Hall v. Hebert, [1993] 2 SCR 159

Hall v. Hebert, [1993] 2 S.C.R. 159

 

Vincent Hall      Appellant

 

v.

 

Jean Hebert, also known as Joseph Jean Claude Hebert               Respondent

 

Indexed as:  Hall v. Hebert

 

File No.:  22399.

 

1992:  October 6; 1993:  April 29.

 

Present:  La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the court of appeal for british columbia

 

                   Torts ‑‑ Duty of care ‑‑ Owner of car allowing impaired person to drive ‑‑ Car involved in accident and driver injured ‑‑ Whether duty of care to deny impaired person permission to drive the vehicle.

 

                   Torts ‑‑ Defences ‑‑ Ex turpi causa ‑‑ Owner of car allowing impaired person to drive ‑‑ Car involved in accident and driver injured ‑‑ Whether or not impaired driver barred from suing by principle of ex turpi causa.

 

                   Torts ‑‑ Liability ‑‑ Apportionment ‑‑ Owner of car allowing impaired person to drive ‑‑ Car involved in accident and driver injured ‑‑ Proper apportionment of liability.

 

                   Respondent, who owned a "souped-up" muscle car, and his passenger (appellant) had been drinking.  When the car stalled on an unlit and particularly rough gravel road with a sharp drop off to one side, respondent decided the only way to start it was "a rolling start" when he could not find the keys after they had shaken out of the ignition.  At appellant's request, respondent allowed appellant to drive when they tried the rolling start.  Respondent had been aware that appellant had consumed 11 or 12 bottles of beer that evening, three within the last hour prior to the accident.  Despite this, he did not consider the appellant drunk.  Appellant lost control of the car; it left the road, went down the steep slope and turned upside down.  Both were able to walk away from the accident and reached the house of an acquaintance who described them as being drunk.  It was later discovered that the appellant had suffered significant head injuries.

 

                   The trial judge allowed appellant's action for civil damages and apportioned liability at 75 percent to the respondent and 25 percent to the appellant.  The Court of Appeal allowed respondent's appeal.  At issue here are:  (1) whether a person having the care and control of a motor vehicle owes a duty of care to another who is known to be impaired to deny that impaired person permission to drive the vehicle; (2) whether ex turpi causa non oritur actio provides respondent with a complete defence to this action; and (3) whether the trial judge erred in his apportionment of liability.

 

                   Held (Sopinka J. dissenting):  The appeal should be allowed.

 

                   Per La Forest, L'Heureux‑Dubé, McLachlin and Iacobucci JJ.:  Courts can bar recovery in tort on the ground of the plaintiff's immoral or illegal conduct but only in very limited circumstances.  The basis of this power lies in duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue.  Generally, the ex turpi causa principle will not operate in tort to deny damages for personal injury, since tort suits will generally be based on a claim for compensation.  The use of ex turpi causa is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant since no inconsistency is introduced into the fabric of the law in making such an award. 

                   The defence of ex turpi causa non oritur actio should not be replaced with a judicial discretion to negate or refuse to consider a duty of care on a policy basis.  Shifting the analysis to the issue of duty provides no new insight into the fundamental question of when the courts should be entitled to deny recovery in tort to a plaintiff on the ground of the plaintiff's immoral or illegal conduct.  It would also introduce a series of new problems.

 

                   The duty approach does not fully capture the sense of the principle of ex turpi causa.  The ex turpi causa principle operates most naturally as a defence because its purpose is to frustrate what would be, had ex turpi causa no role, a complete cause of action. 

 

                   The relationship between plaintiff and defendant which gives rise to their respective entitlement and liability arises in tort from a duty predicated on foreseeable consequences of harm.  This duty of care is owed to all persons who may reasonably be foreseen to be injured by the negligent conduct.  The legality or morality of the plaintiff's conduct is therefore an extrinsic consideration.  Use of ex turpi causa as a defence rather than a distortion of the notion of the duty of care owed by the defendant to the plaintiff is preferable in the rare cases where concerns for the administration of justice require that the extrinsic consideration of the character of the plaintiff's conduct be considered.  The notion that the courts cannot, in certain circumstances, consider whether a duty of care arises has the practical effect of denying a duty which would otherwise arise, and hence, in substance, of violating the principle against making certain parties outlaws in civil proceedings. 

 

                   Practical reasons exist for treating ex turpi causa as a defence.  First, to treat it as going to the duty of care would inappropriately place on the plaintiff the onus of showing the absence of disentitling conduct.  Second, the duty of care approach is an all or nothing approach, and cannot be applied selectively to discreet heads of damages.  Finally, the consideration of illegal or immoral conduct at the stage of determining the duty of care would raise procedural problems where concurrent claims are made in tort and contract.  The onus would be on the defendant to prove the relevance of the plaintiff's conduct in contract but on the plaintiff to disprove the relevance of the conduct in tort, unnecessarily complicating the task of the trial judge and the parties.

 

                   The appellant need not be denied recovery here because the compensation sought was for injuries received.  This compensation can be reduced to the extent of the appellant's contributory negligence, but cannot be wholly denied by reason of his disreputable or criminal conduct.

 

                   Per Cory J.:  This Court has approved the two stage test for considering foreseeability, proximity and duty of care:  (i) is there a sufficiently close relationship between the parties so that, in the reasonable contemplation of a party, carelessness on its part might cause damage to another person, and if so, (ii) are there any considerations which should negate or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise.  This test, particularly the second branch, is broad enough to take into account policy considerations which may in fact negate the existence of a duty of care.  Damages have been awarded in many cases where the plaintiff has been guilty of illegal acts.

 

                   The old common law defence of contributory negligence that stood as an absolute bar to recovery in tort actions has been legislated out of existence.  The Negligence Acts of all the common law provinces provide a basis for a fair assessment and distribution of the liability.  The defence of volenti, also a complete bar to recovery, has been confined to a narrow scope by this Court but may provide a valid defence in cases of economic tort.  The doctrine of ex turpi causa should be eliminated in its application to tort cases.  It would be better to consider the issue as a question to be resolved on considerations of public policy.

 

                   The respondent as the owner of the vehicle, was charged with its care and control and clearly owed a duty to the appellant to refuse to permit him to drive his vehicle.  Common sense dictates that one who has the care and control of a vehicle should not permit another person that he knows or should know is unfit to drive to take over the control of his vehicle.  Particularly this is so where the vehicle is high powered, the driving conditions are difficult and the proposed driver is clearly impaired.

 

                   The doctrine of ex turpi causa should not be applied under any guise.  The issue of "public policy" should not be considered under the archaic Latin rubric of ex turpi causa but honestly and frankly under the designation of public policy.  Generally, decisions in which the ex turpi causa defence has been applied have required the existence of joint illegal conduct by the parties.  If a plaintiff's conduct was in contravention of the law and if this conduct was a factor in producing his or her injury, the plaintiff may well be found guilty of contributory negligence or indeed of being the author of his or her own misfortune.  Yet simply because the plaintiff was a wrongdoer does not necessarily mean that the plaintiff can have no remedy at law for harm done to him or her.

 

                   Appellant should be allowed to recover compensation on the grounds of public policy.  To permit him to recover would not offend or shock the conscience of reasonable right thinking members of the community fully apprised of the facts.

 

                   There was little to choose between the negligence of the appellant and that demonstrated by the respondent.  Individuals must take responsibility for their actions.  It was the appellant who sought permission to drive the vehicle.  He must or should have been aware of his impairment.  He knew of the powerful nature of the vehicle and the problems involved in roll starting it.  He was aware of the dangers presented by the dark inclined gravel road sloping off steeply to the gravelpit on one side.  He must accept responsibility for seeking permission to drive the car and for the manner in which he drove it.  The liability should be divided equally between the appellant and the respondent.

 

                   Per Gonthier J.:  For the reasons given by Cory and McLachlin JJ., the appellant, on the facts of this case, had a duty of care and a defence of ex turpi causa was not open to him, be it viewed as such or as a matter of public policy.  A restricted and more carefully circumscribed application of the defence of ex turpi causa must lie in tort cases.  Its principle, properly applied, has a valid and important role to play in limited circumstances but it is not appropriate to define exhaustively a priori the circumstances for its application.

 

                   Per Sopinka J. (dissenting):  The defence of ex turpi causa does not apply.  The appeal and the action should be dismissed because of the plaintiff's failure to establish that the defendant owed a duty of care to the plaintiff in the circumstances.  The traditional incremental approach to the development of new categories of liability, whereby liability is extended in particular circumstances by analogy to existing categories, did not give rise to a duty of care.  The special circumstances calling for the creation of a positive duty of care in Dunn v. Dominion Atlantic Railway, Jordan House Ltd. v. Menow and Crocker v. Sundance Northwest Resorts Ltd. were totally absent here.  Extending liability would not amount to an incremental extension of liability, but a quantum leap. The approach in Anns v. Merton London Borough Council did not give rise to a duty of care either.  This approach involves, first, a recognition of a broad prima facie duty of care based on foreseeability of harm followed by the application of a second step to determine whether there is a sound policy reason why the duty should be negated or limited.  No unifying principle has been developed for the application of the second step.

 

                   The doctrines of ex turpi causa and volenti non fit injuria are examples of limitations on the duty of care which have been supported, at least in part, by reference to the policy not to recognize a duty of care in circumstances in which none could reasonably be expected.  Ex turpi causa, properly understood, applies to deny recovery where lending the court's assistance to persons involved in serious criminal activity would reflect adversely on the administration of justice.  Such is not the case here.  Volenti applies only if the plaintiff has assumed both the physical and legal risk, but it does not exhaust the operation of the policy not to find a duty of care where none could reasonably be expected.  Apart from ex turpi causa and volenti there is a policy not to recognize a duty of care in circumstances in which the plaintiff cannot have any reasonable expectation of receiving care nor of the defendant's providing it.  Criminal conduct can be the basis for negating a duty of care not because it is criminal but because it can be inferred from the conduct itself, apart from its criminal character, that no reasonable expectation of care existed on the part of the person injured.  The absence of reasonable expectation can be established on the basis of the relationship of the parties and their conduct in all the circumstances of the case.

 

                   The plaintiff, when making the request, could not at the same time have had any expectation that the defendant owed the plaintiff a duty to take care for his safety by refusing the request.  This was not a case of the plaintiff's being guilty of contributory negligence in having such an expectation but rather one in which the plaintiff had no such expectation.  It was, therefore, not a case for apportionment of liability because no liability arose.

 

Cases Cited

 

By McLachlin J.

 

                   Considered:  Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452;   referred to:  Smith v. Jenkins (1970), 119 C.L.R. 397; Lane v. Holloway, [1967] 3 All E.R. 129; Gala v. Preston (1991), 172 C.L.R. 243; Pitts v. Hunt, [1990] 3 All E.R. 344; Joubert v. Toronto General Trusts Corp. (1955), 15 W.W.R. 654; Rondos v. Wawrin (1968), 64 W.W.R. 690; Tallow v. Tailfeathers, [1973] 6 W.W.R. 732; Foster v. Morton (1956), 4 D.L.R. (2d) 269; Mack v. Enns (1983), 44 B.C.L.R. 145; Betts v. Sanderson Estate (1988), 31 B.C.L.R. (2d) 1; Dube v. Labar, [1986] 1 S.C.R. 649; Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Lehnert v. Stein, [1963] S.C.R. 38; Burns v. Edman, [1970] 1 All E.R. 886; Meadows v. Ferguson, [1961] V.R. 594; Lewis v. Brannen, 65 S.E. 189 (1909); Harper v. Grasser, 150 P. 1175 (1915); McNichols v. J. R. Simplot Co., 262 P.2d 1012 (1953); Katco v. Briney, 183 N.W.2d 657 (1971); Colburn v. Patmore (1834), 1 C.M. & R. 73, 149 E.R. 999; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Tomlinson v. Harrison, [1972] 1 O.R. 670; Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Donoghue v. Stevenson, [1932] A.C. 562; Henwood v. Municipal Tramways Trust (1938), 60 C.L.R. 438.

 

By Cory J.

 

                   Considered:  Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; referred to:  Donoghue v. Stevenson, [1932] A.C. 562; Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299; Dorset Yacht Co. v. Home Office, [1969] 2 Q.B. 412; Jordan House Ltd. v. Menow, [1974] S.C.R. 239; Hempler v. Todd (1970), 14 D.L.R. (3d) 637; Ontario Hospital Services Commission v. Borsoski (1973), 54 D.L.R. (3d) 339; Betts v. Sanderson Estate (1988), 31 B.C.L.R. (2d) 1; Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; Butterfield v. Forrester (1809), 11 East. 60, 103 E.R. 926; Davies v. Mann (1842), 10 M. & W. 546, 152 E.R. 588;  Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Lehnert v. Stein, [1963] S.C.R. 38; Eid v. Dumas, [1969] S.C.R. 668; Dube v. Labar, [1986] 1 S.C.R. 649;  Norberg v. Wynrib, [1992] 2 S.C.R. 226; Smith v. Jenkins (1970), 119 C.L.R. 397; Pitts v. Hunt, [1990] 3 All E.R. 344; Progress and Properties Ltd. v. Craft (1976), 135 C.L.R. 651; Hegarty v. Shine (1878), 14 Cox C.C. 145; Lewis v. Sayers, [1970] 3 O.R. 591; Jackson v. Harrison (1978), 138 C.L.R. 438; Gala v. Preston (1991), 172 C.L.R. 243; National Coal Board v. England, [1954] 1 All E.R. 546; Tallow v. Tailfeathers, [1973] 6 W.W.R. 732; Harris v. Toronto Transit Commission, [1967] S.C.R. 460; Miller v. Decker, [1957] S.C.R. 624.

