[Vol. 16
The Transmissibility of Damage Claims
Ronald I. Cohen*
I. Introduction.
The various heads of damages under which the courts of the
Province of Quebec have regularly awarded compensation in an ac-
tion taken by the injured party have been quite clearly established
although there has been much variation in the method of arriving
at, and the precise measurement of, the quantum; however, such
uncertainties as have attended delictual actions taken by the victim
himself are but small in comparison with the problems rife in a
delictual action taken either for the first time, or en reprise d’ins-
tance, by the heirs of the deceased. There are, on the one hand,
the difficulties created by article 1056 whose very presence in the
Code implies the existence of damages different from those which
the victim or his heirs may claim under article 1053 1 and, on the
other hand, the complications resulting from the legal principle
espoused by the common law, actio personalis moritur cum per-
sona.2
This article will deal with those damages which the victim might
successfully claim de son vivant and the problems involved in their
transmissibility in the event of his decease before the trial. Thus,
*Of the Faculty of Law, McGill University.
‘The damages awarded under art. 1056 are those “occasioned by such
death” and these are not limited to those damages which result from the
fault directly. Fault, which is both the causa causans and the causa sine
qua non of the damages claimed by the plaintiff under art. 1053, is only
the causa sine qua non of the damages claimed under art. 1056, the death
being clearly established by the Code as the causa causans. See, e.g., Smith
v. Pelletier, [1942] B.R. 664, at p. 669, per Pr6vost, J. Contra: Leblanc v. Ville
de East Angus, (1927), 33 R. de J. 530, at p. 533, per Archambault, 3.
2The principle, enshrined in the old case of Baker v. Bolton, (1808), 1
Camp. 493, 170 E.R. 1033, has, of course, been rendered obsolete in the
United Kingdom by the introduction of the Law Reform (Miscellaneous
Provisions) Act, 1934, 24 & 25 Geo. 5, c. 41, and the decision of the House
of Lords in Rose v. Ford, [1937] A.C. 826, [1937] 3 All E.R. 359.
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
the frais fungraires 3 and the frais de deuil,4 which do not apparently
have a solid doctrinal or jurisprudential basis under either article
1053 or article 1056, will not be treated since, ex hypothesi, they
cannot be transmitted; nor, generally speaking, will those other
damages which also do not form part of the succession be discussed.
On this basis, then, the heads of damages with which this arti-
cle will deal are the following: disbursements; pain, suffering and
inconvenience; total temporary incapacity; partial permanent inca-
pacity; and loss of enjoyment of life. Each of these heads will be
described more fully below, together with a determination in each
instance of the transmissibility of the right of the deceased to claim
those damages. In addition, the question of the right to damages
for the shortening of life will be dealt with in the context of the
last category, that of the loss of enjoyment of life, since the two
categories have generally been confused by the courts of the Prov-
ince of Quebec.
II. Transmissibility.
1)a) Material and Moral Damages
Before discussing each of the heads of damages independently,
it will be necessary to focus briefly on the general distinctions
which the courts have found to be crucial in the determination of
the question of transmissibility. There are two distinctions to be
made: that between material and moral damages on the one hand
and that between patrimonial and extra-patrimonial damages on
the other hand.
Nadeau gives a precise definition of material damages:
Le dommage matdriel est celui qui atteint la victime dans ses biens ou
dans sa personne physique.5
Clearly, according to this definition, material damage denotes a
depletion of the assets of the patrimony and connotes easy assessi-
bility of the quantum of the depletion: for example, the addition
3 For a discussion of the claim for frais fundraires, the reader is referred
to A. Nadeau, Traitd de droit civil, t. 8, (Montr6al, 1949), nos. 602, 605-606, pp.
516.518, 519-522; A. Perrault, Critique des arr~ts, (1944), 4 R. de B. 502, at
pp. 506-507; 0. Frenette, L’Incidence du ddcis de la victime d’un ddlit ou d’un
quasi-delit sur l’action en indemnitg, (Ottawa, 1961), nos. 145-154, pp. 106-111,
and the cases cited in these authorities.
4 For a discussion of the claim for frais de deuil, see Nadeau, op. cit.,
n. 3, nos. 603, 605-606, pp. 518, 519-522; Perrault, loc. cit., n. 3, p. 508; Frenette,
op. cit., n. 3, nos. 155-160, pp. 111-114.
5Op. cit., n. 3, no. 581, p. 502.
McGILL LAW JOURNAL
[Vol. 16
of medical, surgical and hospital bills; the cost of drugs and nursing
fees; the price of a new car or repairs to the old one to put it
back into running order; the loss of salary over the period of re-
covery and the necessary diminution of salary as a result of in-
capacity.
Moral damages, one might conclude, are those which do not
affect the victim’s assets or his physical person.
Moral damages may be said to include all compensatory damages not
affecting the body or the fortune.
