AVOIDING LAST CLEAR CHANCE

Authors

  • DONALD G CASSWELL

Abstract

At common law contributory negligence on the part of a plaintiff was a complete bar to recovery. Courts attempted to mitigate the potential harshness of this rule by creating the so-called last clear chance rule. The rule however was 'capricious, unpredictable and often unfair in operation': In comparison, Quebec law authoritatively accepted faute commune in 1899 and since then Quebec has remained happily untroubled by either of the common law's difficult progeny-the contributory negligence bar or last clear chance. All common law provinces and both territories have abrogated the contributory negligence bar to recovery by enacting apportionment legislation. However, only two provinces have similarly abrogated last clear chance. In some provinces and both territories, there is legislation specifically retaining last clear chance. In other provinces, whether last clear chance survived the enactment of apportionment legislation must be answered entirely at common law. Given that abrogating legislation does not appear forthcoming in most provinces and territories, the author argues that judicial avoidance of the last clear chance rule, even in those jurisdictions with legislation specifically retaining it, is required.

Keywords:

Tort Law

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Published

1990-03-01

Issue

Section

Legal Commentary

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