Exemption and Apportionment of Liability

Overview

Under art. 1457 CCQ, every person endowed with reason is bound to make reparation for injury caused to another by fault (faute). The victim must prove fault, injury (prejudice), and causation (lien de causalite). The defendant may, however, invoke several means to defeat or reduce that liability. The Civil Code of Quebec (Code civil du Quebec) frames these means in arts. 1470 to 1479 CCQ: superior force (force majeure) (art. 1470), the threshold of gross or intentional fault for certain situations (art. 1471), legitimate motive (motif legitime) (art. 1472), the prohibition of exclusion clauses for bodily injury (art. 1474), the contributory fault of the victim (art. 1478), and the duty to mitigate (obligation de minimiser les dommages) (art. 1479). This article groups these means under four headings: the conduct of the victim, the conduct of the person causing injury, external events that sever or attenuate causation, and unilateral notices of exclusion of liability.

Learning Objectives

Apply the conditions of the contributory fault of the victim (art. 1478 CCQ) and distinguish apportionment of liability (partage de responsabilite) from total exemption.
Analyse the theory of assumption of risk (acceptation des risques) (art. 1477 CCQ), including its limits when a third party's fault aggravates the risk.
Identify the conditions of superior force (art. 1470 CCQ) and explain why the defendant's irreproachable conduct is a prerequisite for invoking it.
Distinguish the novus actus interveniens from a mere concurrence of faults and determine when the second fault severs the initial causal link.
Evaluate the scope of art. 1476 CCQ concerning exclusion notices and their effect as a denunciation of danger (denonciation d'un danger).
Apply the rules of solidarity (solidarite) (art. 1526 CCQ) in the context of apportionment among co-authors of injury.

Key Concepts and Definitions

Fault (faute): failure to meet the standard of conduct of a prudent and diligent person, assessed objectively (art. 1457 CCQ).
Gross fault (faute lourde): abnormally deficient conduct displaying recklessness, imprudence, or gross negligence (art. 1474 CCQ).
Intentional fault (faute intentionnelle): conduct specifically aimed at causing injury to another person.
Superior force (force majeure): an unforeseeable and irresistible event; an extraneous cause presenting those same characteristics is assimilated to it (art. 1470 para. 2 CCQ).
Novus actus interveniens: a new intervening act occurring after the initial fault and severing the causal link between that fault and the injury.
Apportionment of liability (partage de responsabilite): distribution of the compensatory burden between the victim and the person causing injury, or among co-authors, in proportion to the respective gravity of the faults (art. 1478 CCQ).
Solidarity (solidarite) / joint and several liability: obligation by which each co-author is bound to make reparation for the entirety of the injury (art. 1526 CCQ).
Assumption of risk (acceptation des risques): the fact that the victim assumes the normal risks inherent in an activity in which the victim voluntarily participates (art. 1477 CCQ).
Duty to mitigate (obligation de minimiser les dommages): the victim's obligation, grounded in good faith (bonne foi), to take reasonable measures to prevent the aggravation of the injury suffered (art. 1479 CCQ).

Conduct of the Victim

The person claiming reparation may face three categories of objection based on personal conduct: contributory fault, assumption of the risks inherent in the activity, or failure to mitigate damages.

Fault of the Victim (art. 1478 CCQ)

Art. 1478 CCQ provides that a victim endowed with reason who, through personal fault, contributes to the occurrence of the injury for which reparation is sought must bear a share of liability proportional to the gravity of that fault relative to the fault of the person causing injury.

Apportionment mechanism. The court exercises broad discretion in fixing the percentages of liability, taking into account the respective gravity of the faults and the circumstances of each case. The reduction of the indemnity may extend to the outright dismissal of the action when the victim was the "author of his or her own misfortune" (artisan de son propre malheur).

Victim not endowed with reason. The wording of art. 1478 CCQ requires a "fault of the victim." Unlike other provisions of the Code that refer to the "act or fault" (fait ou faute), this article presupposes the capacity for discernment. A victim who lacks reason (for example, a young child) retains the right to full compensation, because objectively faulty conduct cannot ground an apportionment where there is no legal fault.

Fault equivalent to a novus actus. Where the victim's conduct is of such recklessness that it amounts to a gross fault, it may be characterised as a novus actus interveniens, severing the causal link between the initial fault and the injury. In that case, the victim is treated as the exclusive cause of the injury suffered.

