Duhaime's Law Dictionary


Last Clear Chance Doctrine Definition:

A principle of tort law which requires an individual to take every action at hand to avoid an accident where peril to another human being is otherwise imminent.

Also known as the humanitarian doctrine.

In Anglo-Newfoundland Development, Justice Shaw wrote:

"And I take the (last clear chance) principle to be that, although there might be ... fault in being in a position which makes an accident possible yet, if the position is recognized by the other prior to operations which result in an accident occurring, the author of that accident is the party who, recognizing the position of the other, fails negligently to avoid an accident which with reasonable conduct on his part, could have been avoided."

In the United States of America, as Justice Garfield of the Supreme Court of Iowa noted in Winegardner:

"[T]he doctrine of last clear chance ... sometimes called the humanitarian doctrine proceeds along the theory that notwithstanding the negligence of an injured plaintiff, if defendant knows of the peril in which the plaintiff has placed himself, it is defendant's duty, after acquiring such knowledge, to avoid the one accident if that can be done by the exercise of ordinary care.

"For a breach of such duty which results in injury there may be recovery.

"The doctrine applies where a defendant is aware of plaintiff's perilous position in time to have avoided the accident but fails to do so.

"The doctrine refers to negligence after negligence....

"It is sufficient if peril was so imminent that to a person of ordinary prudence the infliction of injury would seem probable if proper effort were not made to avoid it."

In Canada, because of the presence of statutes which alow the court to apportion liability between the plaintiff and defendants of a tort action, the doctrine is no longer well-received. As noted by Justice Davison of the Nova Scotia Supreme Court in Gaudet v Doucet:

"Even if it could be said that the last-clear-chance doctrine is alive and well in Nova Scotia, it would be a rare occasion that a court, in considering circumstances surrounding a collision involving fast-moving motor vehicles, would find a clear demarcation between the conduct of two negligent actors to the extent that one would be exonerated from the consequences of his conduct. In my respectful view, the better opinion is the doctrine has no application in jurisdictions with apportionment legislation."

Davison also noted the concurring obiter dictum of Justice Dickson in the 1977 Supreme Court of Canada case, Hartman v Fisette.

REFERENCES:

  • Anglo-Newfoundland Development Co. v. Pacific Steam Navigation Co. 1924 A.C. 406
  • Gaudet v Doucet 29 M.V.R. (2d) 55, 101 N.S.R. (2d) 309, 275 A.P.R. 309
  • Hartman v. Fisette, [1977] 1 S.C.R. 248; 8 N.R. 301 and 66 D.L.R. (3d) 516
  • Winegardner v Manny, 21 N.W. 2d 209 (1946)

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