At least two other Quebec authors 7 adopt the view of Rend
Savatier that moral damage is “… toute souffrance humaine qui
n’est pas causde par une perte pdcuniaire”.s Thus, included in this
category would be infringement of one’s reputation or honour,
infringement of one’s affections or sensibilities, and, most relevant
to this article, “… les souffrances physiques et morales que subit
la victime du dommage”. Although these damages, in the words
of the late L. Baudouin,”… sont moins lids h un prdjudice pdcu-
niaire”,10 they are nonetheless subject to pecuniary compensation.1
That these damages are essentially personal and not readily sus-
ceptible of calculation in no way detracts from the necessity of
awarding them as a measure of the civil responsibility of the tort-
feasor.12
b) Patrimonial and extra-patrimonial damages
The distinction between patrimonial and extra-patrimonial dam-
ages is quite clear and obviously germane to this’entire discussion,
6G.V.V. Nichols, The Responsibility for Offences and Quasi-Offences
under the Law of Quebec, (Toronto, 1938), p. 114.
7 Nadeau, op. cit., n. 3, no. 582, p. 503 and L. Baudouin, Le droit civil qud-
becois, (Montr6al, 1953), p. 832.
t. 2, no. 525, p. 101.
8 R. Savatier, TraitM de la responsabilitd civile en droit frangais, (Paris, 1939),
9 Baudouin, op. cit., n. 7, p. 833. See also Nicholls, op. cit., n. 6, p. 114;
Nadeau, op. cit., n. 3, no. 583, p. 504; and A. Mayrand, Que vaut la vie?, (1962),
22 R. du B. 1, at p. 2.
10 Baudouin, op. cit., n. 7, p. 833.
11 Owen, 3. in Ldvesque v. Malinosky, [1956] B.R. 351, at p. 360, stated that
“… all of these items are basically the same and all can be expressed in
terms of money.”
12 See, for example, in Rose v. Ford, [1937] A.C. 826, [1937] 3 All E.R.
359, the statements of Lord Wright at [1937] A.C. 848, [1937] 3 All E.R. 372,
and Lord Roche at [1937] A.C. 859, [1937] 3 All E.R. 379, and the view of
Cartwright, I., as he then was, in Driver v. Coca-Cola Ltd., [1961] S.C.R. 201,
at p. 217. Mayrand, loc. cit., n. 9, at pp. 9-10, impliedly shares this opinion.
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
since the heirs of the deceased step into his shoes with respect to
his patrimony and with respect to that alone. The patrimony is the
assemblage of the rights and obligations of the deceased which are
appreciable in money.13 Into this juridical universality enter all
those rights and obligations which are susceptible of economic
evaluation.1 4 Those rights are extra-patrimonial which have no eco-
nomic value and which are, furthermore, by their very nature, rele-
vant only to the person who possesses them.15 They include, by
way of example, the right of cohabitation of the husband, the
right to take an action in separation from bed and board and the
right to vote.
The importance of the distinctions made above is, in the opinion
of the writer, the following: whether the damages are material or
moral will be relevant in determining whether or not the right
to sue for them came into existence at all; whereas the patrimonial
or extra-patrimonial quality of the damage which has been caused
by the fault will form the basis for the decision regarding the
transmissibility of the claim.
2) The effect of instantaneous death
One must also consider the relevance (in determining whether
the right came into existence in the patrimony of the deceased at
the time of the accident) of the effect of the instantaneous death
of the victim. It is a question which, before the famous case of
Driver v. Coca-Cola Ltd.,16 only appears to have arisen once in
13Aubry et Rau, Cours de droit civil frangais, 3e dd., t. 2, (Paris, 1863), no. 162,
pp. 2 et 3. See also the definition of Taschereau, C.., in Driver v. Coca-Cola
Ltd., [1961] S.C.R. 201, at pp. 204-205.
14 See, for example, the description by Jean Carbonnier, Droit civil, 3e 6d.,
t. 2, (Paris, 1962), no. 2, p. 2: “Il ne faut, cependant, comprendre dans le patri-
moine que les droits qui ont une signification 6conomique et sont suscep-
tibles d’6tre 6valu6s en argent. Les autres en sont exclus et sont dits, pour
cette raison, droits extra-patrimoniaux.”
15 It follows from the definition of extra-patrimonial rights given in the
text that this writer does not agree with Taschereau, CJ., as to the nature
of an extra-patrimonial right. The Chief Justice defines the right as one
which has no “valeur p6cuniaire que pour [son] titulaire” (Driver v. Coca-
Cola Ltd., at p. 205). One would conclude from this definition, for example,
that usufruct was an extra-patrimonial right, a clearly incorrect idea which
might have enormous consequences in a case where the death of the victim
was not instantaneous and the judgment turned on this point rather than
the “naissance du droit”.
16 [1961] S.C.R. 201; aff’g [1960] B.R. 313.
McGILL LAW JOURNAL
[Vol. 16
Quebec, 17 whereas in France and the United States, the jurisprudence
is replete with examples of the problem.
In France the issue appears to be settled. Despite the impressive
number of judgments to the contrary, 8 the Cour de Cassation has
settled the issue ‘9 by holding that instantaneous death does not
affect the coming into existence of such rights as the French
courts recognize in damage actions. Those authors who treat the
point are nearly unanimous in their support of this position. Thus,
for example, Mazeaud and Tunc have stated:
Le dommage est n~cessairement subi par la victime avant son ddcs.