Example. A pedestrian crosses a road outside a crosswalk, at night, wearing dark clothing, and is struck by a motorist travelling at excessive speed. The court may conclude that liability should be apportioned, assigning a share to the motorist (excessive speed) and a share to the pedestrian (reckless crossing). If the pedestrian had climbed over a safety fence and crossed a limited-access highway despite prohibition signs, that conduct might be found sufficiently reckless to constitute the exclusive cause of the injury.

Assumption of Risk (art. 1477 CCQ)

Every person who voluntarily participates in an activity assumes, in principle, the normal and inherent risks of that activity. Art. 1477 CCQ specifies that this assumption, even if it constitutes imprudence, does not entail a renunciation of the right to sue the person causing injury.

Scope of assumption. A person who practises a sport (hockey, skiing, horseback riding, snowmobiling, parachuting) assumes the foreseeable, reasonable risks directly linked to the activity. That person does not assume unreasonable, abnormal risks that bear no relation to the sport. Similarly, a spectator at a hockey game assumes the risk of being struck by a puck accidentally deflected into the stands, but does not assume risks arising from a trap or concealed danger.

Fault of a third party aggravating the risk. Where the materialisation of the risk involves the fault of a third party (another participant, the organiser of the activity, or the person responsible for the premises), the victim may pursue that third party in liability. Assumption of risk covers only normal risks, not the aggravation resulting from the faulty conduct of another person.

Unusual risks and the duty to inform. When the activity involves unusual risks of which the participant cannot have spontaneous knowledge, the person responsible for the activity or for the premises must inform the participant. Failure to provide that information constitutes a fault capable of engaging the organiser's liability.

The rescue doctrine (acte de sauvetage). Quebec civil law recognises the rescue doctrine: a person who comes to another's aid and suffers injury may claim reparation from the person rescued, provided that the intervention was necessary, that it had a reasonable chance of success, and that the rescuer did not act recklessly or rashly. The person rescued may not invoke the theory of assumption of risk against the rescuer.

Interaction with art. 1478 CCQ. Assumption of risk may constitute a contributory fault (faute contributive) within the meaning of art. 1478 CCQ, giving rise to an apportionment of liability or even to a complete exemption of the person causing injury where no fault on that person's part is established.

Duty to Mitigate (art. 1479 CCQ)

Art. 1479 CCQ codifies the principle that the person bound to make reparation for injury is not liable for any aggravation that the victim could have avoided. This obligation rests on the duty of good faith (art. 1375 CCQ).

Nature of the obligation. The duty to mitigate (obligation de minimiser les dommages) is an obligation of means (obligation de moyens), not of result. The victim must take the measures that a reasonably prudent and diligent person would have taken in the same circumstances. The victim is not required to achieve any specific outcome.

Application in health matters. The victim is not bound to undergo treatments that carry a serious risk to health or life, nor treatments that would not be beneficial. The victim is, however, liable for any aggravation of condition resulting from an unreasonable refusal to follow prescribed treatments that present no appreciable risk.

Application in defamation matters. A person who is the victim of defamatory statements may face the objection that no public response was made or that no retraction was sought from the author. This failure may affect the quantum of the indemnity.

Burden of proof. It falls to the debtor of the obligation to make reparation to prove that the victim failed to mitigate. The court may then reduce the indemnity or refuse to compensate the avoidable aggravation.

Conduct of the Person Causing Injury

Even where the defendant's conduct is faulty, certain circumstances allow the defendant to set aside or reduce liability by invoking the absence of gross or intentional fault, a legitimate motive, self-defence (legitime defense), or provocation.

Absence of Gross or Intentional Fault (art. 1471 CCQ)

Art. 1471 CCQ grants a favourable regime to the person who comes to another's aid or who, in a disinterested spirit, gratuitously disposes of property for the benefit of another. Such a person is bound to make reparation for injury caused only if the fault constitutes a gross fault (faute lourde) (art. 1474 CCQ) or an intentional fault (faute intentionnelle).

Gross fault arises from abnormally deficient, even inexcusable, conduct displaying a complete disregard for the interests of others. It is distinct from intentional fault, which specifically targets the causation of injury and manifests a deliberate indifference to its consequences.

