2) the cases of Kaugh and Delaney are common law decisions and, without
legal justification, are not authoritative precedents for Quebec courts; and
(3)
Judge Chase-Casgrain does not give any convincing reasons for his
contention that the acceptance of risk by the victim prevents the latter from
claiming and constitutes a fin de non recevoir.
Having thus dismissed the Dandurand case as a binding precedent, the
Court then consulted a leading civil law authority7 on the effect of acceptance
of risk on civil responsibility. This revealed that in similar circumstances in
French jurisprudence, there is no question of the total exoneration of the
defendant since the resulting damage, loss or injury is considered to be caused
by the common fault of both plaintiff and defendant. After citing a decision8
of the “tribunal correctionel de Nice” on this precise point, Judge Privost
allowed the victim a partial indemnity of 50% of the proven damages on the
ground that both plaintiff and defendant had each committed a fault and thus
contributed to the resulting injury: the defendant by driving his vehicle
carelessly and negligently in an intoxicated condition, and the victim by
travelling with a driver whom he knew to be intoxicated and incapable of
driving safely at the time. But in coming to this decision, it was necessary for
the Superior Court to recognize and to answer three questions: (1) Does
the acceptance of risk constitute a stipulation or agreement of non-liability
exonerating the author of the delict of the damage suffered by the victim?
(2) Does the consent of the victim constitute such a serious fault as to remove
or entirely absorb the fault of the defendant? (3) Does the acceptance of risk
by the victim constitute a fin de non recevoir?
8(1934), 57 K. B. 357.
4(1931), 50 K. B. 310.
‘[1933] 0. W. N. 709.
6(1922), 64 D. L. R. 122.
7H. & L. Mazeaud, Traiti Thiorique et Pratique de la Responsabiliti Civile, Dilictuelle
8Nice, 21 Nov. 1938, D. H. 1939. 62.
et Contractuelle, 4th ed. Vol II, Nos. 1486 ff.
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FIRST QUESTION:
In relation to the first question the Court made reference to the remarks
of the Mazeaud brothers in their “Traitg th6orique et pratique de la respon-
sabilit civile, ddlictuelle et contractuelle”, and on this basis held:
Pour notre part nous pensons avec les frZres Mazeaud que ce serait aller trop loin,
surtout dans un cas analogue A celui qui nous est soumis, que de presumer que le
consentement de la victime comporte une convention de non-responsabilit6: telle con-
vention, exon&rant le d~fendeur de sa faute lourde, serait d’ailleurs nulle.0
There are, in reality, two separate issues involved in the first question:
(a) does the acceptance of a risk by the victim constitute a tacit agreement
excluding liability; and (b) is such an agreement or stipulation legally valid.10
As regards the first issue there are wide differences of opinion.” In the writer’s
opinion, it is difficult to see how the simple acceptance of a risk can amount
to an agreement excluding liability since the acceptance of a risk is in effect
only a unilateral act. An agreement, whether it is express or tacit, is always
a bilateral act. But even if we assume that the acceptance of a risk by the
victim, or his consent to drive with the defendant whom he knows to be
intoxicated, is equivalent to an agreement excluding liability, we are still
faced with the second and more complex problem of determining whether
such agreements are legally valid in delictual matters.1 2 This issue has given
rise to a serious and somewhat irreconcilable controversy both amongst
writers and in the jurisprudence.1″ In the writer’s opinion, the better view is
9[1953] S. C. 341 at p. 343.
3OQuery (b) arises, of course, only if (a) is answered in the affirmative.
nFor the view that the voluntary acceptance of a risk by a victim is equivalent to an
agreement excluding liability, see M. P. Esmein, De L’Influencc de l’acccptalion des
Risques par la Victite eventitele d’im Accident, Rev. Trim. de Droit Civil, Vol. 37,
1939, p. 387 at p. 396. For the opposite view, see H. & L. Mazeaud, op. cit., Vol. II, p.
411-412.
12We are here concerned with agreements excluding liability for personal acts only.
