69 In Coleman v Eddy Potash Inc 905 P 2d 185 (1995), the Supreme Court of New Mexico declined to recognise negligent spoliation of evidence as a tort, but did recognise the tort of intentional spoliation of evidence, based on the approach that one who intentionally causes injury is subject to liability to the other for that injury, if his or her conduct is generally culpable and not justifiable under the circumstances. The court defined the tort as "the intentional destruction, mutilation or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action" (at 189). The elements of the tort were held to be (1) the existence of a potential lawsuit; (2) the defendant's knowledge of the potential lawsuit; (3) the destruction, mutilation or significant alteration of potential evidence; (4) intent on part of the defendant to disrupt or defeat the lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages.
70 In Smith v Atkinson 771 So 2d 429 (2000) the Supreme Court of Alabama concluded that general principles of Alabama law afford a plaintiff an adequate remedy. The court recognised a claim against a third party for spoliation of evidence, under the traditional doctrine of negligence, but considered there to be no need to recognise a new cause of action for spoliation of evidence.
71 Florida recognised a cause of action for negligent spoliation of evidence in Bondu v Gurvich 473 So 2d 1307 (1985). In doing so the court relied on the criteria to establish a claim in ordinary negligence, particularly the need to establish the existence of a duty recognised by law requiring the defendant to conform to a certain standard of conduct for the benefit of the plaintiff. In this case the duty arose from a statute requiring preservation of the medical records.
72 In Continental Insurance Co v Herman 576 So 2d 313 (1991) the Florida District Court of Appeal affirmed the existence of the cause of action for negligent spoliation of evidence and held the elements to be: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit and (6) damages.
73 In St Mary's Hospital Inc v Brinson 685 So 2d 33 (1990) the Court of Appeal of Florida expressly recognised a cause of action for spoliation of evidence and adopted the characterisation of the tort's elements expressed in Herman.
74 The District Court for the Western District of Oklahoma considered the issue in Barker v Bledsoe 85 FRD 545 (1979) and stated that:
"When an expert employed by a party or his attorney conducts an examination reasonably foreseeably destructive without notice to opposing counsel and such examination results in either negligent or intentional destruction of evidence, thereby rendering it impossible for an opposing party to obtain a fair trial, it appears that the Court would be not only empowered, but required to take appropriate action, either to dismiss the suit altogether, or to ameliorate the ill-gotten advantage."
75 This case does not use the terms "spoliation of evidence" or "tort" nor does it actually recognise a cause of action of spoliation.
76 Ohio recognised intentional spoliation of evidence as a distinct tort in Smith v Howard Johnson Co 615 NE 2d 1037 (1993) and articulated the elements as (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of the defendant that litigation exists or is probable, (3) wilful destruction of evidence by the defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts.
77 The Supreme Court of Illinois in Boyd v Travelers Insurance Company 652 NE 2d 267 (1995) held that a claim for negligent spoliation could be stated under existing negligence law without creating a new tort. The court considered that traditional remedies for the destruction of evidence were adequate.
78 The issue came before the Supreme Court of Alaska in the case of Hazen v Municipality of Anchorage 718 P 2d 456 (1986) in which the court held that a common law cause of action in tort existed for intentional interference with a prospective civil action by spoliation of evidence.
79 In the case of Levinson v Citizens National Bank 644 NE 2d 1264 (1994) decided by the Indiana Court of Appeals, it was held that although Indiana recognises the tort of intentional interference with civil litigation, it does so only with respect to spoliation or destruction of evidence, and then only under very specific circumstances. In the absence of an independent tort, contract, agreement or special relationship imposing a duty to the particular claimant, the claim of negligent or intentional interference with a person's prospective or actual civil litigation by the spoliation of evidence is not and ought not to be recognised in Indiana.
80 In the Federal Courts, the DC Circuit of the Federal Court of Appeals accepted that negligent or reckless spoliation of evidence is an independent and actionable tort: Holmes v Amerex Rent A Car 710 A 2d 846 (1998). The court held the elements of the tort to be (1) existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to that action; (3) destruction of that evidence by the duty-bound defendant; (4) significant impairment in the ability to prove the potential civil action; (5) a proximate relationship between the impairment of the underlying suit and the unavailability of the destroyed evidence; (6) a significant possibility of success of the potential civil action if the evidence were available; and (7) damages adjusted for the estimated likelihood of success in the potential civil action. Counsel for the plaintiff submitted that the DC Circuit was a particularly well respected US federal court, and that its decision therefore is of some significance.
81 Although the tort of spoliation has been recognised in a number of American jurisdictions, there are similarly a number of states which have expressly rejected the tort remedy, and a number which have yet to consider the issue. However, of the United States courts that recognised the tort of spoliation most only recognised intentional spoliation and not negligent spoliation.
