form of w Affecting L ab I n Hu band and W fe

and R lated I uranc Contract

.AMI! � !mio Euz: IETII& e.$

CAP� I

PROPOSALS FOR

REFORM OF THE LAW

AFFECTING LIABILITY BETWEEN

HUSBAND AND WIFE

AND

RELATED INSURANCE CONTRACTS

Report to the Attorney General

from the

Law Reform Commission of Saskatchewan

November, 1979

The Law RefiJrm Commiss;on of Saskatchewan was established An Act to Establish a Law Reform Commission proclaimed in November, 1973, and began functioning in February of 1974.

The Commissioners are:

PROFESSOR RONALD C. C. CUMING,

LL.M., Chairman

MR. GEORGE D. 'r'LOK Q.C.

MS. M.A,.RJORIE A. GERWING, B.A., LL.B.

Kenneth P. R. Hodges is the Research Director.

LLB,

l'he Legal H.esearct (Jfficer:> are Harris Wint:i_terg and -�vlichae� Finley. The secretaries are Sandra Ritchie and Pat Harasymchuk.

The Law Refurm Commission Act

The cornmiss;on shall tals•� and of the :?n;vince, ;r:<::luding �tatute , commcn law <md decisions, w1th a view to its systematic development and reform,

the dim in ali m of >malie� repeal >[

:"bsolet: .• and unnecesszry enactnwnts, . md simplification and modernization of the law, . . .

The Commission offices are located at 22 Third Avem1.:: North, Saskatoon, Saskatchevnm. S7K 2H6

ISSN 070 l-6948

TABLlt: OF CONTENTS

Letter of TransmittaL ... . ............................... ,. .......................... ... ......................................................................... 5

Introductory Note ........ ..... . ..... . .. . .. . .. . ...... . . . . .... . ... .. ................... . ................ ............ . . ........ . ....... ............ . . ........... . ... . ... .......... 6

PART ONE -INTERSPOUSAL TORT IMMUNITY ... .. . .. .. ......... . .... . .. . . ...... ... . .... . . .... .. . ......... ......... .. . . . .......... . ......... 7

I. INTRODlJCTION .. . .... .. . .. .......... . . .. ... ...... . ..... ........ .. . ..... ........ . . . ..... . ....... . .... ... ............. ................... ........ ....... ........ . .. 7

JL THE LAW OF SASKA TCHEW A�... ..... ............ . .. .... ..... .. . ,. . .... . . ... . . ............ .. ..... ........ . . ......... . . ............. 7

IlL INTERSPOUSAL TORT IMMUNITY REFORM . .. .. .. . ...... . .... .. . .... . ..... . . ... . . .......... .. .. . ...... . .... ... . ... ....... . 7

A. England .... ....................... .... ...................................... . ............................... ........................................................... 7

B. Canada . ................. . ........................ .. ..................... ., . .. . .. .. ... ............ ........... ......... ....... . ........... .... ......... .. � ............ . ,,,. 7

C. Other Commonwealth Jurisdictions ...... ..... � ...... ... .. .. .. ....... ......... �············································ ......... . ................ 8

IV. CONTRIBUTORY NEGLIGENCE ................... ....... ... . ......... . .... � . ............ ... .. ................... ............ .... ............ ....... 8

V. CONCLUSIONS .. . .. ................. .. ....... ... . . . ... . . . ...... ... .... .. . .. ........ . . .... ..... ......... . .... .. ... .... .. ... .... .......... ...... .................. ... . 8

VI. RECOMMENDATIONS,, ............... , .. .......... . . ............ ...... . .... ... . ....... ... ... ........... .... . . . .......... . ............. � . . . .. 9

PART TWO-- BARS TO DAMAGE RECOVERY IN INTRAFAMILY TORTS . . .......... ...... ... , ........................... lO

I. INTRODUCTION ..... ..... ....... ............................... ........ .. ... . ............... ...... ... ........ .. .... ......... .. ............ ............. ......... . 10