Further difficulties arise when considering these agreements in the case of vicarious
liability. Refer to J. Perrault, Des Stipulations de Non-Responsabilitd, These pour doc-
torat en droit, Universit6 de Montr~al, 1937, Ch. 9, pp. 124-128.
‘ 3For the view that agreements excluding responsibility in delictual matters should be
declared valid, see Esmein, op. cit., p. 387 ff. For jurisprudence on this view see Regina
v. Grenier (1899), 30 S.C.R. 42 where it was held that a workman may contract with
his employer so as to exonerate the latter from liability for negligence for which the
former would otherwise be entitled to recover damages. Before this decision, the Quebec
Court of Appeal had always declared agreements excluding responsibility to be null. In
Miller v. Grand Trunk Railway Co., (1903), 34 S.C.R. 60, Judge Girouard (dissenting)
stated that in the Grenier case, the Supreme Court had not passed judgment on the
question of responsibility for personal acts under 1053 C.C. For an ambiguous Quebec
decision, see Gagni v. Godbout [1946] S.C. 16. Also cf. L. Baudouin, Le Droit Civil de
la Province de Quibec, pp. 869 to 878; 3. Perrault, op. cit., pp. 119 to 128; H. & L.
Mazeaud, op. cit., Vol. III, No. 2580. For the view that the victim of an accident cannot
renounce beforehand his right to claim an indemnity for damages resulting from a
delictual fault, refer to French jurisprudence which generally declares null all clauses
CASE AND COMMENT
that a person cannot make a valid agreement to exonerate himself beforehand
of his civil responsibility in the case of his intentional fault or in the case of
his faute lourde or gross negligence. 14 In the case before us, the evidence
clearly indicates that the fault of the defendant is of a nature which makes it
faute lourde or gross negligence, so that even if it were admitted that the
acceptance of risk amounted to a tacit agreement excluding liability, that
agreement would have no legal effect and would, therefore, not exonerate the
defendant from compensating the victim for his injuries.
SECOND QUESTION:
The second question again involves two separate issues: firstly, whether the
consent of the victim to ride with the defendant quashes or conceals what
would otherwise be a fault of the defendant, and secondly, whether the con-
sent of the victim to travel with a drunken driver constitutes so serious a fault
that it entirely absorbs the fault of the defendant. As regards the first issue,
the Court adopted the view that:
. le consentement de la victime ne fait pas disparaitre le caract~re fautif que
. .
pouvait rev~tir le fait du d~fendeur,’ 5
and held that in delictual matters the fault of the defendant must always be
abstracted and considered separately. With regard to the second issue, a
subtle distinction’ 8 was made between: (a) the intentional fault of the victim:
the case of a person who wishes to commit suicide and decides to throw
himself under the wheels of a speeding vehicle; (b)
the simple knowledge
on the victim’s part of the possible realization of injury: the case of a
pedestrian who crosses a street at an intersection; and (c)
the acceptance
of risk by the victim where he consents to the danger of injury without wishing
to suffer it: the case of a person who, as in the case before the Court, accepts
a drive from a person whom he knows to be intoxicated and incapable of
driving safely.
In case (a) the victim wishes to be injured and he merely uses the defend-
ant’s imprudence as he would use a pistol or a lethal dose of poison for the
purpose of destroying himself. Only in this case does the consent of the victim
to suffer damage (as opposed to his consent to merely accept the risk) seem
excluding responsibility in delictual matters. Cf. Civ., 4 janv., 1933, D.H. 1913.113; Civ.,
21 mars 1933, D.H. 1933.301 and other cases cited by Mazeaud, op. cit., Vol. III, No.
2570 footnote (3 bis). For an ambiguous decision refer to D. 1932.1.1. Also cf. J. Per-
rault, op. cit., pp. 124 ff. Notice that Mazeauds’ views are inconsistent with the general
tendency of the French jurisprudence. It seems that the only way to disentangle the
different opinions on the validity of agreements excluding liability is not to extend the
holdings of these decisions beyond the facts submitted to the Courts.
