Little Fish in a Giant pond

Wednesday, January 09, 2008

The day lawyers have been waiting for!

Yes folks it's official, you can now sue just about anybody for just about anything, including your own criminal acts! It is a day that we in the legal profession have been waiting on for some time! In a recent decision, a Saskatchewan court decided that a young woman named Sandy Bergen, a self-confessed drug addict, was entitled to damages from her former drug dealer after an overdose of crystal meth put her into a coma and nearly killed her. I think I will follow the advice I received from a more experienced colleague a little while ago, and hold off on commenting on this particular case until I have read the actual decision, so for now I'm content to comment on some of the more general ramifications that this decision can have.

For starters, I think that the issue is far from decided. After all, this is a precedent setting case and it will almost definitely be appealed. As it makes its way up through the Canadian court system, it will doubtlessly create some interesting case law! It is really interesting to see how this will affect Canadian tort law.

We've all heard the urban legend of the burglar breaking into someone's home, slips on a toy, falling down the stairs and then successfully suing the homeowners. According to my first year tort law professor, this is a myth. You cannot sue someone for injuries sustained while trespassing on their property, unless of course the injuries occurred as a result of some kind of booby trap. At first glance, the decision in the Bergen case appears to fly in the face of this principle. After all, someone who buys drugs for the purpose of personal consumption knows or ought to know full well that drugs are bad for them. On the other hand, manufacturers and distributors of legal products are held responsible when their defective products cause physical harm to their consumers, why then should the same not be true for manufacturers and distributors of illegal products?

Obviously the situation is not that simple, after all, we as a society don't want to condone the drug user's illegal conduct. But even though I believe that abusing one's own body with drugs is wrong, I think that profiting off of the suffering of others who are too weak and sick to properly understand what they're doing to themselves is even worse, and drug dealers should not be allowed to get away with the harm that they do to their clients. So as crazy as this must sound, I think I actually agree with this decision! I can't say whether or not it was correctly applied in this case, but the idea of allowing a drug addict who has suffered damages as a result of his or her drug dealer's negligence does not sound so crazy to me. Certainly, the degree to which the addict was dependent on the narcotics in question should be something considered by the trial judge when determining the amount of damages that are owed, but I see no reason why the drug dealer should be completely absolved of all responsibility.

There are a few major problems though. For starters, there are a lot of drug addicts out there, and chances are a lot of them have suffered as a result of their drug dealer's actions. If we open the flood gates, who knows how many new cases will come forward? The courts may not be able to handle the deluge. This is definitely a matter that the courts will be considering as part of the Cooper/Ans criteria, which is used to determine whether a particular kind of act is considered negligence.

There is also the matter of figuring out where to draw the line. Can a drug addict sue only when they suffered because there was something "wrong" with the drugs that they bought? Or can they also sue for damages incurred as a result of having overdosed through their own error or carelessness? What about the other negative affects that are caused by drug abuse such as the breakdown of marriages, difficulties holding down a job, etc?

Another problem of course, is enforceability. When we are talking about hard core drug traffickers, with large bank accounts, it is not so hard to enforce judgments in favour of the plaintiff, since their assets are much easier to trace, but it's not so easy to get money out of someone who keeps all of their money in cash form, rolled up in a big wad under their mattress next to the big handgun.

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  • Yay personal responibility is a thing of the past! it's an NDP wonderland now. I sure hope everyone is disgusted with this case.

    By Anonymous Manuel, at 5:19 AM  

  • Care to develop on that little rant a bit more Manuel? Don't you think that drug dealers are at least partially responsible for what happens to the people they sell drugs to?

    By Blogger Fish, at 5:44 AM  

  • Of course they are!! I love it! It's about time they start paying -literally- for what their chosen profession is doing to other people. KARMA RULES.

    By Anonymous Blythe, at 8:07 AM  

  • It's a sign...that the apocalyps-ino is upon us....

    By Blogger Marc-AndrĂ© Mongeon, at 12:11 PM  

  • Thanks for the comment Blythe! You too MA. lol

    By Blogger Fish, at 12:32 PM  

  • Hummm, I'm for and against this decision. Its hard to take a side since even tought it does put responsability on the trafficker for the merchandise they sell, the drug user is still at fault for using that crap.

    I mean, should we start applying the Consummer Act to traffickers? Should we force them to pay taxes? LOL

    Drug users, should we charge them more taxes too for using up public health care ressources uselessly?

    Ok, the age old questions - drugs are a vice or a social problem?

    I dont know which side to take. I dont agree a drug user should be allowed to sue for "merchandise" that will hurt him no matter what (and there is also no quality control on drug), BUT I do agree traffickers should personally be held accountable if a customer suffers because of them.

    go figure, another mind bending question of what's right, what's wrong.

    By Anonymous Walleye, at 11:37 AM  

  • oh yah, i guess that's why we have a criminal system...

    By Anonymous Walleye, at 11:38 AM  

  • I would thinks since the product/business falls outside the legal system that you would not be able to invoke the legal system in any way, shape, or form to regulate it.

    I mean honestly, if you hire a hitman and he botches the job are you gonna take him to court and sue to get your $ back due to non-delivery of product?

    If you commit a robbery and your driver runs out of gas, can you sue him for professional negligence?

    Bottom line - those engaged in illegal activity cannot call on the justice system to intervene in said illegal activities - its an oxymoron (or something).

    That being said, being a criminal does not preclude you from the normal protections of the justice system - it's just that those protections do not extend into the domain of criminal/illegal activity.

    By Blogger Darcy, at 8:18 AM  

  • I should mention that I've got an update on this matter. I've had the chance to learn a little more about it and I've discovered that it wasn't actually a judgment in Bergen's favour.

    What happened was that Bergen filed a lawsuit, the dealer defended, but refused to give the name of his supplier and so, rather than face contempt of court charges, he withdrew his defence and Bergen won by default.

    Just the same, even though this does not create a precendent, it still opens the door for the question to be brought up later as others are bound to draw inspiration from this case.

    By Blogger Fish, at 11:48 AM  

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