II. THE LAW IN SASKATCHEWAN ........ ............ .. ....... ............. .. .............. ........... ...... � ..................... ..................... 10

IIL LAW REFOR!¥1 IN CANA.DA .. . . ............ . . ..... ..... . .. ... . ....... . .......... ................... .. . ... .... .. .... ............. ... .................. 10

IV. JUSTIFICATION FOR THE EXCLUSION OF FAMILY MEMBERS AS PASSENGERS . ................. .. .. � . . .. .. . ...... . ............... � . . ............ ... .. ......... ..... ............ ....... .. II

V THE EXCLUSION OF ANY PERSON INSURED BY THE CONTRACT . . ......... .. ... . . . ........ ... ... ...... . .. .. . .. , .... . ... . .. . . . � ............ . . ......... ......... ............ ......... . .. , ........................... II

VI. R.ECOMMENDATIONS . . ....... . . . .. ........ . ..... .. .. .. .... . . . ... .. ................ ... . .............. ...... . ..... .... . ...... .... ...... . . ............... ..... 12

4

Law Reform Commission of Saskatchewan

To The Honourable Roy J. Romanow, Q.C.

;jttorney GenEral for Saskatchewan

De,:zr Mr. A,.

Saskatchewan Provincial Office Building 122 Third Avenue North Saskatoon, SlK 2H6

664-6

As pa.rt of its F<LTUily Law e ct the Commission has reviewed the

c ommon law doctrine of interspousal tort inmunity.

Tentati

abolition

f:fect to

s. 200 (i) of

Proposals releas€.,z:i

doctrin e in order

al:)Oli tion propose

The SaskatcheuJan .I''l!Burance

:1arch, r £�orrn:nem'

qi ve some £:\c.br;ta11tial

F;) recommen<.l::r:' repeal

Act;,

In response to the Ten tative Proposals, Mr r�rdon Bale, Associate

�d.::ector of �lberta Inst:5t.ute of �esearch Reform, WJ :.uggesting ::he recc:;·,"1'1e:r.;:c:t�ons gc> step furt.be:: and inc}

s. 200 (b This waE. by �,l:llmission

e:rr10cdied .l.r. this, its fin al report.

The Commission wishes to thank all those who have assisted in any

way and Particular, Mr. John Green, 0 .C. G�c;meral Manager of Saskatc hewan

�cJv�ernment James A. £fin, Q. ·�rister ;::>licitor

':h of whorrt reque::::n ·· r:::vided '\"a. advice 1ddi tion ; .. ,as at

sugges f Ms Ca:;·:: ve Directr:'.. the :·.:c;"ewa..TJ.

Huma11 Rights Comrnissio n that Ms Linda Duncan, Editor, Law Col',mm, Branahing Out, a Car ... adian for women, wrote to t1h e Commission pointing out

the need for review of the immunity cloctrine.

Pursu.cmt ··

:;ubmi ts thi. .::· The Lo:J..L"�

ec c tmenda tion:::

Comrrri: olct, th.:• :�:r;;.u.ss�on r c ommon fk)ctrine

of int.erspou.:.a.l t:Yrt irrtllu.nity and relat<::d lJ"!S1J.rance cor:rt.Lacts.

Respectfully submitted this 15th day o:f November, A.-D' /

--- ----

... �,.,.-·· __. .. ¢·�· . i

MarJorJ.e A. Gerwi:ng, Commissic::mer 5

INTRODUCTORY NOTE This is a final report based on the Commission's "Tentative Proposals for Reform of the Law Affecting Liability Between Husband and Wife and Related Insurance Contracts" released in March !979. The recommendations herein are identical to those in the Tentative Proposals with the significant addition of a recommendation that section 200(b) (ii) of The Saskatchewan Insurance Act, R.S.S. 1978, c. S-26 be repealed.