14This is the view expounded by H. & L. Mazeaud, op. cit., Vol. III, No. 2580; L.
Baudouin, op. cit., p. 877; J. Perrault, op. cit., p. 128.
15H. & L. Mazeaud, op. cit., Vol. II, p. 416, No. 1493.
‘0 lbid, No. 1486 ff.
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to absorb entirely the fault of the defendant.1 7 This statement, however, is not
legally accurate since it assumes that responsibility is based on the degree1 8
of fault rather than on fault alone. Although the defendant, in this case, had
committed a fault by driving imprudently, the victim or his heirs could not
succeed in an action in damages, not because the intentional fault of the victim
absorbs the fault of the defendant, but because the victim’s intentional fault
becomes the actual cause of his injuries :19 there is no causal connection (lien
de causalit6) between the driver’s imprudence and the injury of the victim
since the former’s imprudence is used as a means by the latter in order to
achieve self-destruction.20
In case (b), the pedestrian who is injured by an imprudent driver at an
intersection would have a right of action for full compensation for his in-
juries.
As to the victim’s remedy in case (c), the Mazeaud brothers suggest the
following solution which Judge Pr6vost uses as a basis for his decision:
Ne doit-on pas, adoptant un syst~me mixte, ne lui [victime] allouer qu’une r para-
tion partielle. 21
TBIRD QuEsTiox:
On the basis of his discussion of the two previous questions, Judge Pr6vost
refused to accept the defendant’s argument and Judge Chase-Casgrain’s
decision in the Dandurand case that the consent of the victim to drive with
the defendant constituted a fin de non recevoir so as to exclude him from com-
pensation for his injury.22
ANALYSIS
There is a cause of action at common law wherever there is negligence
causing damage in circumstances in which a duty is owed to the plaintiff to
take care.23 It seems clear that the English law recognizes no general right
not to be damaged by another. 24 The law of torts consists in a number of
specific rules2 5 prohibiting certain kinds of harmful activity although the
‘7Ibid, No. 1480.
18Ibid, No. 1482.
19Ibid, No. 1483.
2Obid.
21Ibid, No. 1487. Quoted by Judge Pr~vost at p. 344.
22Compare with R. Savatier, Traitg de la Responsabilitg Civile en Droit Franfais,
1st ed., Vol. II, No. 658; also compare Savatier’s views in his first edition to his 2nd ed.,
Vol. II, Nos. 656 to 666.
2 3Sahnond on Torts, l1th ed., p. 19.
2 4Ibid. The text adds that the English law recognized no general right not to be dam-
aged by another even if that other acts in bad faith and intends to cause the damage.
25Ibid, p. 17: “Just as the criminal law consists of a body of rules establishing specific
offences, so, the law of torts consists of a body of rules establishing specific injuries.
Neither in the one case nor in the other is there any general principle of liability.” Also
refer to Williams, The Foundations of Tortious Liability, (1939), 7 Camb L. J. 111;
Prosser on Torts, p. 4 ff; Winfield on Tort, 6th ed., pp. 16-17.
