Tort Law

2. Independant Tortfeasors and Multiple Causes

2 types of injury:
1. divisible: can be divided into distinct losses, and each loss can be attributed to a                   particular tortfeasor, giving P separate COAs against each of them
2. indivisible: each tortfeasor is held jointly and severally liable for all of the Ps losses,         regardless of whether s/he was a major or minor contributor

Lambton v Mellish (1894 3 ch163)- 2 refreshment vendors with organs producing noise, nearby homeowner alleges nuicance- noise made by each organ alone is a nuicance, so hold each liable separately

Arneil v Paterson (1931 HL)- 2 dogs attacked a flock of sheep, each dog is responsible for 100% of damage caused - impossible to apportion hrm btwn owners, therfore hold them joint a severally liable- D can collect entire judgement form either of them ( Neg’ce Act contains provisions allowing 1 tortfeasor to claim from the other)

Principle: “where there are concurrent torts, breaches of K, or a breach of K and a concurrent tort both contributing to the same damage, whether or not the damage would have occured in the absence of either cause, the liabilty is a joint and several liabilty and either party causing or contributing to the damage is libale for the whole damge to the perosn aggreived” Thompson v London County Council

Nowlan v Brunswick Const. Ltee. (1972 NB CA) - rot leak in the structure of a newly built house b/c of defect in architects design, and poor workmanship and inferior materials supplied by D - harm was considered indivisible, held severally liable to the owners of the building and jointly liable to each other
3. Joint Tortfeasors
- joint tortfeasors are held jointly and severally libale for torts committed by fellow     tortfeasors, even if they have not casued or contributed to the Ps loss in any way -
- legal liabilty stems from tortfeasors relationship with each other, not from playing a     causal role in the Ps loss
- relationship will be such that each is responsible for the actions of the other (?)

Cook v Lewis (1951 SCC)- P shot and injured by one of two hunters but its impossible to say which one- b/c defendants were engaged in a lawful pursuit w/ no reason to believe that the other would act negligently, and b/c neither had the right nor the oppty to control the other cannot be held as joint tortfeasors (catagory definable by relationship not cause)

- a realtionship of joint tortfeasors will often be found where, damage is casued by the pursuit of a common wrongful intention Newcastle(town) v Mattatall (1987 NBQB)

4. Problems in Evaluating the Plaintiffs Loss
a) DEVALUING THE PLAINTIFFS LOSS
Dillon v Twin State Gas and Electric Co (1932 New Hampshire SC)- deceased D was leaning over girder of bridge and fell, grabbed exposed wires and just prior to plunging to his death was elctrocuted- what is the measure of damages considering that he was bound to die as a result of the fall, the only effect of the electrocution was to decrease his life span by a few short seconds- unless it can be found that but for the current he would have fallen and suffered serious injury (in whcih case he would be entitled to the differcne btwn lost earnings of invalid and a corpse) as opposed to death there will be no award of damages, as there will be no finding of negligence

b) SUCCESSIVE INJURIES PRIOR TO TRIAL
Rule: people are compensated for loss sufferd, not physical injury, therefore if a later injury reduces disabilities from the first injury, it shortens the period for which the D must pay damages
Penner v Mitchell - P was awarded 13 months salary for an injury, but it was later uncovered that she would not have been able to work for three of those months due to a preexisting heart condition - D therefore did not have to pay for those 3 months

- in assesing damages in cases of successive injuries use the proximate casue test of reasonable forseeability of harm -
- if both injuries are culpable- there will be apportionment of liabilty
- if one injury is culpable and the other innocent - damages awarded for culpable harm will be reduced by impact of innocently casued damage (i think?)]

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