6

PART ONE - INTERSPOUSAL TORT IMMUNITY

I. INTRODt'CTlON

huerspousal tort immunity expresses a common law rule whereby in instances of civil wrongs,' in which one spouse suffers personal injuries as the result of the conduct of the other/ no civil proceeding may be taken,

The effect of the immunity is that spouses are denied adjudication in exactly those circumstances where strangers. are given an opportunity of resolving their disputes, There is no longer any logical basis for the proposition that in instances of tortious conduct the spousal relationship is sufficient reason for denying access to the courts. If, as Dean

stated,3 "the purpose of the law of toris is to adjust ... losses and to afford compensation for injuries sustained one person as the result of the conduct of another", then interspousal tort immunity works at cross-purposes in that

neither are losses adjusted nor compensation afforded for sustained by one spouse as the result of the other's tortious conduct.

II. THE LAW OF SASKATCHEWAN

Saskatchewan received the laws of England as they existed on July 15, 1870 insofar as such laws were app!icable.4 Since interspousal tort immunity was the law of England on that date, so it became the law of Sas­

katchewan. Saskatchewan's first married woman's property legislation declared that:

no action of tort shall be commenced between husband and wife except an action in respect of rights in, to or out of real or personal property5

The common law rule of interspousal tort immunity is stilt the law of Saskatchewan.6

III. INTERSPOUSAL TORT IMMUNITY REFORM

A. England Interspousal tort immunity was abolished in 1962.7 The Act declares that each of the parties to a marriage has a

right of action in tort against the other as if they were not married, subject to two qualifications; namely, 0) that where an action is brought during the subsistence of the marriage, a court can order a stay if it

appears that no substantial benefit will accrue to either party from the continuance of the proceedings, and

(2) that the action may also be stayed if it appears that the dispute can more conveniently be disposed of under the provisions of The Married Women's Property Act

B. Canada

In Ontario, The Law Reform Act, 19788 carried out the recommendations of the Ontario Law Reform Commission by abolishing the fiction that husband and wife are one9 and by abolishing interspousal tort immuni-

wrt is a species of civil •nJury or wrong ... A civ1l wrong is one which gives rise to civil proceedings . , .",Salmond, The Law of Tons, 16th ed,, !973.

'lmmunitv in tort between parent and child was never part of the common law. Fleming, The Law of Tons, 4th ed., 1971, at 596. 1Wnght and Linden, Canadian Ttm Law, Cases, Notes and Materials, 6th ed., 1975, at I. "The .North· West Territories KS.C. 1886, c 50, ;; ! l as continued by The Saskatchewan Ao. 4-5 Edward VII, c.42. s. 16. 'The Married Woman's Act, S .S. 1907. 18, s.l\(2)

Mamed Persons' Property Act, R.S.S. 1978, c. M-6, s.8(2). 'The Law Reform (Husband and Wife) Act, 1962, 10 & II Eliz. II cA8, s.l. •s.o. 1978, c.2. •Ibid, s.65: ( l) For all purposes of the law of Ontario, a married man has a legal personality that is independent, separate and distinct from that of

his wife and a married woman has a legal personality that is independent, separate and distinct from that of her husband. (2) A married person has and shall be accorded legal capacity for all purposes and in all respects as if such person were an unmarried per-

'''1 bid. (3}(a) each of the pcuties to a marnage has the like right of act1on in tort against the other as if they were not married.

7

In Manitoba, the Manitoba Law Refvrm Commission's11 recommendation £hat Interspousal tort immunity should be abohsht::d fc,rmed basis for the immuni•.y'' legislative abolition.'

The immunity has been abolished in Prince Edward Island. 11 Abolition has also been recommended m Alber· ta.

