Hall v. Hebert, [1993] 2 S.C.R. 159 (1993)
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Hall v. Hebert, [1993] 2 S.C.R. 159 (1993)
Hall v. Hebert, [1993] 2 S.C.R.
159Vincent Hall Appellant v.Jean Hebert, also known as Joseph Jean Claude Hebert RespondentIndexed as: Hall v. HebertFile 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 columbiaTorts -- 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 ...See the full content of this document
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