 

By Gonthier J.

 

                   Referred to:  Norberg v. Wynrib, [1992] 2 S.C.R. 226; Mack v. Enns (1981), 30 B.C.L.R. 337.

 

By Sopinka J. (dissenting)

 

                   Anns v. Merton London Borough Council, [1978] A.C. 728; Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1; Caparo Industries p.l.c. v. Dickman, [1990] 1 All E.R. 568; Murphy v. Brentwood District Council, [1991] 1 A.C. 398; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Just v. British Columbia, [1989] 2 S.C.R. 1228; Jordan House Ltd. v. Menow, [1974] S.C.R. 239; Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310; Gala v. Preston (1991), 172 C.L.R. 243; Norberg v. Wynrib, [1992] 2 S.C.R. 226.

 

Authors Cited

 

Clerk, John Frederic.  Clerk & Lindsell on Torts, 16th ed.  Common Law Library No. 3.  London:  Sweet & Maxwell, 1989.

 

Crago, Neville. H.  "The Defence of Illegality in Negligence Actions" (1964), 4 Melbourne U.L.R. 534.

 

Davis, Harold S.  "The Plaintiff's Illegal Act as a Defense in Actions of Tort" (1904‑05), 18 Harv. L. Rev. 505.

 

Debattista, Charles.  "Ex Turpi Causa Returns to the English Law of Torts:  Taking Advantage of a Wrong Way Out" (1984), 13 Anglo‑Am. L.R. 15.

 

Fleming, John G.  The Law of Torts, 7th ed.  Sydney:  Law Book Co., 1987.

 

Ford, W. J.  "Tort and Illegality:  The Ex Turpi Causa Defence in Negligence Law" (1977‑78), 11 Melbourne U.L.R. 32, 164.

 

Fridman, G. H. L.  "The Wrongdoing Plaintiff" (1972), 18 McGill L.J. 275.

 

Gibson, Dale.  "Comment:  Illegality of Plaintiff's Conduct as a Defence" (1969), 47 Can. Bar Rev. 89

 

Klar, Lewis N.  Tort Law.  Toronto:  Carswell, 1991.

 

Legrand, Pierre, jr., "La dynamique de l'impunité:  autour de la défense d'ex turpi causa en common law des délits civils" (1991), 36 McGill L.J. 609.

 

Linden, Allen M.  Canadian Tort Law, 4th ed.  Toronto:  Butterworths, 1988.

 

MacDougall, Bruce.  "Ex Turpi Causa:  Should a Defence Arise From a Base Cause?" (1991), 55 Sask. L. Rev. 1.

 

Prosser, William L.  Handbook of the Law of Torts, 4th ed.  St‑Paul:  West Publishing Co., 1971.

 

Salmond, Sir John William.  Salmond on Torts, 17th ed.  By R. F. V. Heuston.  London:  Sweet & Maxwell, 1977.

 

Salmond, Sir John William.  Salmond and Heuston on the Law of Torts, 19th ed.  By R. F. V. Heuston and R. A. Buckley.  London:  Sweet & Maxwell, 1987.

 

Swanton, Jane P.  "Plaintiff a Wrongdoer:  Joint Complicity in an Illegal Enterprise as a Defence to Negligence" (1981), 9 Sydney L. Rev. 304.

 

Weinrib, Ernest J.  "Illegality as a Tort Defence" (1976), 26 U.T.L.J. 28.

 

Weinrib, Ernest J.  "The Special Morality of Tort Law" (1989), 34 McGill L.J. 403.

 

Williams, Glanville L.  Joint Torts and Contributory Negligence.  London:  Stevens & Sons, 1951.

 

Winfield, Sir Percy Henry.  Winfield and Jolowicz on Tort, 12th ed.  By M. V. H. Rogers.  London:  Sweet & Maxwell, 1984.

 

Wright, Cecil A.  "Introduction to the Law of Torts" (1944), 8 Cambridge L.J. 238.

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1991), 53 B.C.L.R. (2d) 201, 6 C.C.L.T. (2d) 294, 46 C.P.C. (2d) 192, 28 M.V.R. (2d) 94, allowing an appeal from a judgment of Spencer J. (1989), 14 A.C.W.S. (3d) 102, with supplementary reasons (1989), 15 A.C.W.S. (3d) 382.  Appeal allowed, Sopinka J. dissenting.

 

                   Steven H. Heringa and Robert D. Kirkham, for the appellant.

 

                   James S. Carfra, Q.C., and Dean P. J. Lawton, for the respondent.

 

                   The judgment of La Forest, L'Heureux-Dubé, McLachlin and Iacobucci JJ. was delivered by

 

//McLachlin J.//

 

                   McLachlin J. -- I have had the advantage of reading the reasons of my colleague Justice Cory.  While I agree with much of what he has said, I find myself unable to agree with certain aspects of his reasons from the point of view of theory as well as practice.

 

                   This case is one of great importance.  The Court is asked to rule on the question of whether and, if so, in what circumstances and under what doctrinal rubric courts may prevent a plaintiff from recovering compensation in tort for loss suffered by the fault of another on the ground that the plaintiff's conduct violated legal or moral rules.

 

                   My colleague would "eliminate" the doctrine of ex turpi causa non oritur actio:  at p. 000.  In place of the doctrine he would give the courts a power to reject claims on considerations of public policy.  Where the plaintiff's claim arises in the context of negligence, the courts would apply this public policy rationale at the stage of deciding whether a cause of action lies, i.e., in determining whether the plaintiff is owed a duty of care.

 

                   My first concern is that, in spite of his explicit statement to the contrary, my colleague does not ultimately make it clear whether he would eliminate the doctrine of ex turpi causa non oritur actio or merely limit its use to those situations where public policy might require.  If the substance of the ex turpi causa doctrine is continued, albeit under different test, no important change has occurred.  My second concern is with the proposal that judges have the power to deny a person the right to recover in tort on the basis that no duty of care was owed to him or her because of his or her illegal conduct.  This latter concern is heightened by the absence of clear guidance as to when judges could exercise this draconian power and upon what grounds.  I fear that unless placed upon a firm doctrinal foundation and made subject to clear limits, this general power to invalidate actions on grounds of public policy might prove more problematic than has the troubled doctrine of ex turpi causa non oritur actio.  We would be trading one label for another without coming to grips with the fundamental problem.  Whether we describe the principle under which judges are allowed to deny recovery to a plaintiff by an old‑fashioned Latin name or by the currently fashionable concept of "public policy", the underlying problem remains the same:  under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled.

 

                   My own view is that courts should be allowed to bar recovery in tort on the ground of the plaintiff's immoral or illegal conduct only in very limited circumstances.  The basis of this power, as I see it, lies in duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue.  This concern is in issue where a damage award in a civil suit would, in effect, allow a person to profit from illegal or wrongful conduct, or would permit an evasion or rebate of a penalty prescribed by the criminal law.  The idea common to these instances is that the law refuses to give by its right hand what it takes away by its left hand.  It follows from this that, as a general rule, the ex turpi causa principle will not operate in tort to deny damages for personal injury, since tort suits will generally be based on a claim for compensation, and will not seek damages as profit for illegal or immoral acts.  As to the form the power should take, I see little utility and considerable difficulty in saying that the issue must be dealt with as part of the duty of care.  Finally, I see no harm in using the traditional label of ex turpi causa non oritur actio, so long as the conditions that govern its use are made clear.

 

                   These conclusions arise from a consideration of the historical uses of the power to deny recovery on the ground of immoral or illegal conduct and the doctrinal considerations which underlie that power.  I will first examine what role there is for a power in the courts to deny recovery in tort because of the claimant's immoral or illegal conduct.  My conclusion, as indicated, will be that while there is a role, it is limited.  After indicating the nature of that limit, I will address the manner in which the limiting rule is best introduced, whether as a defence to an established cause of action, or as an element negating a duty of care.

 

I.The Historical Use of the Power to Deny Recovery for Immoral or Illegal Conduct

 

(a)The Underlying Rational ‑‑ The Integrity of the Judicial Process

 

                   The power expressed in the maxim ex turpi causa non oritur actio finds its roots in the insistence of the courts that the judicial process not be used for abusive, illegal purposes.  Thus Professor Gibson, in "Comment:  Illegality of Plaintiff's Conduct as a Defence" (1969), 47 Can. Bar Rev. 89, at p. 89, writes:

 

Few would quarrel with the proposition that a man who murders his wealthy aunt should not be allowed to receive the proceeds of her life insurance as beneficiary, or that two robbers who disagree over the division of the spoils would not be allowed to settle their dispute in a court of law.  It was to deal with flagrant abuses like these that English courts developed the principle expressed in the maxim:  ex turpi causa non oritur actio ‑‑ no right of action arises from a base cause.  [Emphasis added.]

 

                   The use of the doctrine of ex turpi causa to prevent abuse and misuse of the judicial process is well established in contract law and insurance law, where it provokes little controversy.  The same cannot be said for tort.  This is the first occasion that this Court has been invited to pronounce definitively on the proper role of the ex turpi causa principle in tort.  Looking back on the jurisprudence, the best that can be said is that, as applied in tort, the ex turpi causa principle, in both Canada and elsewhere, has had a chequered history.  The courts of both  Australia and the United Kingdom have denied the availability of the doctrine in the tort context:  Smith v. Jenkins (1970), 119 C.L.R. 397 (Aust. H.C.), at p. 414, Lane v. Holloway, [1967] 3 All E.R. 129 (C.A.), at p. 131.  However, the present position in these jurisdictions appears to be that the doctrine has a role, although one limited by the court's refusal, on the grounds of policy, to establish a standard of care in respect of certain illegal or immoral activities:  Gala v. Preston (1991), 172 C.L.R. 243 (Aust. H.C.), at pp. 249-50; Pitts v. Hunt, [1990] 3 All E.R. 344 (C.A.), at pp. 355‑56, 358 and 365.  Within Canada, the situation is not significantly different.  Appeal courts in Alberta and Manitoba have accepted that the doctrine can be applied in the tort context:  Joubert v. Toronto General Trusts Corp. (1955), 15 W.W.R. 654 (Man. C.A.), Rondos v. Wawrin (1968), 64 W.W.R. 690 (Man. C.A.), and Tallow v. Tailfeathers, [1973] 6 W.W.R. 732 (Alta. C.A.).  The Nova Scotia Court of Appeal has disagreed:  Foster v. Morton (1956), 4 D.L.R. (2d) 269, at p. 281.  The British Columbia Court of Appeal has reached inconsistent decisions:  Mack v. Enns (1983), 44 B.C.L.R. 145, and Betts v. Sanderson Estate (1988), 31 B.C.L.R. (2d) 1, deny the application of the doctrine in tort; the judgment of the Appeal Court in the case at bar says that doctrine applies, and that earlier judgments to the contrary are incorrect.

 

                   Academic opinion is generally critical of the maxim's use in tort, particularly where it is used to prevent recovery of compensatory damages for personal injury:  see Bruce MacDougall, "Ex Turpi Causa:  Should a Defence Arise from a Base Cause?" (1991), 55 Sask. L. Rev. 1; Glanville L. Williams, Joint Torts and Contributory Negligence (1951); D. Gibson, supra.  Other commentators, while concerned that the courts have applied the doctrine in cases where it is not justified, concede that in some circumstances its application in tort may be appropriate:  Ernest J. Weinrib, "Illegality as a Tort Defence" (1976), 26 U.T.L.J. 28, G. H. L. Fridman, "The Wrongdoing Plaintiff" (1972), 18 McGill L.J. 275.

 

                   I propose to examine those cases where it is generally conceded that the doctrine may properly apply, with a view to determining whether a unifying concern or theme, sufficient to support the preservation of the maxim, can be identified. 