C. Other Commonwealth Jurisdictions

Interspousal tort immunity has been abolished in New Zealand, Tasmania, Queensland, Victona and the Australian Capital Territory.15

IV. CONTRHlUTORY NEGLIGENCE

Canadian common law has contributory negligence legislation. Where a married person is injured as result of the negligent conduct of the spouse and another, the legislation allow< the injured person to recover only those losses attributable to the negligence of the other tortfeasor, e·,en though the negligent spouse has insurance covering the liability:

In an action founded upon negligence and brought ft"lr damage loss resulting from bodily injury to or the death of a married person, where one of the persons found to be negligent is spouse of the marned person, no damages, contribution or inderanity shaH be recoverable for the portion of damage loss caused by the negligence spouse, and the pcmwn of !he loss or damage so caused the negligence of the spouse shall be determined although the spou<,e is not a party to the

VV!ih the abolition of interspousal t:.wt immunity, this sectwn unnecessary and should be

CONCL tTSIONS

One reservation that has been is that the abolit10n of tort immunit' would inevitably lead to b�rdensome amounts of trivial !.nigation. While it is impossible to forecast with any precision the amount of

1erspousal tort litigation that will ensue as of the iel.munity's abolition, ;;�<perience ofjurisdi,:tK·uS whi•;';h :1ave to date done so dc•es not indicate any appn::ciable increase.

A'l(>ther argument put forward for the interspous«l immunity is that to permit litigation would he to the harmony inherent in the bond. Certau!ly m the case of intentional torts as assault and false imprisonment this argument is absurd. In th.; case of negligenc..e is cr,vered insurance, imly beneficiary of the interspousal ;mmunity is the insur::;;'"''e company:

The rule operates no longer tl.' pr·::serve domestic but only for the be;:efit of ;nsurance 17

Tl-:is was never the intent of interspousal tort immunity. A further argument advanced for the retention is that to allow recuvery is only to increase famil'

fumts, However, where the loss is co;c;red by insurance, agam the onh· beneficiary of this P'";itwn is the insurer: Why should the insuranc:: ccmpany benefit in thico way a1 the expense of tht� vnfe? In such ctrcumstar:ce:, it is of C:'urse possiole to contend that damages paid wife fonL, in general, part of the funds; an,} that, therefore, 1f suit permitted the result w:)uld bt: allow a husband tc benefit. as a result of_his own tort. Rut this reasoning may have &pplicaW.J21 to d�ma�?� awards

m analogous sttua!wns, to members of the In any event to so arr�ue 1s &o.,,e the fa�t that dama�e" ar� a:var kd to com}!Cnsate .the HlJured wife; and C�)mP.e;;�ation n�t

be demee on Hle bas1s tnat as a fact cf 1amdy hfe, an accreULn k· the tarmly funds may beneht both spouses. :s

�where the loss is uninsurable. then premmably the parties will make a reasoned decision whe•her or not to pu;sue their remedies by way of The problem with mterspcu:>ai tort immunity is it take,· this decision 3way from the parties, 0b··iously at the "f, at least some, otherwise valid daims.

11Mamtob;. Law Reform Commission. '"lt?rspousal lm;,,wuty m Tort !072. 12An Act to Amend The .'•.farried Won,en's Acl, S.M. s.l: A husband and w1k ;,ave the scc'''t right to sue the other fo" J.s if

i.hey were not married

Reform Act, S.P.E.I. 1978. c6, s.60.

:.aw Research and Reform fhe Umve,· 'ty nf Alberta, Report l'h Inter-Spousal Turl lmmun' April. supra, n.2 at 593.

'6The Contributory Neg!icence Act, RS S 197il, c. C-31, s.9. "'�•-illiams, "Some Reforms Law of Tort" ( \1cdern Law fceview 10!. ·"Me� des da Co-;ta. "Husband and Wife in the Law Torts"', m Linden, St:!dies in C1'1c:dian Tcrl Law, !9Ml), 47° at 473.

8

Finally, it is said that to permit interspousal tort litigation is to encourage collusion and fraud. This will be considered in the next Part on insurance.