CASE AND COMMENT
courts have complete power 26 to determine whether a duty of care is, in the
circumstances of the case, owed to the defendant by the plaintiff. In order to
succeed in an action for damages at common law, the following four requisites
have to be proved: (a) a duty, recognized by law, requiring the defendant to
conform to a certain standard of conduct; (b) a failure on the defendant’s
part to conform to this duty, or, in other words, a breach of duty to take care
(this breach of duty is usually termed negligence) ; (c) actual loss, damage
or injury to the plaintiff; and (d) a reasonably close causal connection be-
tween the negligence and the resulting damage, loss or injury.27
It is clear that it is not all negligence or carelessness that is actionable at
common law, but merely that negligence which causes damage in circum-
stances in which there is a duty owed to the plaintiff to take care.2 8 The plea
of volenti is based on the theory that voluntary subjection to a known risk
negatives the existence of a duty on the defendant’s part by the breach of
which he would otherwise be a wrongdoer.2 9 Bohlen summarizes this idea as
follows:
The maxim ‘volenti non fit injuria’ is a terse expression of the individualistic tend-
ency of the common law, which, proceeding from the people and asserting their
liberties, naturally regards the freedom of individual action as the keystone of the
whole structure. Each individual is left free to work out his own destinies, he must
not be interfered with from without, but in the absence of such interference he is held
competent to protect himself. While therefore protecting him from external violence,
from imposition and from coercion, the common law does not assume to protect him
from the effects of his own personality and from the consequences of his voluntary
actions or of his careless misconduct.30
As opposed to the common law, responsibility for offences and quasi-
offences in the civil law does not rest on a number of specific rules prohibiting
certain kinds of harmful activity –
at most civil responsibility rests on a
fundamental principle that it is wrongful to cause harm to other persons in
the absence of some specific justification or excuse.3 1 Under the Civil Code,
responsibility is based upon fault. In order to succeed in an action under civil
law, the following three requisites have to be proved: (a) fault, which is im-
putable to the defendant; (b) damage, loss or injury to the plaintiff; and
(c) a causal connection between the fault and the resulting damage, loss or
injury.
32
26Ibid, p. 19: “When relationships come before the Courts which have not previously
been the subject of judicial decision the court is unfettered in its power to grant or refuse
a remedy for negligence.” Also refer to p. 20: “The categories of negligence are never
dosed… as the law develops we are moving in the direction of a general principle of
liability.” Compare to Winfield on Tort, p. 17.
27Prosser on Torts, p. 177.
28Winfield on Tort, p. 478; Prosser on Torts, p. 395.
20Winfield on Tort, p. 26 ff; Prosser on Torts, p. 377; Salnond on Torts, p. 38 ff.
3oF. H. Bohlen, Voluntary Assumption of Risk, (1906), 20 H.L.R. 14.
31G. V. V. Nicholls, The Responsibility for Offences and Quasi-Offences under the
Law of Quebec, passim; H. & L. Mazeaud, op. cit., passim; Savatier, op. cit., passim.
32Nicholls, op. cit., ch. 2.
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It immediately becomes apparent that the common law counterpart of fault
is a breach of duty to take care, or negligence. Since the defence of volenti at
common law is based upon the theory that the voluntary acceptance of a risk
by the plaintiff relieves the defendant of any legal duty of conduct, it becomes
essential to determine whether the notion of fault contains any specific
concept of duty (as is found in the notion of negligence) which may be relieved
by the plaintiff’s voluntary acceptance of risk. In other words, is the common
law notion of negligence identical to the civil law notion of fault so that the
voluntary acceptance of risk may be said to operate in the same way in both
systems, namely, to relieve the defendant of his duty of care to the plaintiff.
Is the notion of fault equivalent to the notion of negligence? Fault consists
of a failure to act as a reasonable man in the circumstances and is made up
of a subjective and an objective element. 33 The subjective element presupposes
the subjective capacity to foresee the damage that will result and to avoid it.
In Quebec, then, persons incapable of discerning right from wrong are
incapable of fault and are not responsible for the damage they may cause to
another. Thus, insane persons, idiots, persons who are affected by the more
serious types of feeble-mindedness, and children who are so young as to
be incapable of appreciating the nature of their behaviour would escape
liability.3 4 The notion of negligence, on the other hand, neither contains nor
implies such a subjective aspect. This is readily illustrated by the fact that
under the common law, lunatics, insane persons and infants are held liable
for their torts.35 Thus under the English law, an insane person has been held
liable in tort action for assault and battery, false imprisonment, destruction
of property, conversion, suing out an injunction, and injuries caused by the
defective condition of his property. 6
The objective element in fault is a certain behaviour which, when judged
by objective standards, is legally reprehensible. “Just as a person to be
responsible under civil law, must be subjectively to blame, so his behaviour
judged by objective standards, must be legally reprehensible.”8 7 Now, what
are these objective standards by which a person’s behaviour must be judged
to determine whether he is responsible for his injurious acts. Nicholls tells
us that this objective standard is that of the care and skill expected of a
reasonably careful and prudent man in the circumstances.8 8 So long as a
person acts with the care and skill of a reasonably careful and prudent man
in the circumstances of the case, he will not be responsible for the resulting
damage. An examination of the common law notion of negligence quickly
33Ibid, p. 17.