 

                   One situation in which there seems to be a clear role for the doctrine is the case where to allow the plaintiff's tort claim would be to permit the plaintiff to profit from his or her wrong.  It is important at the outset to define what is meant by profit.  As the cases illustrate, what is meant is profit in the narrow sense of a direct pecuniary reward for an act of wrongdoing.  Compensation for something other than wrongdoing, such as for personal injury, would not amount to profit in this sense.  An instance is the situation where one wrongdoer claims in tort against another for financial loss arising from a joint illegal venture.  Such a situation was considered by this Court in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452.  In issue was an alleged tort of the conspiracy to injure.  The respondent, maintaining that it was a business competitor of the appellants, argued that its bankruptcy had been caused by the illegal combines activity of the appellants.  Writing for the Court, Estey J. found that the tort of conspiracy was not made out.  He went on, however, to consider whether the respondent might be barred from claiming against the appellants on the ground that the respondent had also participated in the illegality in issue.  In rejecting this argument, Estey J. held that the damages suffered by the respondent were not linked to the illegality participated in.  But he accepted that, had the causal requirement been satisfied and the alleged tort made out, the respondent might have been barred from recovering, on the grounds that recovery would permit it to profit from its illegal act.

 

                   The reasoning at work in Canada Cement LaFarge is, as Cory J. notes, precisely the same as that underlying the application of the ex turpi causa doctrine in contract:  the court will not assist a wrongdoer in profiting from an illegal scheme or act.  As Estey J. stated at p. 477:

 

The benefit falling to the respondent was the opportunity to be the sole supplier of lightweight aggregate to the combine.  If the damages which have been suffered by the respondent flowed from its involvement in the illegal combine or from the contracts entered into between the respondent and the appellants affording the opportunity to the respondent to participate in the combine, then these doctrines [of ex turpi causa non oritur actio and of in pari delicto potior est conditio possidentis] prevent the respondent's recovery.  [Emphasis added.]

 

                   Cory J. suggests that the defence of volenti non fit injuria better characterizes the rationale underlying this conclusion.  I respectfully disagree.  The defence of volenti is available only if it can be established that the plaintiff, with knowledge (objectively determined) of the risk, freely accepted it:  Dube v. Labar, [1986] 1 S.C.R. 649, and Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186.  It is narrowly applied:  Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322, Lehnert v. Stein, [1963] S.C.R. 38, and Sundance, supra.  Cory J., at p. 000, says volenti could always be established in such a case, regardless of the particular circumstances in issue, simply as a matter of judicial inference from the fact of an illegal bargain.  I am not so confident.  It is not clear that it can be said of a contract, even one found to be illegal, that one party knowingly accepted the risks of the other party's breach.  Moreover, if courts were to find volenti on the basis of judicial inference from the fact of an illegal bargain, the result would be a judicial doctrine that whenever an illegal bargain is established, there can be no claim in tort.  Whether one describes this result by the maxim of volenti or by the maxim of ex turpi causa is immaterial.  These considerations, coupled with the fact that this Court and others have referred to this as an instance where the ex turpi causa rule applies, suggest to me that it is best to continue to do so.

 

                   Another example of a case in which the courts would not permit a wrongdoer to use a tort action to profit from the wrongdoing is where one bank robber sues another for fraud or negligent misrepresentation. If the action were brought in contract, it would clearly be defeated on the basis of ex turpi causa non oritur actio.  The fact that the disgruntled robber chooses to frame his or her action in tort should make no difference.

 

                   In some cases the courts may disallow a particular head of damages on the basis that to award that head of damages would be to permit the plaintiff to profit indirectly from his or her crime, in the sense of obtaining remuneration for it.  A claim for damages for personal injuries under the head of loss of future earnings, where the claimed earnings are based on an illegal occupation, will not be allowed because it would amount to the court's rewarding the plaintiff for an illegal activity, permitting the plaintiff to profit from his or her wrong.  Courts in other jurisdictions have refused to make such awards in cases of claims by a burglar, a bookies' clerk, a vendor of illegal patent medicines, a fisherman using an unlawful net, and an operator of an illegal gambling den:  Burns v. Edman, [1970] 1 All E.R. 886 (Q.B.), Meadows v. Ferguson, [1961] V.R. 594 (S.C), Lewis v. Brannen, 65 S.E. 189 (Ga. C.A. 1909). Harper v. Grasser, 150 P. 1175 (Wash. S.C. 1915), and McNichols v. J. R. Simplot Co., 262 P.2d 1012 (Idaho S.C. 1953).

 

                   Another example of a case where a particular type of damage may violate the rule against profiting from wrongdoing, this time a little further removed from the contractual situation, is the case of exemplary damages awarded to a wrongdoer.  Because such damages are, by definition, not compensatory, their function (apart from punishing the defendant) would be to reward the wrongdoer for his or her crime.  As such, they would arguably constitute a case of enabling a wrongdoer to profit from crime.  Professor Weinrib, supra, at p. 41, refers to the American case of Katco v. Briney, 183 N.W.2d 657 (Iowa S.C. 1971), as an instance where such a claim was successful.  The plaintiff was injured by a spring‑gun as he was attempting to break into a house and steal some objects from it.  He sued for battery.  The jury awarded him $10,000 for punitive damages.  While the verdict was affirmed, Weinrib doubts that it would be followed in the commonwealth, particularly in view of the decision in the English Court of Appeal which accepted the argument that wrongful conduct (provocation) could reduce exemplary or punitive damages, but not compensatory damages:  Lane v. Holloway, supra.  I am persuaded by this argument.

 

                   The narrow principle illustrated by the foregoing examples of accepted application of the maxim of ex turpi causa non oritur actio in tort, is that a plaintiff will not be allowed to profit from his or her wrongdoing.  This explanation, while accurate as far as it goes,  may not, however, explain fully why courts have rejected claims in these cases.  Indeed, it may have the undesirable effect of tempting judges to focus on the issue of whether the plaintiff is "getting something" out of the tort, thus carrying the maxim into the area of compensatory damages where its use has proved so controversial, and has defeated just claims for compensation.  A more satisfactory explanation for these cases, I would venture, is that to allow recovery in these cases would be to allow recovery for what is illegal.  It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal.  It would, in short, introduce an inconsistency in the law.  It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which ‑‑ contract, tort, the criminal law ‑‑ must be in essential harmony.  For the courts to punish conduct with the one hand while rewarding it with the other, would be to "create an intolerable fissure in the law's conceptually seamless web":  Weinrib, supra, at p. 42.   We thus see that the concern, put at its most fundamental, is with the integrity of the legal system.

 

                   At this point it may be useful to consider in more depth the distinction between compensatory damages and damages which amount to profit from an illegal act.  The foregoing comments indicate that compensatory damages are not properly awarded as compensation for an illegal act, but only as compensation for personal injury.  Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred.  No part of the award which compensates injury can be said to be the profit of, or the windfall from, an illegal act.  It may be that had the plaintiff not committed an illegal act, like driving while impaired as in this case, he or she would never have suffered injury.  But the same point could be made in the context of every tort:  had the injured party not first done X or Y, he or she would not have been subject to the negligence of the tortfeasor.  The question that the law asks is whether an injured party suffered a recognized sort of injury, at the hands of someone who owed this party a duty of care, and who caused reasonably foreseeable damage by falling below the standard of care that the law imposes.  The plaintiff's behaviour will be relevant to the extent to which it can be shown, according to the established principles just referred to, that the plaintiff contributed to, or voluntarily accepted, the injury he or she suffered; his or her  behaviour will be otherwise irrelevant, unless the plaintiff's claim falls into that narrow group of excluded claims referred to above.  None of the foregoing propositions changes the fact that such compensation as a plaintiff properly recovers arises not from the character of his or her conduct, illegal or otherwise, but from the damage caused to him or her by the negligent act of the defendant.  He or she gets only the value of, or a substitute for, the injuries he or she has suffered by the fault of another.  He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct.

 

                   There may be cases where the principle of ex turpi causa should be invoked to prevent tort recovery which do not fall under the category of profit from illegality.  Professor Weinrib, supra, suggests that the defence of ex turpi causa may properly be invoked to prevent the "stultification of the criminal law" or "evasion of the consequences of the criminal law":  at pp. 52-53.  He gives the example of a burglar who, due to his partner's negligence, is caught and required to pay a fine.  Such a person, he suggests, should be barred from recovering damages for the fine from his partner.  Weinrib states that this result could be justified either by saying that one criminal owes no duty to another, or by recourse to the maxim ex turpi causa non oritur actio.  He adds, at p. 51:

 

                   However the conclusion is expressed, few would quarrel with it. B has deliberately chosen to violate the criminal law by attempting the burglary, and he has been visited with the consequences of that choice.  Conviction and sentencing by a criminal court is the law's method of ascribing to B the responsibility for his action.  The assessment of the penalty is largely, though not exclusively, a reaction to the criminal's own process of decision, and it reflects both the blameworthiness of the criminal in choosing to act as he did and the amount of admonishment sufficient to influence him in his future choices. It would make no sense at all if B were able to utilize tort law's mechanism of shifting losses in order to avoid the very consequences which criminal law has imposed upon him for his intentionally culpable conduct.  [Emphasis added.]

 

                   See also the similar facts which arose for consideration in Colburn v. Patmore (1834), 1 C.M. & R. 73, 149 E.R. 999 (Exch.)

 

                   While this example cannot be explained in terms of profit, since the claim is one of compensation for a fine incurred, it does accord with what I have called the more fundamental rationale for the defence of ex turpi causa, that based on the need to maintain internal consistency in the law, in the interest of promoting the integrity of the justice system.  Again we have a situation where permitting recovery in tort would amount to the law's giving with one hand what it takes away with the other.  Again it can be said that to permit the claim would be to create "an intolerable fissure in the law's conceptually seamless web."

 

                   There is weighty authority which supports the proposition that the preservation of the integrity of the justice system is the true rationale for the defence of illegality associated with the maxim ex turpi causa non oritur actio.  My colleague Justice Sopinka put the defence on this basis in Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p. 316:

 

My colleague refers to the observation of Estey J. that the application of this maxim to defeat a tort action has been rare.  Its use has been much less frequent in recent times.  The courts have taken a less rigid view of its purpose.  Emphasis is now placed on preserving the administration of justice from the taint that would result from the approval of a transaction that a court ought not to countenance.

 

                   Cory J. does not deny the importance of the integrity of the justice system as a rationale for the defence.  He does, however, argue at p. 000 that such a rationale may be too broad, since it is difficult to distinguish in many cases between what Ford, infra, terms "public and merely judicial outrage", and he adopts the warnings of Ford that "moral indignation must not be mistaken for public policy".  On the other hand, he points out that tort awards have been properly made in many cases where the plaintiff's conduct might have offended a judge.  It seems to me that the narrow form of the rationale which I have developed, premised on the need to prevent internal inconsistency in the law, does not attract this criticism.  It is not the judge's outrage but a concern for the coherence of the legal system which he or she administers which is operative.

 

                   I add a comment on the criteria of "joint criminal activity", which has sometimes been invoked as a condition of the application of ex turpi causa as a defence:  see Tomlinson v. Harrison, [1972] 1 O.R. 670, and Tallow v. Tailfeathers, supra.  Other courts have refused to adopt this requirement, arguing against its anomalous and "paradoxical result":  see, for example, the comments of Lambert J.A. in Betts v. Sanderson Estate, supra, at p. 12.  When the ex turpi causa rule is understood to be based on the need to maintain the integrity of our system of law, it becomes clear that there is no reason to insist that both the plaintiff and the defendant have been involved in the criminal or immoral activity in order that the ex turpi causa maxim operate.

 

                   I conclude that there is a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system.  The power is a limited one.  Its use is justified where allowing the plaintiff's claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law.  Its use is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant.  I turn now to the question of the form in which this principle should be cast.

 

(b)How the Goal of Protecting the Integrity of the Judicial System is Best Accomplished

 

                   My colleague Cory J. suggests that the defence of ex turpi causa non oritur actio should be eliminated.  In its place, he suggests that the courts should be granted the power to disallow a plaintiff's claim, on account of the plaintiff's wrongful conduct, by finding that no duty of care arises.  This power is to be exercised under the second branch of the test articulated in Anns v. Merton London Borough Council, [1978] A.C. 728, as approved and reformulated in this Court in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2.  On this view, the plaintiff's illegal or immoral conduct may constitute a policy reason for holding that the defendant owed the plaintiff no duty of care.

 

                   A variant of this approach has been adopted in Australia,  Gala v. Preston, supra, and at pp. 251-55, and by the English Court of Appeal, Pitts v. Hunt, supra, at pp. 355-56, 358.  This view holds that no duty should be postulated where it is either impossible or improper for the courts to establish a standard of care to govern the conduct in issue.  It is recognized that there is no a priori reason in law why a duty cannot subsist between criminals or wrongdoers.  However, some cases raise such "special and exceptional" circumstances that a court cannot, or cannot in good conscience, enquire into the standard of care needed to ground the duty of care in a particular situation.  Unlike the view espoused by Cory J., the very possibility of a duty arising is not denied; rather the court declines to enter into the question of whether a duty exists.