Example. A person of considerable weight attempts to rescue a child trapped at the bottom of a well by sliding down a rope without verifying whether the rope can support the load. The rope breaks, the rescuer falls on the child, and the child's injuries are aggravated. The failure to check the rope's strength constitutes a fault, but the court must determine whether it reaches the threshold of gross fault. If, by contrast, the rescuer had struck the child to suppress the child's cries, that act would constitute an intentional fault.

Legitimate Motive (art. 1472 CCQ)

Art. 1472 CCQ permits the person who discloses a trade secret (secret commercial) to escape liability by proving that considerations of general interest (interet general) commanded the disclosure, for example on grounds related to the health or safety of the public. The scope of this provision extends to unfair competition (concurrence deloyale) and encompasses secrets relating to the high toxicity of a product in free circulation as well as secrets concerning the discovery of an effective treatment for a disease.

Self-Defence

A person who causes injury while defending against a threat may invoke self-defence (legitime defense) to obtain an exemption from liability or an apportionment. Four conditions govern this defence:

The defendant had reason to believe that person or property was threatened. Proof of an actual threat is not required; a reasonably apprehended threat suffices.
The force used was necessary and responded to an imminent threat.
The force was proportional to the threat.
The act was spontaneous and instinctive, resulting from a natural reflex. The person must not have had the time or the opportunity to gauge the impact of the act.

Self-defence must be distinguished from vengeance and from the act of taking justice into one's own hands. The standard of evaluation is that of a reasonable person placed in the same circumstances.

Provocation

The court may take into account the provocation of the victim in evaluating the obligation to make reparation for injury caused during a physical or verbal altercation.

Conditions. The person invoking provocation must prove (a) that control was lost as a result of an incident occurring immediately before the act, (b) that the reaction corresponds to that of a reasonable person placed in the same situation, and (c) that the reaction was not disproportionate to the provocation.

Limits. A mere breach of propriety or an invitation to fight does not constitute provocation. Outrageous or insulting words that cause a person to lose composure may, however, be characterised as provocation. A response involving excessive force neutralises the defence. The court may attribute a share of liability to the victim under art. 1478 CCQ, without necessarily finding that the victim was the author of his or her own misfortune.

Other Exculpatory Elements

Beyond the conduct of the parties, certain external events may destroy or limit the defendant's liability: superior force, the novus actus interveniens, and the fault of a third party.

Superior Force (art. 1470 CCQ)

Art. 1470 para. 2 CCQ defines superior force (force majeure) in the following terms:

Superior force is an unforeseeable and irresistible event; an extraneous cause presenting those same characteristics is assimilated to it.

The Civil Code of Quebec merged the former notions of fortuitous event (cas fortuit) and superior force under this single definition.

Conditions. The event must be both unforeseeable (imprevisible) and irresistible (irresistible). An event that was normally foreseeable in the circumstances, or whose occurrence could have been avoided by appropriate means, does not qualify as superior force. The event must prevent the performance of the obligation in an absolute and permanent manner.

Recognised examples. The case law has qualified as superior force certain natural events (torrential rain) and certain human interventions (armed robbery, as opposed to simple theft). In Cie Miron c. Brott, an employee of the company Miron severed an underground cable, causing a power outage. Electricity could not be restored for ten days because of a lawful strike by Hydro-Quebec employees. The Superior Court (Cour superieure) characterised the lawful strike as superior force for Hydro-Quebec, a finding not challenged on appeal.

Prerequisite: irreproachable conduct. The defendant who invokes superior force must demonstrate conduct that is beyond legal reproach. As Justice Nichols observed in Coderre c. Allard: "In matters of fortuitous event, there are no half-measures. Either it is a fortuitous event or it is not." If the evidence reveals that the defendant was personally negligent, the defence of superior force fails.

Effect. The occurrence of an event qualified as superior force completely exempts from liability the person who would otherwise be bound to make reparation.

Novus Actus Interveniens

The novus actus interveniens (new intervening cause) refers to a fact occurring after the initial fault and severing the causal link between that fault and the injury.