Si rapide qu’ait dt6 la mort, il s’est forc6ment dcoul6 entre elle et les
coups portds au moins un instant de raison. Obligatoirement les coups
ont prc~dd6 la mort. Dans cet instant, si bref fftt-il, oti la victime d6jh
atteinte n’6tait pas encore d6c~de, dans cet instant oti son patrimoine
existait encore, est nde la crdance d’indemnit6… P
The prevailing American viewpoint, suggests Prosser,21 is that
“since the decedent has had not time to suffer any appreciable
damages … no cause of action ever has vested in him”,22 but Pros-
ser’s own view is that this is not a necessary conclusion of a court
ruling under a “survival” statute 23 since the swiftness of the demise
of the victim must only be significant relative to those damages
which require either consciousness or duration to exist at all,
17 Tessier v. La Compagnie du Grand Tronc, (1899), 5 R. de J. 1 (C.S.).
18See, for example, Boillon v. Chem. de fer Lyon-Mdditerrande, Besangon,
1 d6c. 1880, D. 1881.2.65 et note, S. 1881.2.20; Goossens v. Chem. de fer du
Nord, Amiens, 10 juillet 1901, S. 1902.2.8; Auel v. Chem. de fer du Midi,
Toulouse, 17 avr. 1902, S. 1905.2.81, note P. Lacoste; Chem. de fer Paris-
Orldans v. Noblet, Angers, 13 mai 1929, D. 1929.2.161, note Josserand; and
cases cited by Mazeaud et Tunc, Responsabilitg civile, 5e 6d., t. 2, (Paris,
1958), no. 1912, p. 886, no. 4.
19 Comp. gin. des Omnibus v. Sanson, Req., 10 avril 1922, S. 1924.1.153,
note P. Esmein, D.P. 1923.1.52, note H. Lalou.
2oMazeaud et Tunc, op. cit., n. 18, no. 1912, p. 886. See also Baudry-Lacan-
tinerie et Barde, Des obligations, 2e 6d., t. 13, no. 2884, p. 1118; P. Lacoste,
S. 1905.2.81; R. Savatier, Le dommage mortel, (1938), 37 Rev. trim. droit
civil 187, at 193; Planiol et Ripert, Traitd pratique de droit civil frangais,
dd. P. Esmein, t. 6, 2e dd., (Paris, 1952), n. 658, p. 924, n. 1; P. Esmein, note,
S. 1924.1.153.
21W.L. Prosser, The Law of Torts, 3rd ed., (St. Paul, 1964).
2 Ibid., p. 924. See the cases cited there in n. 45 and the cases contra in
n. 46 on the following page.
be restrictively interpreted.
23 One must remember that the statutory remedy, being exceptional, will
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
while remaining irrelevant insofar as those damages which, being
independent of these factors, may be objectively ascertained.24
The Driver v. Coca-Cola Ltd.25 case clearly does not put an end
to the discussion of this issue in the Province of Quebec. 26 The
Chief Justice 27 does not deal with the issue generally; he only
discusses instantaneous death insofar as it relates to specific heads
of damages,28 which might, at a future date, leave the door open
for a lawyer who was not pleading the same damages.29 Cartwright,
J., dissenting in part, assumes a position which clearly indicates
that he favours the coming into being of the right in such circum-
stances,30 while Fauteux, J., relying on the French authors and
jurisprudence, supports the view of the French jurists with their
very turn-of-phrase. 3’
One must conclude that the better view of the law is that the
death of the victim, whether after an attenuated agony or at the
instant of the accident, cannot suppress the birth of a right of action
in the patrimony, for the patrimony continues to exist, uninterrupted
by death, devolving from one heir to another throughout the con-
tinuum of time. It is the patrimony to which the damage has been
24This statment is impliedly supported by Naylor v. Yorkshire Electricity
Board, [1966] 3 All E.R. 327, at p. 332, [1967] 1 Q.B. 244, at p. 257, per
Salmon, L. See also Salmond on Torts, 13th ed., ed. R.F.V. Heuston, (London,
1961), p. 93.
25 [1961] S.C.R. 201.
26 It is significant that the Court of Appeal does not discuss the issue
of instantaneous death or even the question of consciousness. Galipeault,
CJ., contents himself with remarking, “‘o]n le sait, la victime est dc~dde
le jour mame de l’accident. A-t-elle v~cu quelques heures, nous l’ignorons:”
[1960] B.R. 313, at p. 317. One wonders where Taschereau, Ci., found evidence
to support his conclusions regarding the instantaneous nature of the death.
27With whom Ritchie and Abbott, JJ., concur.
28 [1961] S.C.R. 201, at p. 207.
29As, for example, a lawyer who was pleading the damages mentioned in
the last clause of the immediately preceding paragraph.
(Pp. 218-219)
3o Op. cit., n. 28, at pp. 216-217.