 

                   With great respect, I am not sure that much is gained by replacing the defence of ex turpi causa non oritur actio with a judicial discretion to negate, or to refuse to consider, the duty of care.  Shifting the analysis to the issue of duty provides no new insight into the fundamental question of when the courts should be entitled to deny recovery in tort to a plaintiff on the ground of the plaintiff's immoral or illegal conduct.  Moreover, it introduces a series of new problems.  In the end I fear that it would prove more problematic than has the defence of ex turpi causa non oritur actio.

 

                   I begin by noting that the duty approach, as expressed by Cory J., does not fully capture what we mean when we invoke the principle of ex turpi causa.  If what I have said above is correct, the ex turpi causa principle operates most naturally as a defence because its purpose is to frustrate what would be, had ex turpi causa no role, a complete cause of action.  Liability for tort arises out of the relationship between the alleged tortfeasor and the injured claimant.  The power of the court to deny recovery where it would undermine the coherence of the legal system, on the other hand, represents concerns independent of this relationship.  It is important, if only for the purposes of conceptual clarity, that ex turpi causa operate, on those rare occasions where its operation is justified, as a defence to frustrate tort claims which could otherwise be fully made out, because this best expresses what is in fact decided.  The courts make it clear that the defendant has acted wrongly in negligently causing harm.  They also make it clear that responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible.

 

                   Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), the source of our modern law of negligence and of the concept of duty upon which it is founded, requires that a person exercise reasonable care toward all his or her neighbours.  It does not say that the duty is owed only to neighbours who have acted morally and legally.  Tort, unlike equity which requires that the plaintiff come with clean hands, does not require a plaintiff to have a certain moral character in order to bring an action before the court.  The duty of care is owed to all persons who may reasonably be foreseen to be injured by the negligent conduct.

 

                   Policy concerns unrelated to the legal rules which govern the relationship between the parties to an action have not generally been considered in determining whether a duty of care lies.  This follows from the fact that the justice which tort law seeks to accomplish is justice between the parties to the particular action; the court acts at the instance of the wronged party to rectify the damage caused by a particular defendant:  See Ernest J. Weinrib, "The Special Morality of Tort Law" (1989), 34 McGill L.J. 403, at p. 408.

 

                   The relationship between plaintiff and defendant which gives rise to their respective entitlement and liability arises from a duty predicated on foreseeable consequences of harm.  Since this is the concern, the legality or morality of the plaintiff's conduct is an extrinsic consideration.  In the rare cases where concerns for the administration of justice require that the extrinsic consideration of the character of the plaintiff's conduct be considered, it seems to me that this is better done by way of defence than by distorting the notion of the duty of care owed by the defendant to the plaintiff.

 

                   It can be argued that the Australian rule avoids these doctrinal problems by recognizing that, while a duty of care might otherwise lie, it cannot be raised because the parties, by their conduct, have made it impossible or improper to consider the claim.  In other words, that a duty could arise from the relationship between the parties is not denied -- plaintiff is simply barred from relying on it.  Thus the Australian High Court formally avoids conflict with the principle it has articulated in earlier judgments: that no person becomes a caput lupinum, or an outlaw, in the eyes of the civil law merely because that person was engaged in some unlawful act: Henwood v. Municipal Tramways Trust (1938), 60 C.L.R. 438, at p. 466.  On analysis, however, this notion that the courts cannot, in certain circumstances, consider whether a duty of care arises has the practical effect of denying a duty which would otherwise arise, and hence, in substance, of violating the very principle against making certain parties outlaws to which the court seeks to adhere.

 

                   Beyond this, a more practical objection can be raised:  why is it necessary to take the rather novel step of positing judicial "inability" to investigate the appropriate standard of care, instead of using the concept by which the law has traditionally recognized considerations that prevent otherwise valid claims from succeeding, that is, the concept of a defence to the action?

 

                   The law of tort recognizes many types of defence.  Some go to the relationship between the parties; for example, the defence of volenti non fit injuria, the plaintiff's assumption of risk.  But others go to matters unrelated to that relationship.  Limitation periods, for example, are raised by way of defence.  I see no reason to treat ex turpi causa differently.  Like a lapsed limitation period, it represents a reason why a cause of action, which might otherwise be fully made out,  should not succeed.

 

                   The debate is not purely academic.  There are practical reasons for finding that it is proper to view ex turpi causa as a defence.  I mention three.  If the ex turpi causa principle arises in the course of the investigation into whether there exists a duty of care, the onus will lie on the plaintiff to show why he or she should not be disentitled by way of his or her conduct.  It is well established that the plaintiff bears the onus of establishing a valid cause of action; if not, the plaintiff faces non-suit.  Thus a plaintiff whose conduct is alleged to be immoral or illegal might be bound to disprove the illegality or immorality in order to proceed with his or her action and avoid non-suit.  On the other hand, if the matter is left as a defence, the onus rests on the defendant.  As I have indicated, the power to preclude recovery on the basis of the plaintiff's immoral or illegal conduct is an exceptional power, operating in derogation of the general principles of tort applicable to all persons in our society.  As such, it seems to me appropriate that the onus of establishing the exceptional circumstances should rest with the defendant.  The plaintiff should not be required to disprove the existence and relevance of his or her illegal or immoral conduct; rather it should be for the defendant to establish it.

 

                   Second, the duty of care approach is an all or nothing approach, and cannot be applied selectively to discreet heads of damages.  As discussed above, cases may arise in which a particular damage claim, e.g. for exemplary damages, or for damages for loss of future earnings, might be seen as a claim to profit from an illegal act.  Another damage claim in the same action, e.g., one for compensation for personal injuries, could not be so regarded.  If the ex turpi causa principle operates as a defence it is possible to distinguish between such claims.  If it operates as a factor negating a duty of care, on the other hand, it is not possible to treat an action in the selective manner that justice seems to require.

 

                   Finally, consideration of illegal or immoral conduct at the stage of determining the duty of care raises procedural problems.  A plaintiff may sue in both tort and contract.  If the approach suggested by Cory J. is adopted, in the contract claim, the plaintiff's illegal or immoral conduct would be raised as a defence to the claim; in the tort claim, the same conduct would be an element of the enquiry into the duty of care.  In other words, in contract the onus would be on the defendant to prove the relevance of the plaintiff's conduct; in tort, the onus would be on the plaintiff to disprove the relevance of the conduct.  The resulting confusion would unnecessarily complicate the task of the trial judge and the parties.

 

                   These considerations lead me to conclude that the important but limited power of the court to prevent tort recovery on the ground of the plaintiff's illegal or immoral conduct is better viewed as a defence than as a factor going to the existence of a duty of care.

 

II.Application to these Facts

 

                   The doctrine of ex turpi causa non oritur actio properly applies in tort where it will be necessary to invoke the doctrine in order to maintain the internal consistency of the law.  Most commonly, this concern will arise where a given plaintiff genuinely seeks to profit from his or her illegal conduct, or where the claimed compensation would amount to an evasion of a criminal sanction.  This appellant need not be denied recovery since these grounds are not relevant to his claim.  The compensation sought by this appellant is for injuries received.  This compensation can be reduced to the extent of the appellant's contributory negligence, but cannot be wholly denied by reason of his disreputable or criminal conduct.

 

III.Disposition

 

                   I share the views of my colleague Cory J. on the issue of the appellant's contributory negligence, and the apportionment of liability.  I would dispose of the case as he proposes.

 

//Sopinka J.//

 

                   The following are the reasons delivered by

 

                   Sopinka J. (dissenting) -- I have had the opportunity of reading the reasons prepared by my colleagues Justices Cory and McLachlin, and while I agree that the defence of ex turpi causa does not apply, in my opinion, the appeal and the action should be dismissed on the ground that the plaintiff failed to establish that the defendant owed a duty to the plaintiff to take care in the circumstances.

 

                   There are two approaches to the development of new categories of liability in the law of negligence.  There is the more traditional approach under which new categories are created incrementally by extending liability in a particular case by analogy to existing categories.  The other approach, which was enunciated by Lord Wilberforce in Anns v. Merton London Borough Council, [1978] A.C. 728, involves two steps.  The first step recognizes a broad prima facie duty of care based on foreseeability of harm.  This is followed by the application of a second step to determine whether there is a sound policy reason why the duty should be negated or limited.  The traditional approach was reasserted by Brennan J. in Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1, and adopted by the House of Lords in Caparo Industries p.l.c. v. Dickman, [1990] 1 All E.R. 568, at p. 574:

 

We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman . . . at 43-44, where he said:

 

                   `It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed".'

 

                   This approach was further re-affirmed by the House of Lords in Murphy v. Brentwood District Council, [1991] 1 A.C. 398, at p. 461.

 

                   Our Court has relied on both approaches.  The Anns approach has been applied in dealing with the liability of public authorities while the traditional approach has been favoured when dealing with new categories of liability relating to private litigants.  Accordingly, Anns was applied in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2, and in Just v. British Columbia, [1989] 2 S.C.R. 1228, but the traditional approach was followed in Jordan House Ltd. v. Menow, [1974] S.C.R. 239, and Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186.

 

                   In my opinion, on either approach no duty of care rested on the defendant in this case.  I will examine this question, first on the basis of the traditional approach and then on the basis of the Anns approach.

 

                   The application of the traditional approach involves an examination of the principles in Jordan House and Sundance in order to determine whether they can be extended to find liability in this case.  In those cases as well as this liability was sought to be based on a failure to act as opposed to active conduct.  In other words, it was alleged that the defendant failed to do something for the care and safety of the plaintiff which the defendant ought to have done.  In these circumstances the common law required special circumstances which created a duty to act.  The good Samaritan deserves the world's accolades because he had no legal duty to act and would not have been civilly liable if he, too, had crossed over to the other side as did the Levite and the priest.

 

                   In Jordan House, the Court considered the liability of the owner of a public hotel whose employees ejected a patron to whom they had served large quantities of beer before turning him loose onto a busy highway knowing that he was incapable of taking care for his own safety.  Laskin J., as he then was, who wrote the judgment for the majority (Ritchie J., Judson J. concurring, wrote a separate judgment agreeing in the result) stated, at pp. 247-48: 

 

If the hotel's only involvement was the supplying of the beer consumed by Menow, it would be difficult to support the imposition of common law liability upon it for injuries suffered by Menow after being shown the door of the hotel and after leaving the hotel.

 

The special circumstances creating the duty were the existence of an invitor-invitee relationship and the degree of control exercised by the defendant.  At p. 248, Laskin J. continued:

 

The hotel, however, was not in the position of persons in general who see an intoxicated person who appears to be unable to control his steps.  It was in an invitor-invitee relationship with Menow as one of its patrons, and it was aware, through its employees, of his intoxicated condition, a condition which, on the findings of the trial judge, it fed in violation of applicable liquor licence and liquor control legislation.

 

                   Laskin J. found that imposing liability was analogous to the finding of liability in Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310, a case in which a railway company was found to have breached a duty of care to a passenger when it put him off the train at an unlighted station due to his unruly and drunken behaviour.

 

                   In Sundance, Wilson J. found it a logical and inevitable extension of Dunn and Jordan House to saddle a ski operator with liability when a drunken patron was permitted to engage in a risky sport carried on at the ski resort by the defendant operator.  At p. 1198, she states:

 

                   The jurisprudence in this area seems to me to make this conclusion inevitable.  When a railway company removes a drunken passenger from one of its trains it owes a duty of care to this passenger to take reasonable steps to see that the passenger does not come to harm (Dunn v. Dominion Atlantic Railway Co. . . .).  Likewise, when a hotel ejects a drunken patron, it owes a duty of care to the patron to take certain steps to ensure that the patron arrives home safely (Jordan House).  It would seem a fortiori that when a ski resort established a competition in a highly dangerous sport and runs the competition for profit, it owes a duty of care towards visibly intoxicated participants.

 

                   I do not find that liability in this case is either analogous nor a logical extension of those cases.  In each of the above the defendant derived a commercial advantage from the presence of the plaintiff on its premises.  In Jordan House and Sundance, there was an invitor-invitee relationship.  In Dunn, the relationship was that of a common carrier to a passenger.  In each of these relationships there was a positive duty to take reasonable measures for the safety of persons who were invited to use the premises or facilities.  When, as a result of an excessive use of some of the facilities, the patron becomes an undesirable invitee, it would seem to follow as a logical extension of that duty that the owner cannot simply eject the invitee especially when the latter has become more vulnerable to injury as a result of the commercial use of the owner's facilities.  In the case of Sundance, it was the dangerous activity on the owner's premises which injured the plaintiff who had become unfit to participate by excessive drinking.

 

                   The situation here is quite different.  No relationship of invitor-invitee nor anything similar existed.  The defendant derived no commercial advantage from the activities of the plaintiff.  Both were equally intoxicated and neither could be said to be more in control of the situation than the other.  In my view, the special circumstances which called for the creation of a positive duty of care in the cases which I have reviewed are totally absent here.  To extend liability would not amount to the incremental extension of liability but rather a quantum leap.

