Damages without a contract between both parties
Have you suffered damage to you or to one of your properties without a contract between both parties?
The most classic example would be a person who goes to the mall and inadvertently steps into a poorly maintained hole in the floor, falls, and breaks his or her arm.
There is no contract between the client and the shopping centre. However, the Quebec Civil Code stipulates that those in charge of the shopping centre must act in a prudent and diligent manner to ensure that the public spaces are well serviced in order to ensure the clients’ security.
An extra-contractual situation?
Three elements must be proven
Three elements must be proven to determine extra-contractual liability between the parties.
The golden rule in the matter of extra-contractual liability is quite simple: First of all, it must be proven that there is negligence as defined by the law.
For instance, if we get treated by a doctor, it is possible that he will no be able to cure us. The doctor has no performance obligation. However, he has the obligation to fulfill his tasks to the best of his abilities while also respecting industry norms and requirements.
Another example: A woman enters a grocery store and slides on a transparent shampoo puddle. She sues the store, and is confident that she will win the case. However, it was proven that the housekeeping clerk had just walked at the same location just before she did, in the same alley, and that at that moment there had not been any shampoo spill. It would seem that another client who happened to pass just before this woman had inadvertently hit the bottle. This happens sometimes. It is unfortunate for the woman, but the store was not negligent and was not at fault; the store was not convicted to indemnify her.
The second condition that needs to be proven under the golden rule relates to the damages:
For instance, an individual buys a house and, when the snow melts, he notices that there is a water infiltration. The house has been bought with a legal warranty against hidden defects and the infiltration defect had not been reported. In this case, there is an offence.
However, the insurance company has fully compensated him for the damages caused by the infiltration and the individual’s brother-in-law, who works in foundation repairs, has fixed the crack at no cost.
So it may seem that there were no damages.
Even if the seller committed a fault at the time of purchase, the problem was resolved at no cost, the buyer would not be entitled to receive any compensation from the seller.
The third factor is the causal link between fault and damages.
For instance, a reckless adolescent doing alpine ski who quickly crosses the path of a beginner skier.
The beginner skier, in trying to prevent the impact, loses her balance and falls heavily on the hard snow. She is in pain and the ski monitors take her down on a stretcher as a precaution.
Coming out of the clinic, the beginner skier was distracted and tipped over on her skis that were leaning against the wall, breaking her hip as she fell.
In this example, the young skier is at fault. There have been damages in the form of a broken hip.
However, the damages are not the adolescent’s fault.
Thus, the importance of proving the causal link.
Our law firm can help you determine whether the three necessary conditions are met and whether it is appropriate to proceed.