Jnterspousal tort immunity has been abolished in Jamaica, New Zealand, Tasmania, Queensland, Victoria and the Australian Capital Territoryl5

VL RECOMMENDATIONS

The Commission recommends that interspousal tort immunity should be abolished. To achieve this: ( 1) Section 8(2) of The Married Person's Property Act, R.S.S. 1978, c. M-6 should be repealed; (2) The Married Persons' Property Act, R.S.S. 1978, c. M-6 should state that husbands and wives shall

have an equal right of action in tort against each other as if they were not married; and

(3) Section 9 of The Contributory Negligence Act, R.S.S. 1978, c. C-3 1, should be repealed.

9

PART TWO- BARS TO DAMAGE RECOVERY IN

INTRAFAMILY TORrfS

I. INTRODUCTION

A fanuly member (daughter, son, husband wife) who is injured, or dies, while a passenger in an insured family member's automobile and as a result of the insured's negligence, is barred by statute in most Canadian common law jurisdictions from recovering damages from the insured's insurer. Since the greatest number of interspousal tort actic,ns will no doubt arise as a result of automobile mishaps, 19 the abolition of interspousal tort immunity, if it is to be of any practical significance and not cosmetic only, must apply to automobile passengers.

ll. THE LAW IN SASKATCHEWAN

Saskatchewan has established a compulsory partial no-fault insurance scheme underwritten by a pubiic agency.20

This type of insurance coverage is not dependent upon a judicial finding of ton liability so that the abolititm of interspousal tort immunity will be of no effect. The Act does not extend general insurance coverage to passengers.21 although any gratuitous passenger, including a spouse, injured in a single-car accident has rights of recovery restricted to no-fault benefits under the A ct. 22

However, the situation is different under a "passenger hazard" policy whose terms are regulated by The Saskatchewan Insurance Act.23 Section 200(b)(i) of the Act contains a blanket exclusion to which all policies are sub­ject

The insurer is not liable under a contract evidenced by a motor vehtcle liability policy for any liabili­ty:

(b) resulting from bodily injury to or the death of: the daughter, son, wife or husband of any person insured by the comract while being carried in or upon or entering or getting on to or alighting from the automobile.

This clause has been common to all Canadian insurance contracts and its effect is that an insurer is not liable under a motor vehicle liability policy to the owner or driver for any liability incurred as a result of injuries or death to the spouse of the owner or dnver.

There are two problems with the section's application that make it grossly unfair: L There is no bar to recuvery if the passenger and the owner/driver insured are not related; thus a wife or child

who suffers injury or death cannot recover from the husband or father's insurer but can from that of a neighbour; and

There ts no bar to recovery if the maimed or dead family member i� a pedestrian24 and nOI a passenger.

HI. LAW REF'ORM IN CANADA

The Ontario Law Reform Commission recommended that at the same time as interspousal tort immunity was abolished, section 214(b)(i) of The Insurance Act2' should be repealed. The �Family Law Reform Act. 1975 followed that recommendatiorL 26

·�--·-------��---

"flemmg, supra. n.2 at 5'H, fn.l2 that: "The most common inter-spousal wrt is tha.t a wife-pa�<;enger bewg injured in her hu,hand's car''.

""The Automobile Accident Insurance Act, R.S.S. 1978, c.A-35.

HJbid., s.39(l)(d). 22Jbid., Part II. "R S.S. 1978. S-26. "!his is based the as.·mmpt10n mterspou;;a! tort l1r:munity is ah-llished 25R.S.O. 1970, c.224, s.214(b)(i)·

The insurer is not liable under a mntrac! evidenced by a motor vehicle liab•lity policy f()r any liability ... !esu!ting fwm txxhh mjury the death ;Jf, (il the dzn.Jghter, sor., wife or huslcand of :.�ny persor; msured b; 'h'' ;;cmtrao .•;bile '�arried upon �;ntering getting

on to or alighting from the automobile ..

"S.O. 1975, -:4! s.5.