 

                   I arrive at the same conclusion employing the two-step Anns approach.  It was formulated by Lord Wilberforce at pp. 751-52: 

 

                   Through the trilogy of cases in this House -- Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, and Dorset Yacht Co. Ltd v. Home Office [1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.  Rather the question has to be approached in two stages.  First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter -- in which case a prima facie duty of care arises.  Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty of the class of person to whom it is owed or the damages to which a breach of it may give rise:  see Dorset Yacht case [1970] A.C. 1004, per Lord Reid at p. 1027.

 

                   The second step is necessitated by the fact that if foreseeability itself were sufficient to ground liability, the net would be cast too wide.  In the failure to act cases, for example, liability would attach when there is no duty to act.  Accordingly, if the defendant saw a stranger about to walk off a cliff of which the former was aware but which was unknown to the stranger, there would be liability for failure to warn.  This is but one example in which no liability exists notwithstanding foreseeability of harm.  No unifying principle has been developed for the application of the second step.  Moreover, in view of its purpose as a policy limitation on the broad reach of the prima facie duty of care created by the first step, it may be neither possible nor desirable to attempt to reduce this step to one unifying principle. 

 

                   Some principles have, however, been developed which constitute limitations on the duty of care.  The ex turpi causa and volenti non fit injuria doctrines are examples.  Both have been supported, at least in part, by reference to the policy that in the circumstances calling for their application, the plaintiff would have no reasonable expectation that the defendant would have an obligation to exercise care for the plaintiff's safety. 

 

                   The policy of reasonable expectation has been applied as a factor in the broad application of the ex turpi causa principle.  For example, in Gala v. Preston (1991), 172 C.L.R. 243, the High Court of Australia dealt with a claim for damages for personal injuries by one of two young persons involved in a serious accident while joy-riding in a stolen car. The majority summed up the rationale for the application of ex turpi causa in the following passage, at p. 254:

 

In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care.

 

                   While the conduct of the parties is relevant in assessing the reasonable expectation of the parties, the fact that the conduct is punishable as a criminal offence bears little or no relation to these expectations.  In my opinion, reasonable expectation is not the proper basis for denying recovery by reason of participating in criminal conduct.  The true basis for denying recovery in such circumstances is the court's reluctance to lend its assistance to persons involved in serious criminal activity when to do so would reflect adversely on the administration of justice.  This explanation of ex turpi causa was adopted by me in Norberg v. Wynrib, [1992] 2 S.C.R. 226, as pointed out in the reasons of Justice Gonthier herein.  I would apply the same reasoning in this case and on that basis conclude that the administration of justice would suffer no disrepute in the eyes of the public if the Court lends its assistance to the appellant.

 

                   Although the absence of reasonable expectations is not the appropriate foundation for the application of the principles of ex turpi causa, this factor is otherwise a material policy consideration relating to the existence of a duty of care.  Apart from the influence of this factor in leading some courts to extend the reach of ex turpi causa, it lies at the root of the defence of volenti non fit injuria.

 

                   The volenti defence is another example of the application of policy to negate a duty of care which would otherwise arise.  It has been seriously circumscribed by reason of statutory apportionment provisions.  It now only applies if the plaintiff has expressly or impliedly assumed both the physical and the legal risk.  See Sundance, supra, at p. 1202.  Where this occurs it is obvious that the plaintiff cannot have any expectation of any duty of care on the part of the defendant which can form the basis of an action.  This does not, however, exhaust the operation of the policy not to find a duty of care in circumstances in which neither party would have any reasonable expectation of it.  There will be other circumstances in which the policy will and should be applied.  This does not mean that the limitations placed on the volenti defence are being eroded by reintroducing liability through the back door.  A passenger who consents to be driven by an obviously intoxicated driver can still have a reasonable expectation of care on the part of the driver.  The policy would not be applied to rule out liability in these circumstances.  The passenger is usually found to be contributorily negligent, reflecting the fact that having those expectations showed a lack of care for his or her own safety.  But the circumstances out of which an action arises may be such that, apart from consenting to an activity which can still be carried out with reasonable care, the plaintiff cannot have any reasonable expectation of receiving care nor the defendant of providing it.

 

                   What emerges from this discussion of the two examples to which I have referred, namely ex turpi causa and volenti non fit injuria, is that there exists a definite policy not to recognize a duty of care in circumstances in which none could be expected.  Criminal conduct can be the basis for negating a duty of care not because it is criminal but because it can be inferred from the conduct itself, apart from its criminal character, that no reasonable expectation of care existed on the part of the person injured.  Consent to a risk of harm such as to attract the defence of volenti is another example of this policy.  It is an example in which the absence of an expectation of care is explicitly demonstrated by a consent to the very conduct out of which the duty would otherwise arise.  Consent is but one example as to how the absence of reasonable expectation can be established.  The absence of reasonable expectation can also be established on the basis of the relationship of the parties and their conduct in all the circumstances of the case.

 

                   In this case, the breach of duty alleged is that the defendant allowed the plaintiff to drive when the plaintiff asked the defendant to do so.  It strikes me as extraordinary to suggest that when making the request the plaintiff could at the same time have had any expectation that the defendant owed the plaintiff a duty to take care for his safety by refusing the request.  This is not a case of the plaintiff's being guilty of contributory negligence in having such an expectation, but rather, it is a case in which the plaintiff had no such expectation.  It is, therefore, not a case for apportionment of liability because no liability arises.

 

                   I would dismiss the appeal with costs.

 

//Gonthier J.//

 

                   The following are the reasons delivered by

 

                   Gonthier J. -- I have had the benefit of the reasons of Justices Cory and McLachlin.  I concur in their disposition of the case and agree for the reasons which they give that on the facts of this case the respondent had a duty of care and a defence of ex turpi causa was not open to him, be it viewed as such or as a matter of public policy.  I also share their reasons inasmuch as they support a restricted and more carefully circumscribed application of the defence of ex turpi causa in tort cases.  Even though it has given rise to some confusion in the past, its principle, properly understood in the light of the examples of its proper application given by my colleagues, and their comments, is in my view valid and has an important role to play in the limited circumstances to which it applies.  It reflects one facet of public policy which is best captured in the statement of its purpose adopted by Justice Sopinka in his reasons in Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p. 316, from those of Taylor J. in Mack v. Enns (1981), 30 B.C.L.R. 337 (S.C.), at p. 345:

 

The purpose of the rule today must be to defend the integrity of the legal system, and the repute in which the courts ought to be held by law-abiding members of the community.

 

                   While this statement is broad in potential scope, it is so by reason of the nature of the concept which it expresses.  I view my colleagues' comments as helpful guidelines for the application of the principle but, in my opinion, it is not appropriate to define exhaustively a priori the circumstances or particular grounds for its application.

 

//Cory J.//

 

                   The following are the reasons delivered by

 

                   Cory J. -- Three questions must be answered in order to resolve this appeal.  First, does a person who has the care and control of a motor vehicle owe a duty of care to another who is known to be impaired to deny that impaired person permission to drive the vehicle?  Secondly, does the so-called principle of law, known by the maxim ex turpi causa non oritur actio, provide the respondent with a complete defence to this action?  Finally, did the trial judge err in his apportionment of liability in this case?

 

Factual Background

 

                   The respondent Hebert owned what he described as a souped-up muscle car.  He had driven it at speeds in excess of 200 km/hr.  No doubt it exuded a compelling seductive charm that would attract young men of all ages.  On a Friday evening, in July of 1986, the respondent drove his car to a party.  The appellant Hall, who was known to the respondent, was also invited.  He walked over from his residence to join the festivities and had every intention of walking home when the party was over.

 

                   The respondent Hebert drove his girlfriend home about midnight.  She testified that he did not appear to be drunk at that time.  Hebert then returned to the party, with a case of beer in the trunk of his car.  There is no doubt that Hebert consumed several beers at the party.  He knew that the appellant had consumed at least eight or nine beers by the time the party was breaking up around 1:30 a.m.  In any event, the respondent invited the appellant to join him.  The two young men then drove to a baseball field.  There the respondent brought out six bottles of beer from the trunk of the car and shared these with the appellant.

 

                   When they had finished drinking the six bottles of beer, the respondent, with the appellant still as a passenger, drove to Graveyard Road.  This road is a gravel spur, which leads a few hundred feet up on an incline.  It was unlit and, more significantly, dropped off sharply on one side to a gravel pit.  The road was so rough that the car keys fell out of the ignition and the vehicle stalled.  The young men could not find the car keys.  The respondent determined that the car could only be started by "a rolling start".  To that end he backed the car part-way down the hill and turned it around so that it was facing downhill.  It was by then about 3:00 a.m.  At this point the appellant asked if he could drive the car and the respondent replied, "Sure, okay".

 

                   With the appellant driving the vehicle, the roll start was attempted.  The appellant perhaps over accelerated.  In any event he lost control.  The car left the road, went down the steep slope to the gravel pit and turned upside down.  The two young men were able to walk away from the accident and reached the home of an acquaintance, who described both of them as being drunk.  It was later discovered that the appellant had suffered significant head injuries.

 

                   At the time of the accident the respondent was aware that the appellant had consumed 11 or 12 bottles of beer, three of those within the last hour prior to the accident.  Despite this, he did not consider the appellant drunk.  However his criteria for determining whether a person was capable of driving his car was, to say the least, relaxed.  He considered a person capable of driving his car unless they were falling down drunk or seeing double.  Thus, despite his knowledge of the amount of beer consumed by the appellant, he did not consider him impaired for purposes of driving his car.  The respondent did not believe that the appellant had driven his car although the appellant said that he had on one other occasion.  Although both young men were used to driving on gravel roads, the respondent knew the Graveyard Road was dark, inclined and with an open gravel pit on one side.  The respondent knew that in roll-starting his souped‑up car on a gravel road it would be all too easy in the best of conditions to give the car too much gas so that it would surge ahead and be difficult to control.

 

The Courts Below

 

Trial Division

 

                   The trial judge held that although the appellant drove the respondent's car, the respondent could still be liable for negligence as he "had a primary obligation to remain sober enough to preserve his ability to drive or his ability to determine the [appellant's] or any other person's ability and competence to drive before delivering care and control of his car to him."  He found that the respondent was negligent in concluding that the appellant could drive and in permitting him to drive on the unlit difficult gravel road.

 

                   At trial the respondent raised the defence of ex turpi causa non oritur actio alleging that both parties were engaged in a criminal enterprise and as a result, that he could not be held liable.  The trial judge decided that the mere acceptance of a ride knowing that the driver was impaired did not constitute a common enterprise.  He found that the only joint enterprise of the parties was the consumption of alcohol in a public place contrary to the provincial liquor act.  That conduct he found was finished well before the appellant drove the vehicle.  He concluded that there was then no link between the illegality of drinking in a public place and the subsequent actions of the respondent which led to the accident.  Further, he expressed the view that a breach of the liquor control act was not misconduct of such a moral gravity that the court should decline to compensate the appellant.

 

                   When he apportioned the liability he found that the respondent was more responsible for the accident than the appellant and apportioned negligence with 75 percent attributable to the respondent and 25 percent to the appellant.

 

Court of Appeal (1991), 53 B.C.L.R. (2d) 20l

 

                   The Court of Appeal allowed the respondent's appeal.  The majority was of the view that the respondent owner did not owe a duty of care to the appellant and that accordingly, the appellant (at p. 206) "could not recover damages against him".

 

                   Gibbs J.A., for the majority, concluded that the principle of ex turpi causa non oritur actio was applicable and the action could be dismissed on that basis as well.  He wrote, at p. 210, that "until the Supreme Court of Canada rules otherwise there can be little doubt that the defence of ex turpi causa nor oritur actio is available here in this kind of action".  He went further and determined that the application of the principle did not depend upon a joint criminal enterprise; rather, the defence was available wherever the conduct of the plaintiff giving rise to the claim is so tainted with criminality or culpable immorality that, as a matter of public policy, the court will not assist him or her to recover damages.  He wrote at pp. 210-11:

 

Accordingly, to the extent that either of Funk v. Clapp [(1986), 35 B.C.L.R. (2d) 222] or Betts v. Sanderson Estate [(1988), 31 B.C.L.R. (2d) 1] leads to the conclusion that the defence is confined to cases of joint criminal enterprise or applies only in contracts, neither should any longer be accepted as good law in this province. . . .

 

                   Further, the statement in Funk v. Clapp at p. 233 that the doctrine of ex turpi causa no longer applies where there is legislation respecting contributory negligence that includes both "fault" or  "conduct" as well as "negligence" and citing with approval the decision Lewis v. Sayers, [1973] O.R. 591 . . . can no longer be considered to be an accurate statement of the law of this province.

 

                   In her minority reasons, Southin J.A. held that the principle ex turpi causa had no place in the law of tort.  However, she found that there was no duty of care owed by the respondent to the appellant in this case.  She wrote at p. 216:

 

                   I hold that a person who drives while impaired a motor vehicle belonging to another and thereby injures himself cannot recover damages from that other on the footing that that other person had a duty in the circumstances not to enable him to commit the crime whereby he injured himself.