Conditions. Two elements must be present: (a) a complete cessation of the link between the initial fault and the injury; (b) the re-initiation of a new causal link by reason of an act bearing no direct relationship to the initial fault. The Quebec Court of Appeal (Cour d'appel) has specified that the second fault must be of a gravity at least equal to, if not greater than, the first in order to justify the severance.

Distinction from concurrence of faults. Where two successive and independent faults cause the same injury, they are treated in principle as contributory and give rise to an apportionment of liability. Severance of the causal link (novus actus) will be recognised only if the second fault is of sufficient gravity to eclipse the first. Otherwise, both faults are treated as causal, and liability is apportioned according to their respective gravity.

Case illustration. In Hydro-Quebec c. Girard, a passerby was seriously injured by an electric wire hanging along a road. Even on the assumption that Hydro-Quebec had been negligent in failing to install the most advanced protective device on its network (initial fault), the Court of Appeal, per Justice L'Heureux-Dube, concluded that the reckless conduct of the passerby, who had approached the wire imprudently, constituted a novus actus interveniens severing any causal link between Hydro-Quebec's negligence and the injury.

Fault of a Third Party and Solidarity (art. 1526 CCQ)

Exemption through fault of a third party. If the defendant demonstrates that the injury was caused exclusively by the fault of a third party who was not sued, the defendant may obtain a complete exemption. Where both the defendant and the third party committed contributory faults, liability is apportioned.

Solidarity among co-authors (art. 1526 CCQ). Where several persons participate in a collective faulty act, the rule of solidarity (solidarite) provided by art. 1526 CCQ applies: each co-author may be held liable for the entirety of the injury suffered by the victim. The defendant condemned to make full reparation then holds a recourse in warranty (recours recursoire) against the other co-authors for their respective shares.

Protection of the victim. The fault of a third party, whether sued or not, never reduces the indemnity to which the victim is entitled. In Boucher c. Rousseau, the owner of an immovable was held liable for the entirety of the injury suffered by a young child, even though the child's parents, who had not been sued, were found at fault with respect to supervision. The victim receives full compensation; the defendant may then exercise a recourse in warranty.

Distinction between fault of a third party and fault of the victim. The fault of a third party (for example, the parents of a child victim) may not be imputed to the victim to reduce the indemnity. Where the victim is a child and the parents contributed to the injury through a failure of supervision, the child's indemnity remains whole.

Exclusion or Limitation Notices

The Quebec legislature strictly circumscribed the possibility for a person to unilaterally escape the obligation to make reparation.

Art. 1474 CCQ: public-order limits. A person may not exclude or limit liability for material injury caused by intentional fault or gross fault. Any clause excluding or limiting liability for bodily or moral injury (prejudice corporel ou moral) is null. The Court of Appeal has confirmed that this principle is of public order (ordre public).

Art. 1476 CCQ: unilateral notices. A simple notice (affiche, sign, adhesion clause) may not exclude or limit the obligation to make reparation for injury caused by the fault of its author. The legislature recognises, however, that such a notice may serve as a denunciation of danger (denonciation d'un danger). A person who becomes aware of the notice is then bound to take appropriate measures for personal safety. If the person disregards the warning, that conduct may constitute a fault within the meaning of arts. 1477 and 1478 CCQ, giving rise to an apportionment of liability.

Illustration. A municipality that owns a landfill posts a sign disclaiming all liability. An adolescent enters the site and is injured. If the municipality is found at fault for failing to fence the site adequately, the sign does not relieve it of the obligation to make reparation (art. 1476 CCQ). The sign may, however, constitute a denunciation of danger, and the adolescent's decision to ignore the warning may be taken into account in the apportionment of liability (art. 1478 CCQ).

Further illustration. The owner of a building posts a notice reading "Snowmelt and icicles / Danger." This sign warns passers-by of the possibility that icicles or accumulated snow may detach from the roof. A person informed of the danger is bound to verify the absence of imminent risk before proceeding. Failure to do so may ground a finding of contributory fault (art. 1478 CCQ). If, however, the owner of the building took no measures to prevent falling icicles and did not establish a safety perimeter in the event of imminent danger, the notice neither exempts the owner nor limits liability (art. 1476 CCQ).

Practice Checklist

Fault of the victim (art. 1478 CCQ)

Is the victim endowed with reason? If not, no apportionment is possible.
Did the victim's fault contribute causally to the injury?
Is the victim's conduct sufficiently reckless to constitute a novus actus severing the causal link?
Assess the respective gravity of the faults to fix percentages of liability.