The Manitoba Law Reform Commission stated that to leave section 245(b)(i)27 intact after abolishing spousal immunity would leave one of the most significant sources of spousal litigation unaltered in a practical sense. There is no point reforming the law of spousal immunity in mtomobile cases if th� of the change is nullified by fnmrance Ad. 'lCh a change would �omewhat realm of immunity, would also the t:xclusion uf from covt'r:.u!e, but there reason to children different! spouses.28

The Commission went on to recommend of that section. Interestingly while the Manitoba Legislature abolished interspousai tort immunity, it did not repeal section 245(b)(i).

IV. JlJST!FIC\TION FOR nn<: EXCLUSl:ON

FAMU MEMBERS PASSENGl<:RS

The apparent rationale for the exclusion of family members from benefits as passengers is the fear that they will collude in order to defraud the insurer. Net only is this fear probably largely unwarranted but, in any event, to deal with it as a blanket exclusion from coverage is an example of "overkill". It overcomes any problems

collusion at too price, namel barring insurar;c;t. rf"covery in th,;se rases where then: 1;gligence a;ld collu�ton.

Courts are with the of cdlusion in many of litigatkm. ··;vcrce law, example, has always been sensitive to the problem collusion between husband and wife. The solution, however, has been not to deny all divorces but only those where collusion in fact exists.

It is often said that to extend insurance recover::'� !o family members as passengers would inevitably to an increase in insurance :-ates. Surely the of insuranre is to "pread the rosts of ':Iss and tu �inir-•7e the darnage

:,ndividuaJ. nffer injury. r :.an be no sc'CE.' tusufication fm "ovhich deny recovery merely because are spmtSi:;· < hildren of insured. the abolition i!,o:erspousal insm''W:<: w\li \hmle for pers ""'

suffered one spouse as a resuU of the other insured spouse's negligence all instances other than as a or as a person "insured by the contract".30 There is no merit in the that there is more likelihood cdlusion between spouses as passengers than between them driver and or as drivers separate automobiles.

equently, d;mitted that �::,"elusion from as passe> ·ght to be

v c FXCLUSIC �"'<ONTRA_T

Section �.OO(b)(ii) of The Saskatchewan Insurance .l.ct provides: The insurer is not liable l.m.;ler a f'4:Jmract tvidenc�d hv a motor uf"hic1e polir" for � ... v

frorn bode y to or the f: person irh:.:: the contc

by the oon'L.J.C?. ludes not oerson nam<:x1 , automobf, owned by, and 'hiih the consent 1he insured.11 driven by other spouse on occasion by insurer because ';ubsection li

.��le to make paym��t under

, ... �f the insured �'!Kmse is injured

c',assenger i ''l automotd: duld or L'!t' · ···. 'Y oe tmm:· but has nc ·· ;e under f policy. If in: .�al tort imr:· abolished ··hcse withouh •;vill be e1 'include

.. dw is not nv ,<G .. he ins�rec as the chi.tG neighbor liability i:n :overage b ..

.::c;;::.. cormdere;; ::..�:. •• ade ;:�,nd •t 1:. �-::Ci•·•��-�d that a� .;. ...... ��.;;. ,)f ft>;i.l.��• ..... actkal ':"'fft-..:t � hulition of i ';al tort im he ·cdied in should >F hed.

robile buun Th� i;; not liable 'ntract evidenr;,·,; a :rdtor vehicle

res:;lting from bod'!} .) or the deah daughter. SOC<, busband of any :nsured by the

on :o or alightir: automobile . the A bolitior usa! lmmunitt "'!--upra, ne:)te :, -,, WO V. B, s.l94.

for any

bile being ca nd ·.:ing

VI. RECOMMENDATIONS

The Commission recommends that (I) Section 200(b)(i) of The Saskatchewan Insurance Act, R.S.S. 1978, c. S-26 should be repealed.

(2) Section 200(b)(ii) of The Saskatchewan Insurance Act, R.S.S. 1978. c. S-26 should be repealed.

12