 

Analysis

 

                   In order to determine what role, if any, the doctrine of ex turpi causa should play in tort cases, it is necessary to consider briefly the nature of a tort, its history and development.

 

The Essence and Aim of Tort Law

 

                   It is difficult to define the nature of a tort.  Indeed one of the greatest writers in the field, W. L. Prosser has expressed the opinion that it should not be defined.  Perhaps it is easiest to begin by saying what it is not.  A tort is not a crime.  Although criminal law and tort law grew from the same roots they are today quite distinct and different.  Criminal law is designed to provide security for the citizens of the state.  It attempts to define that conduct which society finds abhorrent and therefore necessary to control.  Those who commit crimes are prosecuted by the state and are subject to punishment which reflects the state's or society's abhorrence for the particular crime.

 

                   Nor is the law of torts contractual in its nature.  Contract law seeks to enforce the rights which arise out of an agreement whose parties have voluntarily agreed to be bound by its terms.  The law of contract seeks to enforce the terms of the agreement specifically or provide compensation for its breach.  Nor can torts fall under the title of quasi-contractual relief.  That remedy seeks to prevent unjust enrichment that might, for example, arise out of payment of money under mistake.

 

                   The law of tort covers a much wider field than does contract or quasi- contract.  It provides a means whereby compensation, usually in the form of damages, may be paid for injuries suffered by a party as a result of the wrongful conduct of others.  It may encompass damages for personal injury suffered, for example, in a motor vehicle accident or as a result of falling in dangerous premises.  It can cover damages occasioned to property.  It may include compensation for injury caused to the reputation of a business or a product.  It may provide damages for injury to honour in cases of defamation and libel.  A primary object of the law of tort is to provide compensation to persons who are injured as a result of the actions of others.  W. L. Prosser puts the aim of tort law this way in Handbook of the Law of Torts (4th ed. 1971), at p. 6, quoting Cecil A. Wright, "Introduction to the Law of Torts" (1944), 8 Cambridge L.J. 238, in this way:

 

. . . in short, doing all the things that constitute modern living -- there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others.  The purpose of the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person as the result of the conduct of another.

 

                   Allen M. Linden, Canadian Tort Law (4th ed. 1988), describes it in this way at p. 3:

 

First and foremost, tort law is a compensator.  A successful action puts money into the pocket of the claimant.  This payment is supposed to reimburse him for the economic and psychic damages he has suffered at the hands of the defendant.

 

                   Although compensation may be the primary purpose of tort law, it must be noted that aggravated or exemplary damages which may sometimes be awarded are aimed at punishment and deterrence.  Tort actions fulfil a role in appeasing the victim and may serve as a means of educating the public, as well as producers and manufactures, as to the dangers involved in the use of certain products or processes.

 

Duty of Care and Public Policy

 

                   On what basis will compensation be paid for damages in a tort action based upon a claim of negligence?  In order for a court to award compensation, it must be determined that the defendant owed the plaintiff a duty of care.  Only if such a duty exists, can the breach of that duty result in payment of compensation or damages.  The classical expression of the duty of care was set out in Donoghue v. Stevenson, [1932] A.C. 562, at pp. 580-81.  There it was explained that a duty of care arises when there is a likelihood of harm being occasioned due to one's actions to a person in a sufficient relationship of legal proximity to give rise to such a duty.  The notion of "legal proximity" has been set out in terms of whether the risk of harm ought to have been reasonably foreseeable to the defendant.  It has been recognized that there are instances in which a person may not have actually anticipated the harm but ought reasonably to have done so.  In those circumstances, the person will be found liable in negligence.

 

                   Nevertheless it has been observed that foreseeability in and of itself is not the only element in determining whether there is a duty of care.  In Anns v. Merton London Borough Council, [1978] A.C. 728, the House of Lords considered the importance of considerations beyond foreseeability and proximity, setting out a two-stage test for its determination.  This test was adopted by this Court in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2.  Wilson J., speaking for the majority, reformulated Lord Wilberforce's test in Anns, supra, in the following manner (at pp. 10-11):

 

(1)is there a sufficiently close relationship between the parties . . . so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person?  If so,

 

(2)are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?

 

                   This Court very recently reconfirmed both its adoption of the Anns, standard and of Wilson J.'s reformulation of it in London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299.

 

                   When a court considers whether a duty of care exists, it must of course take into account all the circumstances of the alleged wrongdoing.  That will involve a consideration of the facts which are pertinent to each case.  The doctrine of stare decisis means that all others in the same position as the plaintiff and defendant in the particular case will also be affected.  This is one of the reasons the court must take public policy into account.  This was first clearly and frankly recognized in the dicta of Lord Denning in Dorset Yacht Co. v. Home Office, [1969] 2 Q.B. 412, at p. 426, where he wrote:

 

It is, I think, at bottom a matter of public policy which we, as judges, must resolve.  This talk of "duty" or "no duty" is simply a way of limiting the range of liability for negligence.

 

                   That public policy must be taken into consideration in tort cases was ably expressed Winfield and Jolowicz on Tort (12th ed. 1984), by W. V. H. Rogers, at p. 75:

 

The use of the word "policy" indicates no more than that the court must decide not simply whether there is or is not a duty, but whether there should or should not be one, taking into account both the established framework of the law and also the implications that a decision one way or the other may have for the operation of the law in our society.  For long the judges, while undoubtedly aware of it, displayed a reluctance to admit openly that the application of a "legal" rule is insufficient to deal with novel questions about the scope of the tort of negligence, but the post-war period has seen an increasing readiness to admit that considerations of policy must, from time to time, play a major part in the making of decisions.

 

                   This same principle was recognized and supported by Prosser in his text, supra, at pp. 325-26.  Thus it can be seen that although the Donoghue v. Stevenson principle may be taken as the starting point for determining whether a duty of care exists, societal concerns must also be addressed under the heading of public policy.  Thus even if a duty of care is found to exist, the court will have to determine whether, for public policy reasons, that duty should be limited in part or in whole.  This approach is entirely consistent with the principle set out in Anns, supra, which as we have seen has been adopted by this Court.  Thus the courts in Canada have expanded the consideration of the notion of a duty of care to meet the developing needs and concerns of society.

 

                   The same principle has been recognized in London Drugs Ltd. v. Kuehne and Nagel International Ltd., supra.  There La Forest J. wrote at p. 319:

 

In my view, the second branch of the Anns test is broad enough to allow for the consideration, where relevant, of the factors the English courts have considered in the context of their just and reasonable test.  It is now well established that policy considerations may in fact negate the existence of the duty; see Central Trust Co. v. Rafuse, [[1986] 2 S.C.R. 147]; Leigh & Sillivan Ltd. v. Aliakmon Shipping Co., [1986] A.C. 785 (H.L.); Norwich City Council v. Harvey, [1989] 1 All E.R. 1180 (C.A.); Pacific Associates Inc. v. Baxter, [[1990] 1 Q.B. 993].

 

Public Policy and the Impaired Plaintiff

 

                   Tort law has recognized society's concern for the danger posed by those who drive while impaired.  A response to this concern has been judicial recognition that reasonable steps must be taken to prevent those who have consumed alcohol from driving and to make the supplier of alcohol responsible for the injuries caused to and by the drunken driver.  See for example Jordan House Ltd. v. Menow, [1974] S.C.R. 239.  Further, the courts have properly demonstrated their willingness to impose a duty upon those who control a car so that they will be properly held liable for permitting impaired persons to drive their vehicles.  See Hempler v. Todd (1970), 14 D.L.R. (3d) 637 (Man. Q.B.); Ontario Hospital Services Commission v. Borsoski (1973), 54 D.L.R. (3d) 339 (Ont. H.C.); and Betts v. Sanderson Estate (1988), 31 B.C.L.R. (2d) 1 (C.A.).  This Court cited Hempler, supra, and Borsoski, supra, with approval in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, where a drunken plaintiff recovered damages for injuries suffered when he was sliding downhill in an inner tube.  There Wilson J. wrote, supra, at pp. 1196-97:

 

                   The general approach taken in Jordan House has been applied in a number of cases.  Car owners who have permitted or instructed impaired persons to drive their cars have been found liable (see:  Hempler v. Todd (1970), 14 D.L.R. (3rd) 637 (Man. Q.B.), and Ontario Hospital Services Commission v. Borsoski (1973), 54 D.L.R. (3rd) 339 (Ont. H.Ct.)) as has the owner of a motorcycle who allowed a young unlicensed driver to use it (see:  Stermer v. Lawson (1977), 70 D.L.R. (3d) 366 (B.C.S.C.)).  The common thread running through these cases is that one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury.  The plaintiff's inability to handle the situation in which he or she has been placed--either through youth, intoxication or other incapacity--is an element in determining how foreseeable the injury is.

 

                   These cases clearly demonstrate that the impairment of the plaintiff does not necessarily constitute a bar to recovery of damages.

 

                   In sum it can be seen that the remedy provided by the law of tort is a flexible one.  It is based upon a desire to achieve fairness by compensating, in appropriate cases, those who have been injured by the conduct of others.  It must remain flexible and be permitted to grow with a changing society.

 

                   Similarly tort cases, which would necessarily involve the consideration of public policy as a bar to recovery, should determine the applicable principles on a case by case basis.  These principles, like those applicable in the law of tort, should be flexible and evolve with our ever changing society.  What may be contrary to public policy in our decade may be perfectly acceptable in the next.

 

Contributory Negligence

 

                   During the course of the development of tort various concepts have been put forward which were aimed at limiting its scope.  In earlier days  the defence of contributory negligence constituted an absolute bar to recovery in a tort action.  Contributory negligence has been defined as "unreasonable conduct on the part of a victim which, along with the negligence of others, has in law contributed to the victim's own injuries" (see Lewis N. Klar, Tort Law, at p. 299).  It is hard to say how the doctrine grew or upon what foundation it was based.  Perhaps it arose from the court's desire either to control the tendency of juries to find in favour of plaintiffs or to use it as a means of exercising a type of public policy control over recovery in tort cases.  In any event, it was first enunciated in Butterfield v. Forrester (1809), 11 East. 60, 103 E.R. 926 (K.B.).  This decision it should be noted, coincides with the Duke of Wellington's Peninsula campaign when muskets were still one of the principal military weapons.

 

                   The unfairness of the doctrine was soon recognized when it was applied in cases where the victim was responsible for the injuries only in a minute degree compared to the defendant.  One means that was introduced in an attempt to outmanoeuvre the application of the principle was the doctrine of last clear chance.  By this doctrine, if a plaintiff had in fact been negligent but the defendant had the last clear chance to avoid the accident and was at fault in failing to avail him or herself of the opportunity then the plaintiff could recover despite his or her contributory negligence.  (See Davies v. Mann (1842), 10 M. & W. 546, 152 E.R. 588, and Salmond on Torts (17th ed. 1977), by R. F. V. Houston at pp. 512‑13).  However the application of the doctrine of last clear chance led to great confusion and still did not completely alleviate the unfairness arising from the rigid application of the defence.

 

                   It was the recognition of the basic unfairness of the contributory negligence defence that led to the passage of Acts providing for apportionment of liability (Negligence Acts) in most common law jurisdictions including all the common law provinces of Canada.  This legislation recognized that accidents are frequently caused by the negligence of two or more parties and that fairness requires that the liability for the damages should be apportioned among all the parties who are responsible in accordance with the extent of their responsibility.

 

                   There is in my view a great deal to be said for the position that apportionment legislation goes far towards removing ex turpi causa as a defence.  So far as possible the doctrine should be confined to the contractual sphere where it serves a useful purpose.

 

Volenti Non Fit Injuria

 

                   Another mechanism aimed at limiting the scope of tort actions is the defence known by the maxim volenti non fit injuria.  The maxim stands for the proposition that no injury is done to one who consents.  The defence applies both to intentional and accidental harms.  Salmond on Torts, supra, at p. 496 ff. would draw a distinction between the two, characterizing the defence as either a negation of the duty of care or as a bar to recovery.  See also the reasons of Justice McLachlin in London Drugs, supra; Clerk & Lindsell on Torts (16th ed. 1989), at pp. 112-13; Fleming, The Law of Torts (7th ed. 1987), at p. 265; Salmond and Heuston on the Law of Torts (19th ed. 1987) at pp. 557-58; Linden, supra, at pp. 448-49.  No matter how the maxim or principle is characterized, volenti non fit injuria, like the common law defence of contributory negligence, constituted an absolute bar to recovery.  While apportionment legislation such as the various negligence acts has reduced or removed entirely the draconian effects of the contributory negligence defence, volenti remains as a complete defence.  Yet it has, in recent years, been severely restricted in its application.

 

                   In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage.  That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity.  It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein, [1963] S.C.R. 38).