4Ibid, p. 18.
35Sahnond on Torts, pp. 74-75.
36Specific references to common law jurisprudence may be found in Prosser of Torts,
p. 1089.
3 7Nicholls, op. cit., pp. 19-20.
38Ibid, pp. 20-21.
No. 1]
CASE AND COMMENT
discloses that approximately the same objective standard, namely, that of a
reasonable man of ordinary prudence, 9 is used to determine when the breach
of a legal duty has occurred. The similarity between negligence and fault,
then, is found in the application of approximately the same objective standard
in both common and civil law systems in order to determine when the breach
of a legal duty has occurred (common law) or when the defendant’s behaviour
has failed to measure up to the objective standard so as to fulfill the objective
element of fault (civil law). In the writer’s opinion, it is precisely this
similarity of technique which has led some writers4 to come to the conclusion
that the “common law notion of ‘negligence’ and the civil law notion of ‘fault’
are thus identical”, 41 and on this basis to assume that the plea of volenti must,
therefore, produce the same effect 4 2 on responsibility in the civil law as it
does in the common law.
Before a breach of duty can be said to have occurred at common law, it
must be first determined whether or not there was a duty owed to the
plaintiff to take care.43 The plaintiff cannot win his action unless he first of
all shows facts “from which the court can deduce a legal obligation on the
part of the defendant towards the plaintiff to take care”. 44 “There must be a
duty on the defendant not to cause damage of a specified kind to the plaintiff
by careless conduct. ’45 The decision as to whether a duty exists is always a
question of law for the judges. 46 In the civil law, on the other hand, we are not
primarily concerned with establishing the existence of a duty before we can
determine whether or not a fault has been committed. The Court simply tries
to discern from the evidence offered whether the act, conduct, or omission
of the defendant failed to measure up to the care expected of a reasonable
man in the circumstances. Therefore, since fault under the civil law does
not depend 47 on the existence of specific duties, it is submitted that there can
SOProsser on Torts, p. 224.
40e.g. W. S. Tyndale, Civil Responsibility for Damage, B.C.L. Thesis, McGill Uni-
versity, 1948.
Nadeau, p. 476.
41Ibid, p. 45.
42Note especially Trudel series, Traitg de Droit Civil de Quebec, Vol. VIII, by A.
43Winfield on Torts, p. 478.
44Ibid, p. 479.
Orlbid.
46Ibid.
47Although the ability of the plaintiff to establish “fault” at civil law does not depend
on his previous ability to show facts “from which the court can deduce a legal obligation
on the part of the plaintiff towards the plaintiff to take care”, this does not mean that
there is no relationship between “fault” and “obligation”. “A person cannot be at fault
if he was not bound to anything before the commission of the act in question.” Refer to
Planiol, Traitg de Droit Civil, Vol. II Nos. 863 if: “La faute est un manquement i tine
obligation pr6-existante, dont la loi ordonne la riparation quand il a caus6 un dommage 5
autrui.” The distinction to be made is the following: At common law, the plaintiff has to
establish the duty owed to him before he can proceed to prove “negligence”. (Refer to
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[Vol. 2
