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Margaret A Somerville, 1981 26-4 McGill Law Journal 740, 1981 CanLIIDocs 103
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JPS McLaren, 1967 32-1 Saskatchewan Law Review 45, 1967 CanLIIDocs 156
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In the course of their stately opinion in the case of The Wagon Mound the Judicial Committee of the Privy Council declared that “their Lordships have not found it necessary to consider the so-called rule of ‘strict liability’ exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.” The best excuse for the present addition to the controversial literature that is accumulating round this case is that, the courts having yet to pronounce on remoteness in cases of strict liability, there seems to be still some room for speculation, especially with reference to policy. It is therefore hoped that the fall, as it were, of yet another leaf in the forest will at least do no harm.
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Both academics and judges share the general opinion that the question of remoteness of damages cannot be resolved in a rule-governed manner, that is to say by the applications of a test. We disagree with this conclusion. We propose a test in terms of foreseability of damages which reconciles the leading decisions of The Wagon Mound (No. 1), The Wagon Mound (No. 2) and Hughes v. Lord Advocate. We have analyzed almost all the remoteness issues and have found that the test conforms with ninety percent of the past decisions, consequently we should be able to predict the outcome of remoteness issues with only a ten percent error. If courts consciously adopt our version of the foreseeability test, the margin of error could drop even further.
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Since the early nineteenth century there has been debate as to what should be the extent of responsibility for the consequences of negligent conduct. In this article the author discusses that debate in relation to the criteria of foresight and direct causation. In doing so, the author closely examines the decision in Re Polemis and Furness Withy & Co, as well as the Wagon Mound case. Through a thorough analysis of the foresight test, the author illustrates that the causal theory found in Polemis is extreme and that application of it remains isolated. The author suggests that the Polemis rule has had very limited practical effect and predicts that the role of the Wagon Mound case will also be a modest one.
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Throughout North America, there has been an increasing interest in the development of alternative forums for dispute resolution that may more effectively address the needs of victims, offenders, and the community. Concurrent with this has been an attempt to alter the adversarial framework of the criminal justice system. This has included the development and implementation of case processing strategies premised on restorative justice and attempting to secure the participation of communities as partners in the resolution of disputes. One particularly innovative initiative is circle sentencing, which has been implemented in several communities in the Yukon, Canada. The procedure by which cases are processed in circle sentencing is outlined and the involvement of the offender, the victim, the community, and the territorial court are discussed.
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The authors argue that civil procedure sanctions and traditional common law procedural remedies are often insufficient or unavailable to deter tortfeasors from intentionally destroying evidence related to their wrongdoing and to compensate victim-plaintiffs. They explain why a civil cause of action is appropriate and necessary to address this serious threat to the viability of the court's fact finding process and ability to properly compensate injured persons.
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