.31Ibid., at p. 218. He appears, however, at p. 220, to contradict himself
and one may justifiably wonder what conclusion one may extrapolate from
his words. His statements are the following:
“Sans doute et dans l’intervalle de temps, ffit-ce m~me un
seul instant de raison, s’ coulant entre le coup mortel et la mort qui s’ensuivit,
on peut dire que la victime a 6t6 nantie dun droit A la rdparation de tout
pr6judice subi par elle en raison du quasi-d6lit commis h son endroit.”
(P. 220) “La disparition juridique de la personne se produit k l’instant
prdcis de son ddc~s et, h ce m~me instant, s’6teint juridiquement la possibilit6
pour elle d’acqu6rir des droits ou des obligations.”
McGILL LAW JOURNAL
[Vol. 16
caused and it is the successors to that patrimony who have the
right to protect its integrity and to judicially call upon whosoever
violates its integrity to repair the damage he has wrought. The
damage results from the delict, not from the death, and hence the
timing of the decease is irrelevant as regards the “naissance du
droit”.
3) The Theory of Transmissibility
Although the Civil Code defines succession as “…the trans-
mission by law or by the will of man… of the property and the
transmissible rights and obligations of a deceased person,” 32 it gives
no indication that there may be certain delictual claims which do
not fall into the category of transmissible rights. 3 The articles
dealing with the seizin of heirs 34 and the legatees 31 impose no
limitation regarding the transmissibility of rights or actions. Article
607 reads, in pertinent part:
Les hdritiers l6gitimes lorsqu’ils succ~dent sont saisis de plein droit des
biens, droits et actions du ddfunt…
Article 891 is worded differently, but has much the same effect:
Le ldgataire… est par le ddc~s du testateur… saisi du droit b la chose
l6gude… ou du droit d’obtenir le paiement, et d’exercer les actions
qui rdsultent de son legs …
The tendency of the authors and the courts in the past to im-
pose a limitation on the transmissibility of certain claims resulted
from the old legal maxim, actio personalis moritur cum persona.
While the courts have unanimously supported the transmission of
claims for material damage,36 they have hesitated with respect to
claims for moral prejudice which, appearing to be more closely
connected to the person 37 in their origin than to the patrimony,
they have often held to be intransmissible.
Even if it be admitted that claims for moral prejudice such as
pain and suffering are personal to the victim, the writer would
suggest that this does not conclude the issue. According to article
way, indicate which rights are transmissible and which are not.
32 Art. 596 C.C. Emphasis added.
33 Furthermore, one might add that the Code does not, in any general
3 4 Art. 607 C.C.
35Art. 891 C.C.
36 See, for example, the statement of Owen, I., to this effect in Ldvesque
37 Casey, J., has suggested that such claims “… may even be said [to be]
exclusively attached to the person” in Green v. Elmhurst Dairy Limited,
[1953] B.R. 85, at p. 89.
v. Malinosky, [1956] B.R. 351, at p. 361.
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
607, the heirs succeed to the property, rights and actions of the
deceased; 38 the article, if anything, seems broad enough to cover
both categories, namely, material and moral claims. One might
argue that article 1031, on the other hand, is restrictive: creditors
may not exercise “‘… those rights which are exclusively attached
to the person.” Suffice it to say that such a limitation does not exist
in the text of article 607V 9
Those rights relating to the person which are not transmissible
are, in the opinion of the writer, of two types: first, those rights
which are clearly designated as intransmissible; 40 and second, those
rights which are impliedly intransmissible since they belong to a
person only by virtue of his juridical status and are, ex hypothesi,
not transmissible to anyone whose juridical status is not the same.41
If there are “personal” rights which are not transmissible, they are
clearly these.
Furthermore, not only are such rights not transmissible in virtue
of the provisions of the Civil Code, they are, according to the
definition given above,42 extra-patrimonial and not transmissible
on the principle that the heirs succeed to the patrimony of the
deceased and to that alone. All other rights, being patrimonial in
nature, may be validly claimed by the heirs of the deceased,43
38 Pothier, Oeuvres, 6d. Bugnet, (Paris, 1861), t. 8, pp. 111 et seq., stated the
issue in the following way in a passage on which the codifiers relied in the
drafting of art. 607. He stated, at pp. 113-114:
“Cette saisine consiste en ce que tous les droits du d6funt, toutes ses
obligations, d~s rinstant de sa mort, passent de sa personne en celle de
ses h6ritiers, qui deviennent en consdquence, d~s cet instant, chacun pour
la part dont ils sont h6ritiers … propri6taires de toutes les choses dont
le ddfunt dtait propri6taire, cr~anciers de tout ce dont il 6tait cr6ancier,
d6biteurs de tout ce dont il 6tait d6biteur; ils ont, d6s cet instant, le droit
d’intenter, toutes les actions que le d6funt avait eu droit d’intenter…”
See also Pothier, op. cit., t. 9, pp. 188 et seq.
39 Casey, I., in Green v. Elmhurst Dairy Limited, [1953] B.R. 85, at p. 90,
described art. 607 as “…couched…
in the widest terms.”