be no question of acceptance of risk on the part of the plaintiff which will
have the effect of relieving the defendant of the duty of care which he would
otherwise have owed:
Nous avons le devoir de nous montrer prudents m~me & l’6gard de ceux qui nous
sollicitent de ne pas l’tre4 8
Assumption of risk and volenti non fit injuria are terms which have been
surrounded with great confusion in the civil law texts. Beullac, for instance,
discusses the plea of volenti under the heading: “Faute de la victime”. He
states:
Lorsque la faute de la victime a 6t6 la cause unique du dommage, Faction en res-
ponsabilit6 dolt &re renvoy~e. Cette notion du droit trouve son expression dans ]a
maxime ‘volenti non fit injuria. 4 9
Nicholls has the following to say:
It might as well be said immediately, however, that if the plea [of volenti] is to
succeed in Quebec it will succeed not because the plaintiff consented to undergo the
risk of damage, but because in the circumstances of the particular case that consent
amounted to a fault that caused or contributed to the damage.5 0
Mignault discusses volenti in three lines in his chapter entitled: “Faute com-
mune”, but he does not venture to explain what the term means. He states
thus:
Si c’est la faute de la victime [qui a caus6 le dommage], il est clair qu’il n’y a point
de responsabilitE civile: volenti non fit injuria.51
H6mard and others have a novel approach to the application of volenti:
…
on applique la maxime ‘volenti non fit injuria’ a certain dflits, tels que le vol,
qui consistent dans un dommage aux biens, mais non A d’autres infractions qui, tels
le meurtre, les coups et blessures, consistent dans un dommage i la personne phy-
sique.52
juliot de la Morandi~re, on the other hand, denies the application of the whole
theory of acceptation des risques in the civil law:
Une autre consequence est que la convention d’irresponsabilit6 ne peut 6tre tacitement
suppos~e; ainsi on ne peut admettre qu’une personne accepte par avance de sup-
porter tel ou tel risque. La pr~tendue acceptation des risques laisse la possibilit6 A la
victime d’obtenir des dommages-intr&ts en prouvant la faute de l’auteur de l’ac-
cident.53
footnote 44). At civil law, the law itself establishes a general duty on evcryone not to
cause damage to others; this general duty is imposed quite apart from the activities of the
parties (compare with footnote 30) ; it cannot be altered by the unilateral act of one of
the parties, and is always presumed to exist so that the plaintiff does not have to
establish the duty owed to him before he proceeds to establish fault: “Nous avons le
devoir de nous montrer prudents m~me & l’6gard de ceux qui nous sollicitent de ne pas
l’6tre.” (see footnote 48).
48H. & L. Mazeaud, op. ci., Vol. II, No. 1492.
49p. Beullac, La Responsabiliti Civile dans le droit de la Province de Quebec, p. 609.
5ONicholls, op. cit., p. 127.
51Mignault, Le Droit Civil Canadien, Vol. V, p. 384.
52Quoted in H. & L. Mazeaud, op. cit., Vol. II, No. 1488 and footnote.
5Sj. de La Morandi~re, Pricis de Droit Civil, Vol. II, No. 341.
No. 1 ]
CASE AND COMMENT
The Mazeaud brothers feel that the basis on which the theory of acceptation
des risques has been built in the civil law is unsound and rather questionable:
Certes la simple connaissance de la responsabilit6 d’un dommage ne peut influer sur
la responsabilit6 d’un d~fendeur ….