 

                   The defence of volenti was advanced in this Court in several cases, particularly pertaining to passengers in motor vehicles.  However, it is significant that the defence has rarely been accepted.  See for example Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Lehnert v. Stein, supra; and Eid v. Dumas, [1969] S.C.R. 668.

 

                   In Dube v. Labar, [1986] 1 S.C.R. 649, at p. 658, Estey J. described the very limited scope of the doctrine in these words:

 

. . . volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part.  The acceptance of the risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise ... only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to.

 

                   The volenti defence acts as a complete bar to recovery.  Although it has not been the subject of legislation, it has been very severely limited in its application.  Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence.  See Prosser, supra, at p. 454.  Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity.  The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so.  Clearly, the volenti defence will only be applicable in a narrow range of cases.

 

                   Thus the defence of contributory negligence has been eliminated by legislation and that of volenti severely restricted by the courts.  There remains to be considered the third defence put forward as an absolute bar to recovery in tort actions.  That defence skulks furtively behind the Latin maxim ex turpi causa non oritur actio.

 

Ex Turpi Causa Non Oritur Actio

 

                   The maxim has been translated to mean "no right of action arises from a base cause".  Its effect is to provide that wrong doing on the part of a plaintiff can be used to bar recovery.  Historically, the doctrine first arose, and in my view was correctly applied, in contract cases to bar a plaintiff from using the court to enforce an illegal contract.  Unfortunately, the doctrine has found its way into the realm of tort law.  The application of the principle by way of defence completely bars recovery.  Because the results may often be disastrous and manifestly unfair, various methods have been used by courts in an attempt to either circumscribe or avoid its application.

 

Application of the Doctrine

 

                   The defence has not been frequently advanced in tort cases.  When it has been put forward its consideration by the courts has been so inconsistent that it has given rise to a great deal of well merited criticism.  See G. H. L. Fridman, "The Wrongdoing Plaintiff" (1972), 18 McGill L.J. 275; Ernest J. Weinrib, "Illegality as a Tort Defence" (1976), 26 U.T.L.J. 28; D. Gibson, "Comment:  Illegality of Plaintiff's Conduct as a Defence" (1969), 47 Can. Bar Rev. 89; Jane P. Swanton, "Plaintiff a Wrongdoer:  Joint Complicity in an Illegal Enterprise as a Defence to Negligence" (1981), 9 Sydney L. Rev. 304; W. J. Ford, "Tort and Illegality:  The Ex Turpi Causa Defence in Negligence Law" (1977-78), 11 Melbourne U.L.R. 32, 164; Charles Debattista, "Ex Turpi Causa Returns to the English Law of Torts:  Taking Advantage of a Wrong Way Out" (1984), 13 Anglo-Am. L.R. 15; Neville H. Crago, "The Defence of Illegality in Negligence Actions" (1964), 4 Melbourne U.L.R. 534; Harold S. Davis, "The Plaintiff's Illegal Act as a Defense in Actions of Tort" (1904-05), 18 Harv. L. Rev. 505; Bruce MacDougall, "Ex Turpi Causa:  Should a Defence Arise From a Base Cause?" (1991), 55 Sask. L. Rev. 1; P. Legrand Jr., "La dynamique de l'impunité:  autour de la défense d'ex turpi causa en common law des délits civils" (1991), 36 McGill L.J. 609.

 

                   The inconsistency in the application of ex turpi causa makes it somewhat difficult to summarize the approaches that the courts have taken.  However, there do appear to be four distinct opinions expressed regarding the effect of a plaintiff's illegal act.  In early American cases, the illegal act of the plaintiff was said to go to causation.  (See Harold S. Davis, "The Plaintiff's Illegal Act as a Defense in Actions of Tort", supra.)  This approach has sometimes been adopted in Canada (see, e.g., Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, at p. 477 and the reasons of La Forest J. in Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p. 262.  In other cases the illegal act is said to negate the duty of care (see, e.g., the Australian case Smith v. Jenkins (1970), 119 C.L.R. 397 (Aust. H.C.), at p. 400).  In still others the illegal act is said to make the determination of a standard of care impossible (see, e.g., Pitts v. Hunt, [1990] 3 All E.R. 344 (C.A.), and Progress and Properties Ltd. v. Craft (1976), 135 C.L.R. 651 (Aust. H.C.)).  Finally, others have suggested that illegal acts of the plaintiff should act as a bar to recovery of damages.  (See discussion in MacDougall, supra.)

 

Justification for the Application of the Doctrine in Tort

 

                   No matter how inconsistently it has been applied, there have been three principal justifications put forward for the application of ex turpi causa in tort.  These can be roughly described as: (a) a plaintiff should not be able to profit from his or her illegal actions; (b) that the maxim should be used to support the aims of the criminal justice system; (c) that allowing recovery by wrongdoing plaintiffs would have the effect of throwing the administration of justice into disrepute or of hampering the operation of justice.  It may be convenient to now consider each of these "justifications".

 

(a)Profiting from an Illegal Wrong

 

                   This justification is based upon the proposition that a plaintiff should not be permitted to profit from his or her own wrongdoings.  This principle is, I think, more properly applicable to the law of contract than of tort.  As we have seen the prime purpose of modern tort law is to provide compensation for injuries caused by the conduct or fault of others.  It attempts to put the plaintiff back in the same position he or she would have been in had the tortious acts not been committed.  A "wrongdoing plaintiff" who recovers damages in tort is not receiving the benefit for the wrongful act but is merely being compensated for a harm that occurred as a result of a breach of duty of care owed to the plaintiff.  The plaintiff's wrongdoing would be taken into consideration in assessing the extent of the liability for which the plaintiff would be responsible under the applicable Negligence Act.

 

                   The policy reasons put forward for the maintenance of the doctrine of ex turpi causa form the proper rationale for the application of the doctrine in contract law.  In those cases where an agreement is voluntarily made, giving benefits to each side, the courts are properly justified in refusing to enforce those agreements which are illegal.

 

                   One of the rare instances in which ex turpi causa may be helpfully considered is in the context of economic torts.  This is best exemplified by Canada Cement LaFarge Ltd., supra.  There the plaintiff-respondent claimed to have suffered damages as a result of a conspiracy to injure it.  The plaintiff-respondent who in the course of its business was allegedly a co-conspirator of the appellants, argued that it had been driven into bankruptcy by the illegal combines activity of the appellants.  Writing for the Court, Estey J. found that the tort of conspiracy was not made out.  He went on, however, to consider whether the plaintiff might be barred from claiming against the appellants on the ground that it had also participated in the illegality at issue.  In rejecting this argument, Estey J. relied on lack of causation stating that the damages suffered were not linked to the illegality in which the plaintiff had participated.  However, Estey J. accepted that had the causal link been present, the respondent would have been barred from recovering (supra, at pp. 475 ff.)  In his reasons, Estey J. noted the controversy with respect to the application of ex turpi causa to tort but went on to state, at p. 479:  "If the loss suffered by the respondent was occasioned by his voluntary participation in an illegal transaction, the courts should not come to his assistance."

 

                   Of all the cases in which ex turpi causa has been considered this one is the most akin to the area in which ex turpi causa is properly applied, that is, contract.  Essentially, by seeking damages the respondent was trying to recover the profit of its illegal bargain.  This is exactly the situation which ex turpi causa rightly prevents in the contractual domain.  As Estey J. explains, at p. 477:

 

The benefit falling to the respondent was the opportunity to be the sole supplier of lightweight aggregate to the combine.  If the damages which have been suffered by the respondent flowed from its involvement in the illegal combine or from the contracts entered into between the respondent and the appellants affording the opportunity to the respondent to participate in the combine, then these doctrines prevent the respondent's recovery.  [Emphasis added.]

 

Had the causal connection that was lacking in that case been present, then indeed that would seem to be an occasion in which there should not be recovery.  Allowing such recovery in this very restricted type of economic tort would not achieve compensation, but rather would permit the plaintiff to acquire illegal profits.

 

                   However, this would be, in my opinion, an instance in which the volenti defence will properly apply.  This is indeed a situation where a court will be able to find tacit voluntary assumption of risk.  When a party enters into an illegal bargain there is clearly an agreement that in the event of an inability to recover illegal profits due to negligence of one of the parties to the illegal agreement, no law suit would be brought.  No party to an illegal combine would think that it could sue to recover the profits it should have been able to make from its illegal activities.  While it would be inappropriate for profits on illegal bargains to be recoverable in tort when they cannot be recovered in contract, this does not necessitate the retention of the ex turpi causa defence in tort.  The tortious illegal bargain situation lends itself very conveniently to the application of the volenti defence which, appropriately, serves to bar recovery entirely.

 

                   However, the profiting from an illegal bargain rationale generally cannot be readily transferred to the realm of tort.  The case of Hegarty v. Shine (1878), 14 Cox C.C. 145 (Irish C.A.), is perhaps a notorious example of the unfairness which results from transferring the doctrine from contract to tort law.  In that case a woman sought damages as a result of becoming infected with a venereal disease as a result of what was said to be illicit sexual intercourse.  She was denied recovery on the basis that the courts should not provide a remedy for immoral and illegal acts.  Yet the woman could in no sense be said to be profiting from her immoral action if she were simply compensated for the physical injury she sustained as a result of contracting the venereal disease.  Could it possibly be argued today that a prostitute who became infected with AIDS, by a carrier of that disease who was aware that he or she was a carrier, should be prevented from recovering compensation for contracting AIDS because of the fact that he or she was a prostitute?  The better solution would be to provide compensation for the prostitute subject, of course, to a consideration of the effect of any contributory negligence.  This, I hasten to add, would not prevent the prosecution of both parties for any breach of the criminal law they might have committed.

 

(b)  Reinforcement of Criminal Law

 

                   The second justification put forward for the application of the ex turpi causa maxim is that it serves to re-enforce criminal law.  According to proponents of this position, the tort system can and should support the workings of the criminal justice system by providing penalties for illegal behaviour.  This position should be rejected.  A court when sentencing must consider the nature of the crime and the offender and impose a penalty that is appropriate for the crime and the offender all within the limits for sentencing provided by the Criminal Code .  There does not seem to be any rational basis for a court to impose an additional sanction upon a convicted person by denying what may well be fair and just compensation for injuries received as a result of a tortious act.  See Wynrib, supra; MacDougall, supra; and Gibson, supra, at p. 92.  In sum it seems unfair and unreasonable to impose a sanction beyond that which has been set out by the Criminal Code  in the guise of reinforcing criminal law.

 

(c)Integrity of the Justice System

 

                   The final justification put forward for the use of the doctrine is that it protects the integrity of the justice system.  It is said that use of the ex turpi causa defence satisfactorily addresses two concerns.  The first concern is that the judicial system's scarce resources should not be employed to allow a plaintiff to recover for injuries suffered during the commission of an illegal or immoral act.  Secondly, it would be unseemly for the court to attempt to resolve some of the issues that would arise in such a claim.  An example of this last concern is set out in Progress and Properties Ltd. v. Craft, supra, at p. 668, a decision of the High Court of Australia.  There Jacobs J. made the following observation:

 

Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances.  A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device.

 

                   The concern expressed as to claims put forward which can amount to an abuse of the court processes may well be valid.  It was this justification which was considered by Justice Sopinka in his reasons in Norberg, supra, in which he stated at p. 316:

 

My colleague refers to the observation of Estey J. that the application of this maxim to defeat a tort action has been rare.  Its use has been much less frequent in recent times.  The courts have taken a less rigid view of its purpose.  Emphasis is now placed on preserving the administration of justice from the taint that would result from the approval of a transaction that a court ought not to countenance.  In this regard, I agree with the statement of Taylor J. in Mack v. Enns (1981), 30 B.C.L.R. 337 (S.C.), at p. 345:

 

The purpose of the rule today must be to defend the integrity of the legal system, and the repute in which the courts ought to be held by law-abiding members of the community.  It is properly applied in those circumstances in which it would be manifestly unacceptable to fair-minded, or right-thinking, people that a court should lend assistance to a plaintiff who has defied the law. 

 

                   Yet I wonder if the use of the defence is the best means of protecting the courts.  The ex turpi causa defence by its very nature invites the pronouncement of arbitrary and personalized conclusions from the bench.  W. J. Ford points out the difficulty of applying this concept in "Tort and Illegality:  The Ex Turpi Causa Defence in Negligence Law (Part Two)," supra, at p. 184:

 

                   While a refusal to entertain actions which would have the effect of shocking the public conscience might be defensible, it is often difficult to distinguish between public and merely judicial outrage, a problem which lends added force to Starke J.'s warning that `moral indignation must not be mistaken for public policy'.

 

                   Furthermore, compensation should not be looked upon as a judicial approbation of a plaintiff's illegal activities.  Criminal prosecution serves the purpose of expressing judicial and, more importantly, society's condemnation of the illegal activities.