40 For example, arts. 224 (the right of the father to disavow a child) and
236 (the right of a child to establish his filiation).
41 For example, arts. 117, 148 (dealing with the action for annulment of
marriage) and 243 (paternal authority).
4 2 See supra, at p. 678.
43 With the exception, of course, of usufruct which terminates on the death
of the usufructuary (art. 479) and the life-rent (art. 1910). Both these rights
are clearly patrimonial and it is only by the express declaration of the Code
that they are not transmissible.
McGILL LAW JOURNAL
[Vol. 16
whether they be material or moral. This is also the view of the
jurisprudence.44 Thus, Casey, J. has held:
I can find no reason for saying that while we must admit the trans-
missibility of the right to claim for the “material” damages arising out
of bodily injuries, we must deny this character to the right to claim
for those called “moral”.45
Three years later the Court of Appeal was faced with the same
problem,46 which Owen, J. dealt with in a slightly different manner
from that of Casey, J. He stated that
… all the items which can be claimed as damages resulting from an
offence or quasi-offence are by definition susceptible of being expressed
in terms of money. Fundamentally they are all of the same nature.
The pecuniary value of some items can be established more easily than
that of others. Hospital and medical expenses can be established by
producing accounts which set out the exact amount in dollars and cents.
This cannot be done in the case of pain and suffering where an arbitrary
amount is awarded. In spite of this difference, as to the ease or otherwise
with which the calculation is made and the amount of the award is
determined, all of these items are basically the same and all can be
expressed in terms of money.47
As medical science has become more sophisticated and the
courts have become readier to award higher damages for a larger
number of complaints, the victim has been correspondingly reward-
ed in a more comprehensive fashion. Where moral prejudice may
one hundred years ago not have been compensated at all, today
such damages are susceptible of economic evaluation and the right
to claim them is, as a result, clearly patrimonial. As such, it is a
right which the heir or legatee may justifiably expect to find in his
inheritance.
Mazeaud and Tunc offer the following explanation of the trans-
missibility of the claim to moral damages:
… la personne de la victime se survit dans ses h6ritiers. Les h6ritiers
sont les continuateurs de la personne du d6funt. Les actions attachdes
h la personne du de cujus ne s’en ddtachent donc pas lorsqu’elles sont
4 Green v. Elmhurst Dairy Limited, [1953] B.R. 85; Lockwood v. Canadian
Steel Sales Ltd., [1956] C.S. 426; Ldvesque v. Malinosky, [1956] B.R. 351.
45Green v. Elmhurst Dairy Limited, [1953] B.R. 85, at p. 94.
46 Ldvesque v. Malinosky, [1956] B.R. 351. None of the judges sitting in
this case, namely, Hyde, Owen and Bissonnette, JJ., had sat in the earlier
case, in which Galipeault, CJ., St. Jacques, S. McDougall, Casey and Rinfret,
JJ., had taken part.
47 Ibid., at p. 360.
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
exercdes par les hdritiers. Rien ne s’oppose h ce que l’action n6e du
dommage moral se transmette aux h6ritiers de la victime.48
The view of Savatier, on the other hand, is that the action for
moral prejudice is not transmissible unless the victim has instituted
his action and the heirs are merely continuing it en reprise d’ins-
tance.
49
…
l’action en reparation du dommage moral ne se transmet pas h6r6-
ditairement, A moins d’avoir d6jh 6t6 convertie en droit p~cuniaire par
l’assignation du demandeur. Nous croyons, en effet, que, seule, la victime
du dommage moral a qualit6 pour op6rer cette remarquable transforma-
tion d’un pr6judice extrapatrimonial en droit patrimonial. 50
The French jurisprudence follows the view of Mazeaud and Tunc,
which is, in the opinion of this writer, the more consistent and
sensible.
III. Heads of damages.
1) Disbursements
Disbursements, stated most simply, are the ,”out-of-pocket”
expenses of the victim which are the direct and immediate conse-
quence of the accident. 51 They are, ex hypothesi, material damages
and, on the basis of the principles regarding transmissibility outlined
above, 12 their patrimonial nature clearly gives the heirs who succeed
to the claim of the deceased for such amounts the right to make
the claim themselves s-qualitg.53
48 Op. cit., n. 18, t. 2, no. 1909, p. 884. See also Editions de Paris v. Zay, Civ.,
17 janv. 1955, J.C.P. 1955. II. 8529 et note Blin. This is the case as long as
there is no act implying renunciation of the claim.
49R. Savatier, Le dommage mortel, (1938), 37 Rev. trim. droit civil 187,
at pp. 193, 194. This is also the view of Casault, 3., in Thompson v. Strange,
(1879), 5 Q.L.R. 205, at pp. 209-210 and Lemelin v. Ladrie, (1921), 59 C.S. 456.