Assumption of risk (art. 1477 CCQ)

Was the risk that materialised normal and inherent to the activity?
Did the fault of a third party aggravate the risk beyond the normal level?
Did the person responsible for the activity have a duty to inform the victim of unusual risks?
Verify whether the rescue doctrine may be invoked.

Duty to mitigate (art. 1479 CCQ)

Did the victim take reasonable measures to avoid aggravation?
Did the refused treatments carry a serious risk to health or life?
Has the debtor discharged the burden of proving the failure to mitigate?

Superior force (art. 1470 CCQ)

Was the event unforeseeable and irresistible?
Has the defendant demonstrated legally irreproachable conduct?
Did the event prevent performance in an absolute and permanent manner?

Novus actus interveniens

Was there a complete cessation of the initial causal link?
Is the second act unrelated to the initial fault?
Is the gravity of the second fault at least equal to that of the first?

Solidarity and recourse in warranty (art. 1526 CCQ)

Did several persons contribute to the same injury?
Identify the co-authors and establish their respective proportions of fault.
Plan the recourse in warranty against co-authors who were not sued.

Exclusion notices (art. 1476 CCQ)

Does the notice concern bodily or moral injury? If so, it is null (art. 1474 CCQ).
May the notice serve as a denunciation of danger within the meaning of art. 1476 CCQ?
Did the person who received the notice take the required precautions despite the warning?

Glossary

Apportionment of liability (partage de responsabilite): distribution of the compensatory burden in proportion to the respective gravity of the faults (art. 1478 CCQ).
Assumption of risk (acceptation des risques): the fact that the victim assumes the normal and inherent risks of an activity in which the victim participates voluntarily (art. 1477 CCQ).
Contributory fault (faute contributive): fault of the victim that contributed to the occurrence of the victim's own injury, giving rise to apportionment (art. 1478 CCQ).
Duty to mitigate (obligation de minimiser les dommages): obligation of means imposed on the victim to take reasonable steps to prevent the aggravation of the injury suffered (art. 1479 CCQ).
Exclusion notice (avis d'exclusion de responsabilite): unilateral notice by which a person attempts to escape the obligation to make reparation; ineffective as such, it may serve as a denunciation of danger (art. 1476 CCQ).
Extra-contractual civil liability (responsabilite civile extracontractuelle): the obligation to make reparation for injury caused outside a contract (art. 1457 CCQ).
Fault (faute): failure to meet the standard of conduct of a prudent and diligent person, assessed objectively (art. 1457 CCQ).
Gross fault (faute lourde): recklessness, imprudence, or gross negligence (art. 1474 CCQ).
Intentional fault (faute intentionnelle): conduct deliberately aimed at causing injury to another person.
Legitimate motive (motif legitime): ground of exemption available to the person who discloses a trade secret in the general interest (art. 1472 CCQ).
Novus actus interveniens: a new intervening act that severs the causal link between the initial fault and the injury, exempting the author of the first fault.
Provocation: conduct of the victim capable of attenuating the liability of the person causing injury when it triggered a loss of self-control.
Rescue doctrine (acte de sauvetage): theory recognising the rescuer's right to claim reparation for injury suffered while coming to another's aid, provided the intervention was necessary and reasoned.
Self-defence (legitime defense): ground of exemption based on the necessity of protecting oneself against an imminent threat, on the condition that the force used was proportional.
Solidarity (solidarite) / joint and several liability: obligation by which each co-author of the injury is bound to make reparation for the entirety of the damage (art. 1526 CCQ).
Superior force (force majeure): an unforeseeable and irresistible event exempting from all liability (art. 1470 CCQ).

References and Further Reading

Civil Code of Quebec: arts. 1375, 1457, 1470, 1471, 1472, 1473, 1474, 1476, 1477, 1478, 1479, 1525, 1526.
Case law cited: Cie Miron c. Brott; Coderre c. Allard; Hydro-Quebec c. Girard; Boucher c. Rousseau.
Doctrine: Baudouin, Jean-Louis; Deslauriers, Patrice; Moore, Benoit, passages relating to exemption from liability, defences, and apportionment of liability in extra-contractual matters.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.

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