On parle quelquefois ici de risque accept6,
mais tr~s improprement: la victime n’a rien accept6 du tout; son consentement fait
d~faut.54
Later on they say:
L’examen des diff6rents cas dans lesquels le problme de l’acceptation des risques se
pose en pratique montre qu’il est inexact de vouloir construire une th~orie g~nrale
du risque accept& Outre que, en batissant cette th~se. on confond souvent ‘accepta-
tion’ et ‘connaissance’ des risques, il n’est pas possible, mme au cas d’acceptation
v~ritable, de faire jouer la maxime ‘volenti non fit injuria. 55
Savatier’s treatment of volenti is particularly confusing. After stating that the
theory of volenti lacks any precise meaning or definition and is often con-
fused with the fault of the victim or his consent to accept the risk, he states:
Mais la maxime ‘volenti non fit injuria’, malgr6 1’existence de la faute de l’autre
partie a cette convention, parait emp8cher l’action en responsabilit6 de la victime,
alors du moins que son consentement a 6t6 absolument libre et que le dommage con-
senti n’est pas contraire i l’int~grit6 de la personne humaine. 56
Nadeau tells us that the plea of volenti exists in our law as it does in the com-
mon law but with different modalities, yet he neglects to tell us what these
modalities are:
La r~gle ‘volenti non fit injuria’ existe dans notre droit frangais de la responsabilit6,
tout comme en droit anglais, mais elle agit chez nous selon des modalit6s distinctes. 57
These excerpts are typical of the confusion and uncertainty surrounding
these terms in our jurisprudence and texts. Those texts and decisions, more-
over, which maintain the application of the plea of volenti nowhere explain
on what legal basis this plea may be said to constitute a valid defence. It is
settled that, at common law, this plea is based on the voluntary acceptance of
risk which relieves the defendant of his legal duty of conduct without which
there can be no negligence. 58 Is the plea of volenti at civil law based on the
faute commune of the plaintiff, as Nicholls, Mignault & Beullac seem to
suggest? 9 Or, it is based on the acceptance of risk? If it is based on the
acceptance of risk, does such acceptance by the plaintiff qualify the objective
standard by which the defendant’s behaviour must be judged in order to
determine whether he is responsible for his injurious acts? Or does the
acceptance of risk by itself constitute an estoppel or fin de non recevoir?60
54H. & L. Mazeaud, op. cit., Vol. IT, No. 1486.
55Ibid, No. 1500.
56Savatier, op. cit., 1st ed., No. 658. Compare with his 2nd ed. Nos. 656 to 666 where
he seems to change his opinion. See also footnote 22.
GTA. Nadeau, Trudel Series, Vol. VIII, p. 476.
5sAt common law, then, the maxim volenti cannot apply where there is “negligence”.
Refer to Sahnond on Torts, p. 40; see also Prosser on Torts, p. 377.
50Cf. footnotes 49, 50, & 51, supra.
0OCompare with Savatier, op. cit., 1st ed., Vol. II, pp. 246 ff.; 2nd ed., Vol. II, pp.
237 ff.
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[vol. 2
Since the victim, at civil law, does not have to establish the existence of any
specific duty of conduct on the part of the defendant towards the plaintiff in
order to succeed in his action,61 and since the notions of fault and negligence
are not identical, is it correct to assume that the plea of volenti produces
the same effect on responsibility in the civil law as it does in the common law?
The common law attaches precise meaning to acceptance of risk and volenti
non fit injuria. Most standard texts on torts6 2 contain a separate chapter
devoted exclusively to the plea of volenti wherein the scope and application of
this defence are strictly determined. This is to be contrasted to civil law
texts and jurisprudence wherein the term is only confusingly mentioned en
passant without any attempt being made to define the term or to delimit its
application.
Common law writers are careful to distinguish the defence of volenti from
the defence of contributory negligence.6 3 In the first case, there is no
question of any negligence on the part of the plaintiff6 4 by accepting the risk
as he may be acting quite reasonably. Where the plaintiff’s own conduct in
accepting the risk has been unreasonable in view of the forseeable danger, we
are no longer involved with assumption of risk but rather with contributory
negligence, and the plaintiff is now barred from recovery by the policy of the
common law which refuses to allow him to shift to the defendant a loss for
which his own unreasonable conduct is in part responsible.6 5 In the case of
contributory negligence there is negligence on both sides whereas in the case
of assumption of risk there is no negligence at all. If any of the definitions of
volenti given by those civil law authors who maintain that the plea is a valid
defence at civil law, are correct, then our plea of volenti becomes similar to
the plea of contributory negligence which common law authors are very
careful to distinguish. Volenti then becomes equivalent66 to faute commune
where both plaintiff and defendant are considered to be at fault and where the
damages are awarded proportionately.
Those who maintain that the plea of volenti ‘existe dans notre droit franqais
de la responsabilit6, tout comme en droit anglais’,6 7 point to its frequent
application at sports events,68 especially those events of a more dangerous
nature, such as wrestling, lacrosse, stock-car racing, football and so on, where
those in attendance are said to have accepted the risks inherent in that
61 Cf. footnotes 44, 45, 46, 47, supra.
62e.g. Prosser on Torts; Pollock on Torts; Winfield on TOrt; Salmond on Torts.