50 Savatier, loc. cit., n. 49, at p. 194.
51 For a more elaborate discussion of this classification of damages, see
A.D. Guthrie, Principles of Assessment of Personal Injury Claims, (1967),
27 R. du B. 157, at pp. 163-167.
52 See supra, at pp. 682 et seq.
53 Frenette, op. cit., n. 3, at no. 162, p. 114 and no. 218, p. 161, approaches
the problem differently. The expenses incurred by the victim, being “une
cr6ance ex~cutoire sur les biens de cette personne,” are transmitted as a debt
to the heirs who then, equitably, he suggests, should be entitled to reimburse
themselves by an action under art. 1053.
McGILL LAW JOURNAL
[Vol. 16
2) Pain, Suffering and Inconvenience
The right to claim for pain and suffering is well recognized by
the courts of the Province of Quebec. 54 Clearly, however, where the
victim dies instantaneously,5
is unconscious from the time of the
accident until his death,56 or even remains in a coma for a prolonged
period of time before succumbing,57 the claim for pain and suffering
never comes into existence in the first place and, as a result, is
never transmitted to the heirs. This would presumably also be the
case where the victim, although conscious, could not feel pain or
suffer at all due to brain damage of such a nature as to cause this
effect. 8
Where the victim survives for any length of time and is conscious
of his pain and suffering, the right to claim damages under this
head comes into existence. The quantum should, however, be directly
proportional to the duration of the pain and suffering (as well, of
course, as to the intensity thereof), insofar as accurate quantification
of this sort is conceivable; it follows that the quantum ceases to
increase upon the decease of the victim. 9
Following the definitions given above 0 and the opinion of
Casey, J. in Green v. Elmhurst Dairy Ltd.,”‘ it is apparent that pain
and suffering fall into the category of moral damages, which are,
on the basis of the position delineated above, 2 transmissible to the
heirs, notwithstanding the position of some of the older jurispru-
54 Green v. Elmhurst Dairy Ltd., [1953] B.R. 85, at p. 90, per Casey, J.;
Redfern v. City of Montreal, (1937), 75 C.S. 497, at p. 500, per Mackinnon, I.
See also Guthrie, loc. cit., n. 51, at p. 167.
55Naylor v. Yorkshire Electricity Board, [1966] 3 All E.R. 327, at p. 332,
[1967] 1 Q.B. 244, at p. 257, per Salmon, L.i.; Morgan v. Scoulding, [1938] 1
All E.R. 28, at p. 30, [1938] 1 K.B. 786, at p. 790.
56 Benham v. Gambling, [1941] A.C. 157, at p. 162, [1941] 1 All E.R. 7, at p. 10,
per Viscount Simon, L.C.; Driver v. Coca-Cola, [1961] S.C.R. 201, at p. 207, per
Taschereau, I., as he then was.
57 Wise v. Kaye, [1962] 1 All E.R. 257, at p. 264, [1962] 1 Q.B. 638, at p. 652,
per Sellers, Li. Also at [1962] 1 All E.R. 267 and [1962] 1 Q.B. 659, per
Upjohn, Li.
58 Oliver v. Ashman, [1961] 3 All E.R. 323, [1962] 2 Q.B. 210, particularly
the remarks of Willmer, Li., at [1961] 3 All E.R. 335 and [1962] 2 Q.B. 236.
59 Smith v. Pelletier, [1942] B.R. 664, at p. 668, per Pr6vost, J.
60See supra, pp. 677-678.
61 [1953] B.R. 85, at pp. 90-91.
62See supra, pp. 682 et seq.
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THE TRANSMISSIBILITY OF DAMAGE CLAIMS
dence to the contrary. 3 The French jurisprudence also supports the
transmissibility of the claim for pain and suffering.”
3) Total Temporary Incapacity
Total temporary incapacity, the award compensating the loss
of earnings during the period when the victim was wholly unable
to work, is clearly a material damage and, upon any theory of
transmissibility, the heirs succeed to this claim. A full discussion
of the factors involved in the calculation of this claim is not within
the scope of this article,65 but it must be noted that the amount will
cease to accrue immediately upon the decease of the victim 66 and
the amount to be claimed will be limited to the loss of salary between
the date of the accident and the death of the victim.7
4) Partial Permanent Incapacity
Partial permanent incapacity is intended to compensate the
victim for the partial loss of earning power which he will suffer
as a result of his accident. It comes into existence when total tem-
porary incapacity ceases and is largely a future damage by nature.
In the hypothesis with which this article deals, namely, the death
of the victim before trial, it is unlikely that an award under this
63 See, for example, Thompson v. Strange, (1879), 5 Q.L.R. 205, at p. 209,
per Casault, J.; Lemelin v. Ladrie, (1921), 59 C.S. 456, at p. 459, per Belleau, J.;
Vallde v. Provost Cartage Co., [1958] C.S. 127, at p. 131, per Brossard, J.;
and Smith v. Pelletier, [1942] B.R. 664, at p. 668, per Pr6vost, T. This is also
impliedly the view of Mignault, La responsabilitd ddlictuelle en la province
de Quebec, Journ~es du droit civil frangais (Montr6al, 1936), 333, at p. 343, and
expressly the view of Mayrand, loc. cit., n. 9, at p. 15, given the current
state of Quebec legislation on the matter: “Etrange paradoxe! On refuse
aux h6ritiers le prix de la douleur (solatium doloris) qu’ils 6prouvent person-
nellement au d6c~s d’un 6tre cher, mais on leur accorde le prix de la
douleur (pretium doloris) 6prouv6e par le de cujus; il y a d’une part douleur
sans rdconfort, d’autre part enrichissement sans douleur.”
