Extra-contractual liability

This is the legal term to describe a damage for which a person is responsible and for which there is not a signed agreement between the parties.

  • The most classic example is a person at a shopping centre who, inadvertently, steps in a floor hole, 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 the persons responsible for 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.

  • 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 example, 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 according to the rules.
    • 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 place 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 fact that needs to be proven under the golden rule relates to the damages:
    • For example, an individual buys a house and, during the snow melting, he notices that there is an 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. If the salesman was at fault at the time of the purchase but the damages were repaired at no cost, the buyer would not be entitled to receive any compensation from the salesman.
  • The third factor is the causal link between fault and damages.
    • For example: In the situation of a reckless adolescent doing alpine ski who quickly crosses the path of a beginner skier.
    • The beginning 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 distracted woman hurts skis leaned against the wall, falls and breaks her hip.

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.

How can you or another party prove that the person was reasonably prudent and diligent?