63Cf. Prosser on Torts, p. 378.
64Ibid, pp. 377-378. The common law recognizes a duty on the part of the plaintiff to
conform to the same objective standard of conduct, namely, that of a reasonable man of
ordinary prudence, for his own protection. See ibid, p. 395.
65Ibid, p. 378. This rule has been altered by statute in some common law jurisdictions.
GOCf. Nicholls’ definition, supra.
67Nadeau, op. cit., p. 476.
6 8e.g. Gervais v. Canadian Arena Co., (1936), 74 S.C. 389, and other cases cited by
Nadeau, op. cit, footnote 62 on p. 477.
N8o. 1]
CASE AND COMMENT
particular sport by the mere fact of their attendance. Not too surprisingly, a
survey of these civil law judgments which have dismissed the plaintiff’s
action on the basis of assumption of risk will reveal innumerable references
to common law precedents. Hence it is not unexpected that so much con-
fusion and disagreement exists in our law on this subject. In the writer’s
opinion, there does not appear to have been any necessity in all these cases to
make use of a common law concept in order to determine that which could
have been adequately determined on the basis of fault alone. These decisions
seem to have lost sight of the very fundamental principle on which our whole
law of responsibility is based: there is NO responsibility without FAULT!
Keeping in mind that a spectator isn’t necessarily at fault by attending a
dangerous but licit sports event, all these cases could have been decided on
the basis of fault alone: did the defendant (wrestler, hockey player, stock-car
driver, and so on) act with the care and skill of a reasonably careful and
prudent man in the circumstances:6 9
Ainsi ia personne qui assiste volontairement A un spectacle sportif n’en conserve pas
moins le droit de se pr~valoir de l’article 1382 (equivalent to 1053 C.C.) si elle est
bless~e du fait du spectacle.70
CONCLUSION:
For the reasons given for the judgment under discussion, it may well be
concluded that this decision marks a reversal and establishes a new line of
jurisprudence the effect of which may be to check permanently the assimila-
tion heretofore of the effects of the common law plea of volenti into Quebec
jurisprudence. In the presence of such confusion and disagreement regarding
the application of this plea at civil law, it is surprising that our Courts had
previously declined to adopt a view which is more in keeping with civil law
concepts. In the writer’s opinion, the common law plea of volenti, based on
the acceptance of risk, cannot be made applicable at civil law, since the basis
on which this plea rests at common law has no civil law counterpart. Further,
it is suggested that as long as serious controversy exists as regards the meaning
and use of these terms, less recourse be made to common law concepts in
order to determine that which could be adequately (and sometimes, indeed,
more equitably) determined on the basis of fault alone. It is regrettable that
Mr. Justice Pr~vost did not make use of this opportunity to examine and
60One must remember the difficulty of proving fault at sports events such as hockey,
motor races, flying meets and so on, since the dangers and perils which may reasonably
be expected to occur at such meetings, cannot, unless the conduct of the defendant is
proved to be intentional, be made attributable to fault. The reason for this, of course, is
that the objective standard of conduct changes in the circumstances. In a dangerous but
licit sports event, such as a flying meet, the dangers and perils which are inherent in the
nature of the event cannot, without great difficulty, be proved to be attributable to a fault
of the defendant. The harm would almost have to be intentional to permit the victim to
prove fault.
7oJ. de La Morandi~re, op. cit., Vol. II, p. 166.
66
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[Vol. 2
determine precisely the applicability of this plea at civil law. Yet, one cannot
help feeling that Mr. Justice Privost’s most astute and equitable decision
may have the effect of persuading Judges in the future to rely less on common
law concepts and decisions in reaching decisions which are both equitable and
in keeping with our own Civil Law concepts.
MICHAEL AWADA*
*Third Year Student.