64Avril v. Kahn, Civ., 4 janv. 1944, D.A. 1944.106, Gaz. Pal. 1944.1.128; Dupuy
v. Roussel, Montpellier, 4 d6c. 1940, Gaz. Pal. 1941.1.236 et note.
650n this point, see the article by Guthrie, loc. cit., n. 51, at pp. 184-192.
66Pauchet v. Lauvergnat, Civ., 24 nov. 1942, Gaz. Pal. 1943.1.50 et note;
Miser v. Marshall, Civ., 15 juillet 1943, Gaz. Pal. 1944.1.86 et note, D.A. 1944.
3, J.C.P. 1943.2.500.
67 Vallge v. Provost Cartage Co. Ltd., [1958] C.S. 127; Cie d’Assur. La
Nationale v. Tournemire, Civ., 24 mars 1953, D. 1953.336, Gaz. Pal. 1953.1376
et note.
McGILL LAW JOURNAL
[Vol. 16
head would be made at all 8 If it could be, it would be an assessment
of the damages between the time of the accident and the time of
the death. Clearly a material prejudice, the claim arising out of
incapacity, is transmissible.69
5) Shortening of Life
In discussing any damages relating to the shortening or loss of
life one must keep in mind a distinction not always made by the
high courts of this country, namely, the distinction between the
shortening of the life expectancy of the victim, on the one hand, and
the loss of enjoyment of those years during which the victim may
expect to live, on the other.70 The distinction, as we shall see, is
crucial since the first type of damages may be objectively appraised
and relate to different factors than those damages which fall in the
second category, and which may be subjectively appraised.
Damages for the shortening of life relate to the increasingly
accepted proposition that life itself is an asset,7’ the most precious
of all assets, in fact, and one in which every man has a legal right.72
Si mis6rable soit-il, 1’homme normal tient h la vie comme un plus
pr6cieux des biens; la lui enlever, c’est lui causer le plus grand pr6-
judice qui se puisse concevoir… A juste titre on peut consid6rer la vie
comme le plus prdcieux des biens de la terre, puisqu’elle est le bien sans
lequel les autres ne sont que n6ant. .
Every man has the legal right to ensure that the integrity of this
most precious of all assets be not violated and, if it is, that the right
to receive compensation for the damage caused by the author of
the delict, which right is a patrimonial one, be exercised by himself
or by his heirs, as the case may be.
68It could clearly be made where the victim had recovered sufficiently
from his injuries to return to work before his death, either from the accident
or some other cause, but it must be kept in mind that the action for damages
under art. 1053 C.C., being prescriptible by one year (art. 2262(2) C.C.), any
award for partial permanent disability would be quite small. (It is, to begin
with, only a percentage of the cost of an annuity equivalent to the annual
earnings multiplied by the percentage of incapacity. See Guthrie, loc. cit., n. 51,
pp. 192-206, for a deeper discussion of the point.) Matin v. Sauce, Paris, 8
mars 1949, Gaz. Pal. 1949.2.26. See also Cie d’Assur. La Nationale v. Tourne-
mire, Civ., 24 mars 1953, D. 1953.336, Gaz. Pal. 1953.1.376 et note.
69 Marin v. Sauce, Paris, 8 mars 1949, Gaz. Pal. 1949.2.26.
70See Owen, J., in Ldvesque v. Malinosky, [1956] B.R. 351, at p. 362.
71Mayrand, loc. cit., n. 9, at p. 2.
72Guthrie, Zc. cit., n. 51, at p. 179.
‘3 Mazeaud et Tunc, op. cit., n. 18, no. 1913, p. 887.
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
This is clearly the view of the Quebec jurisprudence 74 although,
even subsequent to the two leading decisions of the Court of
Appeal,75 judges of the Superior Court, misinterpreting the portent
of those cases, have followed them and denied to defendants partial
inscriptions in law for loss of enjoyment of life.76 The English courts
have come to the same conclusion on the matter of awarding dam-
ages for the shortening of life and one finds a certain advantage
in reading their judgments on this matter since the judges there
appear to be less equivocal and indeed quite outspoken and incisive
in dealing with the issue .7 7 The first decision of the House of Lords,
which appears to have stated the law for all time, Rose v. Ford,78
contains the following statements by Lord Russell of Killowen:
I am of opinion that if a person’s expectation of life is curtailed he is
necessarily deprived of something of value, and that if that loss to him
is occasioned by the negligence of another, that other is liable to him
in damages for the loss7 9
And Lord Wright:
… a man has a legal right in his own life. I think he has a legal interest
entitling him to complain if the integrity of his life is impaired by
tortious acts not only in regard to pain, suffering and disability, but
in regard to the continuance of life for its normal expectancy. A man
has a legal right that his life should not be shortened by the tortious
act of another. His normal expectancy of life is a thing of temporal
74 Ldvesque v. Malinosky, [1956] B.R. 351; Green v. Elmhurst Dairy Limited,
[1953] B.R. 85; Lockwood v. Canadian Steel Sales Ltd., [1956] C.S. 426; De La
Sablonniare v. The Karam Co. Ltd., [1958] R.L. 436 (C.S.).