 

                   Let us consider some examples of situations where the plaintiff, although guilty of an immoral or illegal act, was injured by the tortious acts of the defendant and should still recover damages.  Take first a Norberg-type scenario where drugs were provided by a doctor in return for sexual favours.  Clearly the tortious acts of the doctor can be recognized and the plaintiff compensated for them without any risk of the court's being seen as giving its approval of the drug-abusing behaviour of the plaintiff.  Neither the offence of "double doctoring", of which the plaintiff was guilty in that case, nor any sense of immorality which might be attributed to some of her activities, is relevant to the court's determination of her tort claim.  Any consideration of the culpability of the plaintiff in those circumstances would be irrelevant to the issue of compensation.  In a situation in which the plaintiff's conduct is relevant to the issue of damages, it will be best considered either in the context of contributory negligence or in the admittedly rare case of a voluntary assumption of the risk of injury from engaging in the dangerous activity.

 

                   Another example is that of the plaintiff who is driving while impaired and is injured by the negligent acts of another or the situation presented in Crocker v. Sundance Northwest Resorts Ltd., supra, where the drunken plaintiff was injured while sliding downhill on an innertube.  In these examples the culpability of the plaintiff for being impaired while driving a motor vehicle or for being drunk in a public place is irrelevant to the issue of damages for compensation arising out of the tortious acts of others.  Once again the impaired driving or drunkenness may be taken into account in considering contributory negligence and in rare circumstances in the voluntary assumption of the risk; yet, unless the plaintiff truly assumed the risk he or she may recover damages.  Thus it can be seen that there are many examples of cases in which the Court has awarded compensation although the plaintiff has been guilty of an illegal act.

 

                   The extreme example of the claim for damages brought by a bank robber injured in an explosion caused by the negligent handling of the explosives by his partner can be readily resolved and dismissed by the application of public policy considerations.

 

                   Further, I do not think that the concern represented by Progress and Properties Ltd. v. Craft, supra, poses a serious problem.  Courts are expected to hear and do in fact hear cases that are frequently unpleasant, unsavoury and sordid.  Yet they manage to determine standards of care in the most difficult of circumstances.  There does not seem to be any reason for a court to refuse to consider the standard of care on the ground of unseemliness.

 

Can the "Justifications" be Justified?

 

                   None of the three justifications is particularly convincing.  A better mechanism for assessing the actions of the plaintiff in most tort cases will be by means of either the operation of the appropriate Negligence Act, the application of the volenti defence, or in considering whether a duty of care exists.

 

                   The Negligence Acts by the principle of apportionment of responsibility are aimed at achieving that fairness which the tort remedy seeks to provide.  It might have reasonably been thought that this legislation would spell the end of ex turpi causa defence.  Yet despite the passage of apportionment legislation, the doctrine of ex turpi causa stubbornly and somewhat irrationally has survived.  Like many noxious weeds, it appears to be difficult to eradicate.

 

                   Some judges have, with good reason, suggested that the doctrine of ex turpi causa is not only anachronistic but also has been specifically eliminated by the enactment of apportionment legislation.  In Lewis v. Sayers, [1970] 3 O.R. 591, at p. 598, Gould Dist. Ct. J. stated:

 

                   It appears to me that in a case to which, by reason of its facts, s. 4 of the Negligence Act applies, the Ontario Legislature has quite deliberately substituted for the ex turpi causa rule a positive direction that the Court shall make a finding as to the degree of fault or negligence to be attributed to each party and shall apportion the damages accordingly.  I realize of course that s. 4 was enacted primarily to do away with the absolute defence formerly available in cases of contributory negligence, but the wording is equally apt in relation to the defence now under discussion, to which the added words "fault or" seem to apply with particular force.  The defence ex turpi causa non oritur actio seems necessarily to involve a situation where both parties are alleged to be at fault, and so long as it is remembered that s. 4 applies only where the fault of each has contributed to the damages, in my opinion the section leaves no room for the application of the maxim.

 

MacDougall, supra, cites Gould Dist. Ct. J. and agrees at p. 41:

 

Ex turpi causa is anachronistic in light of the existence of contributory negligence legislation.  In fact, the finding that ex turpi causa applies where contributory negligence legislation also applies undermines the purpose of the contributory negligence legislation.

 

                   It must be remembered that the finding that a duty of care exists is the crucial first step in the court's consideration of a defendant's negligence.  Even when that duty is found to exist it has now been clearly recognized that the issue of public policy will come into play which can provide immunity for the defendant or limit the extent of the duty of care.  In those jurisdictions which still maintain the ex turpi causa defence in tort, examination shows that the issue of illegality really goes to public policy.  See for example, the Australian cases of Smith v. Jenkins, supra; Progress and Properties Ltd. v. Craft, supra; Jackson v. Harrison (1978), 138 C.L.R. 438; Gala v. Preston (1991), 172 C.L.R. 243.

 

                   I find support for the position that ex turpi causa has no place in the law of tort from the decision of the House of Lords in National Coal Board v. England, [1954] 1 All E.R. 546.  There Lord Porter wrote at p. 552:

 

. . . I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a "turpis causa" within the meaning of the rule.  Indeed, the adage itself is generally applied to a question of contract, and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort.

 

See as well, Fleming, supra, at p. 278, footnote 1 notes:

 

1.The maxim "ex turpi causa non oritur actio" is nowadays handled with caution.  According to a widely held view, it's sole legitimate function is to deny a plaintiff legal aid for accomplishing an illegal object, like enforcing a contract; at most to preclude him from relying on an illegal transaction necessary to establish his claim.  Neither is generally applicable to negligence claims.

 

G. H. L. Fridman, supra, comments at p. 293:

 

                   However, the cases which suggest ex turpi causa non oritur actio as a ground for rejection of a plaintiff's claim must now be read in the light of the comments and strictures raised by Windeyer, J. in Smith v. Jenkins.  These must surely make it difficult to accept that maxim as a satisfactory basis for decision-making in this area, if indeed, in the light of the comments of the [National Coal Board v. England] case any further critique was necessary.

 

                   Glanville Williams, in his Joint Torts and Contributory Negligence (1951), says in his chapter "The Scope of the Contributory Negligence Act", at p. 333:

 

                   Plaintiff's illegality.  The notion that it is an effective riposte in tort to show that the plaintiff was a wrongdoer should long ago have been killed by the arguments of Sir Frederick Pollock; but it has lingered on in some cases, aided by oft-repeated maxims like Ex turpi causa non oritur actio.

 

                   The law of tort is continuing to grow.  It provides a remedy of compensation that can stand on its own.  It has no need at this stage of its development to be fettered by the application of somewhat archaic doctrines expressed in Latin maxims.  Such maxims, clothed in their Latin mystique, lead to confusion in their definition and application.  It would be better if any limitation of the duty of care were recognized in the courts by the application of public policy considerations.

 

Summary

 

                   From this review perhaps some principles and conclusions may be derived.

 

(1)The remedy of tort is based upon a concept of compensation arising from a breach of duty.  It aims to put the injured party in the same position that he or she would have been in had the tortious act not occurred.

 

(2)The remedy is a flexible one that has responded to the problems arising in our increasingly complex society.

 

(3)Compensation in tort is based primarily upon a duty of care.  Traditionally, the duty of care is said to be present when there is a likelihood of harm arising due to one's actions to a person in a relationship of sufficient legal proximity to give rise to such a duty.

 

(4)The notion of legal proximity has been traditionally formulated in terms of whether the risk of harm ought to have been reasonably foreseeable to the defendant.

 

(5)This Court has approved the two stage test for considering foreseeability, proximity and duty of care.  It is:  (i) is there a sufficiently close relationship between the parties so that, in the reasonable contemplation of a party, carelessness on its part might cause damage to another person; if so, (ii) are there any considerations which should negate or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise.

 

(6)It has been recognized that this test, particularly the second branch, is broad enough to take into account policy considerations which may in fact negate the existence of a duty of care.

 

(7)Damages have been awarded in many cases where the plaintiff has been guilty of illegal acts.

 

(8)The old common law defence of contributory negligence that stood as an absolute bar to recovery in tort actions has been legislated out of existence.  In many cases, two or more parties are responsible for the tortious act and should share responsibility.  The Negligence Acts of all the common law provinces provide a basis for a fair assessment and distribution of the liability.

 

(9)The defence of volenti, which provides a complete bar to recovery, has been confined to a narrow scope by this Court .

 

(10)Volenti may provide a valid defence in cases of economic tort.  See Canada Cement LaFarge Ltd., supra.

 

(11)The doctrine of ex turpi causa should be eliminated from application to tort cases.

 

(12)It would be better to consider the issue as a question to be resolved on considerations of public policy.

 

Application of the Principles to this Case

 

                   In this case we have two young men, whose ability to drive was impaired, in a high-powered muscle car, on a dark, inclined gravel road which on one side sloped sharply away to a gravel pit.  All the ingredients of tragedy were present.  The respondent was aware of the difficulties presented in handling his high‑powered vehicle.  He was aware that the appellant had consumed at least 11 beers over the course of an evening and three in the last hour.  He knew of the difficulties of roll-starting his car and that too much gas could all too easily be given to the car.  He was not aware that the appellant had even driven his car on another occasion.  The respondent, as the owner of the vehicle, was charged with its care and control.  In those circumstances he clearly owed a duty to the appellant to refuse to permit him to drive his vehicle.  I do not think that it is an "overriding" duty as expressed by the trial judge.  Rather it is an application of common sense that one who has the care and control of a vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of his or her vehicle.  Particularly this is so where the vehicle is high powered, the driving conditions are difficult and the proposed driver is clearly impaired.

 

                   There was a breach of the duty owed by the respondent to the appellant when he permitted the appellant to drive the car.  Next it must be considered if there is a basis, for public policy reasons, for denying the plaintiff the right to recover all or any part of his claim.  To repeat, the defence of ex turpi causa should not be applied in tort cases.  The issue of "public policy" should not be considered under the archaic Latin rubric of ex turpi causa but honestly and frankly under the designation of public policy.  In this case there is no basis for the application of the doctrine under any guise.

 

                   Even if, contrary to my views, ex turpi causa were to be applied, it must be observed that the majority of the Court of Appeal has gone further than any other court in applying the doctrine to a situation where there was not a joint criminal activity.  Generally speaking decisions in which the ex turpi causa defence has been applied have required the existence of joint illegal conduct by the parties.  See for example: Betts v. Sanderson Estate, supra, Canada Cement LaFarge Ltd., supra, Norberg v. Wynrib, supra, and Tallow v. Tailfeathers, [1973] 6 W.W.R. 732.  The majority allowed the defence based solely on the illegality of the conduct of the plaintiff.  This would seem to be contrary to decisions of this court in Harris v. Toronto Transit Commission, [1967] S.C.R. 460, and Miller v. Decker, [1957] S.C.R. 624, at pp. 627-28.  In any event I can see no reason for extending this anachronistic defence.  It remains then to determine if recovery should be denied on the grounds of public policy.

 

                   If a plaintiff's conduct was in contravention of the law and if this conduct was a factor in producing his injury, he may well be found guilty of contributory negligence or indeed of being the author of his own misfortune.  Yet simply because the plaintiff was a wrongdoer does not necessarily mean that he can have no remedy at law for harm done to him.  There have been, as we have seen, numerous cases where a plaintiff who has either been impaired while driving or drunk in a public place as in Crocker v. Sundance Northwest Resorts Ltd., supra, has been permitted to recover.

 

                   There is no reason why the appellant should be prevented from recovering compensation on the grounds of public policy.  To permit him to recover would not offend or shock the conscience of reasonable right thinking members of the community fully apprised of the facts.

 

                   In sum, public policy should not constitute an absolute bar to the recovery of compensation for the injuries suffered in an accident by an impaired driver.

 

Apportionment of Liability

 

                   The trial judge attributed 75 per cent of the responsibility of the accident to the respondent and 25 per cent to the appellant.  I cannot agree with that assessment.  Individuals must take responsibility for their actions.  It was the appellant who sought permission to drive the vehicle.  He must or should have been aware of his impairment.  He knew of the powerful nature of the vehicle and the problems involved in roll starting it.  He was aware of the dangers presented by the dark inclined gravel road sloping off steeply to the gravel pit on one side.  Nevertheless he sought permission to drive the car and obtained it.  He must accept responsibility for seeking permission to drive the car and for the manner in which he drove it.  In my view, there is little to choose between the negligence of the appellant and that demonstrated by the respondent.  The liability should be divided equally between the appellant and the respondent.

 

Disposition

 

                   In the result the appeal is allowed, the order of the Court of Appeal set aside and the trial judgment restored but varied to provide for an equal division of liability.  The appellant has achieved substantial success in this appeal, and should therefore have his costs here and in the courts below.

 

                   Appeal allowed with costs, Sopinka J. dissenting.

 

                   Solicitors for the appellant:  Paine, Edmonds, Vancouver.

 

                   Solicitors for the respondent:  Carfra & Lawton, Victoria.