75 Green v. Elmhurst Dairy Limited, [1953] B.R. 85; Ldvesque v. Malinosky,
[1956] B.R. 351.
76 Honsberger v. Godbout, [1955] R.P. 311; Lavoie v. Groleau, [1956] R.P.
324. This interpretation by the Superior Court judges is probably not a
misinterpretation, in fact, given the statement of Casey, I., in Driver v. Coca-
Cola Limited, [1960] B.R. 313, at p. 327, denying that he had, in Green v.
Elmhurst Dairy Limited, allowed damages for the shortening of life, but,
see the interpretation of Owen, J., of the words of Casey, J., in the former’s
decision in Ldvesque v. Malinosky, [1956] B.R. 351, at p. 362: “While the
formal judgment (in Green v. Elmhurst Dairy Limited) uses the term ‘loss
of enjoyment of life’, the term ‘shortening of life expectancy’ used in the
notes of Mr. Justice Casey correctly describes the claim which was made.”
77 Flint v. Lovell, [1935] 1 K.B. 354; Rose v. Ford, [1937] A.C. 826, [1937]
3 All E.R. 359; Benham v. Gambling, [1941] A.C. 157, [1941] 1 All E.R. 7;
Oliver v. Ashman, [1961] 3 All E.R. 323, [1962] 2 Q.B. 210; Wise v. Kaye,
[1962] 1 All E.R. 257, [1962] 1 Q.B. 638; and Naylor v. Yorkshire Electricity
Board, [1966] 3 All E.R. 327, [1967] 1 Q.B. 244.
78 [1937] A.C. 826, [1937] 3 All E.R. 359.
70 [1937] A.C. 826, at p. 839.
McGILL LAW JOURNAL
[Vol. 16
value, so that its impairment is something for which damages should
be given8 0
It is clear that the test must be an objective one 8 ‘ and, although
one might disagree with the rather rigid method adopted by the
House of Lords for making this objective assessment, it is apparent
that, contrary to the position taken by the Supreme Court of Canada
in Driver v. Coca-Cola Limited,8 2 the lack of awareness of the victim
is totally irrelevant in determining whether damage of this type has
or has not been suffered. 3 The damage occurs ipso facto at the time
of the accident and it is irrelevant whether the victim dies imme-
diately, lives for less than a year but dies before he can take the
action, or lives so that he may take the action himself. His death
is only relevant insofar as its occurrence before the trial allows the
judge to determine his life expectancy more accurately.34
The consciousness of the victim is, on the other hand, very
relevant to the assessment of damages for the loss of enjoyment of
life, for it is the sad perspective of seeing a shortened life marked
by physical and mental anguish, filled with recurring infirmities
and punctuated by pain, which is compensated under this head.
It is these damages which the Supreme Court might justifiably have
not awarded in the Driver v. Coca-Cola Limited case since Beverly
Driver would have had to be conscious of these damages for them
even to exist. It should be kept in mind, when assessing these dam-
ages, that they should be considered together with those damages
awarded for pain and suffering since, to some extent, they do
overlap.8 5
IV. Conclusion.
All damages, whether material or moral, which can be evaluated
in pecuniary terms and which should, as a result, be awarded to
the victim himself, should by virtue of their patrimonial nature be
transmissible to his heirs. The fact that the heirs may not have
80 Ibid., at pp. 847-848.
81 Benham v. Gambling, [1941] A.C. 157, at p. 166, per Viscount Simon, L.C.
82 [1961] S.C.R. 201.
83 Oliver v. Ashman, [1961] 3 All E.R. 323, [1962] 2 Q.B. 210; Wise v. Kaye,
[1962] 1 All E.R. 257, [1962] 1 Q.B. 638. This is also the position of Cartwright,
J., as he then was, dissenting in the case of Driver v. Coca-Cola Limited, at
pp. 216-217.
84 Rose v. Ford, [1937] A.C. 839, at p. 846, per Lord Wright, and at p. 856,
per Lord Roche.
85Lockwood v. Canadian Steel Sales Limited, [1956] C.S. 426.
No. 4]
THE TRANSMISSIBILITY OF DAMAGE CLAIMS
691
suffered the more personalized damages themselves does not change
the effect of the artifice created by the law, namely, the patrimony
or estate, and it is by virtue of the heirs’ relationship to this artifice
that they are in the position to collect these damages. Nor does the
fact that they have not personally suffered the damages imply that
these damages, if awarded, are necessarily punitive, for punitive
damages are distinguished by their lack of relationship to the real
damage which has been caused by the faulty act and not by their
lack of relationship to the person who is claiming them.