82 The tort of spoliation has also been raised in a number of recent Canadian decisions. The position in Canada has traditionally been that spoliation of evidence gives rise to a rebuttable evidentiary presumption that the evidence would have been unfavourable to the party who destroyed it: see St Louis v The Queen (1895) 25 SCR 649; rev'g (1894) 4 Ex CR 185 and Lindsay v Davidson [1911] 1 WWR 125 (Sask. SC). The principle is represented by the maxim omnia praesumuntur contra spoliatorem and falls into line with the current law in the United Kingdom and Australia. In recent years, there have been some cases before the Canadian courts in which the courts have been asked to recognise the tort of spoliation as an independent cause of action. In each of those cases however, the court has refused to do so.
83 In Endean v Canadian Red Cross Society (1998) 157 DLR (4th) 465 (BCCA) the British Columbia Court of Appeal considered the validity of spoliation as an independent cause of action and declined to recognise it as a tort. In doing so, the court affirmed the appropriateness of a procedural, as opposed to substantive, remedy for spoliation. The plaintiffs were granted leave to appeal to the Supreme Court of Canada, however the appeal was subsequently abandoned.
84 The issue was again raised in Robb Estate v St Joseph's Health Centre (unreported, May 29 1998 (Ont. Gen. Div.) Feldman J) in which the plaintiff sought leave to amend the statement of claim to include a claim for damages for the tort of spoliation against the defendant. The facts pleaded were essentially the same as those rejected in Endean as giving rise to a tort of spoliation. Declining to follow Endean, Feldman J granted leave to the plaintiffs to amend their statement of claim. On successful appeal to the Divisional Court, the proposed amendment was struck out.
85 In Rintoul v St Joseph's Health Centre (1998) 42 OR (3d) 379 (Div. Ct) the majority held that to treat spoliation as a tort would be inconsistent with the decision of the Supreme Court of Canada in St Louis v The Queen that spoliation gave rise to a rebuttable presumption. In dissent, Corbett J disagreed with the majority view that St Louis dealt with the question of whether the tort of spoliation existed in Canada, stating that it was instead concerned with the appropriate application of the spoliation presumption.
86 The Robb Estate and Rintoul cases were heard together on appeal and it was held that the allegations of spoliation were not made out. The plaintiff appealed on the grounds that the court had erred in failing to award damages for the tort of spoliation. The judgment on appeal did not address the substantive issues raised by the plaintiffs' spoliation appeal, since the court held that even assuming a tort of spoliation exists, the evidence reveals the claim for spoliation to be without merit.
87 Counsel for the plaintiffs submitted that the tort of intentional spoliation of evidence has been recognised in Canada in Spasic Estate v Imperial Tobacco Limited (2000) 2 CCLT (3d) 43. This Court of Appeal decision does not hold that a tort of spoliation exists, rather it stands for the proposition that spoliation should not be dismissed on a preliminary motion to strike out a pleading, but should instead proceed to trial for determination on the evidentiary record. Thus the Canadian Court of Appeal decision has permitted the tort to go to trial. The case was an appeal from a decision striking out certain paragraphs of the plaintiff's statement pleading the tort of spoliation. At first instance, those paragraphs were struck out on the basis that they did not disclose a reasonable cause of action since no such cause of action existed under Ontario law. The motions judge followed the decision of the Divisional Court in Robb Estate in coming to that conclusion.
88 The Court of Appeal however followed the reasoning of Wilson J in Hunt v T & N plc [1990] 2 SCR 959 (SCC), a decision in which another unrecognised tort was pleaded and permitted to proceed to trial. Having stated that there may be good reason to extend the law of tort to this new context, Wilson J said:
"This is precisely the kind of question that it is for the trial judge to consider in the light of the evidence. It is not for this Court on a motion to strike out portions of a statement of claim to reach a decision one way or the other as to the plaintiff's chances of success. As the law that spawned the "plain and obvious" test makes clear, it is enough that the plaintiff has some chance of success.
…
The fact that a pleading reveals "an arguable, difficult or important point of law" cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society."
89 The Court of Appeal added that:
"There is no reason to embark on a detailed consideration of the strengths and weaknesses of the law, including the Canadian law, on the tort of spoliation. If it is established that the conduct of the respondents resulted in harm to the plaintiff by making it impossible for her to prove her claim, then it will be for the trial judge, in the context of a complete record, to determine whether the plaintiff should have a remedy. This is how the progress of the common law is marked in cases of first impression, where the court has created a new cause of action where none had been recognised before."
90 In response to the argument that the existence of alternative remedies negated the need for the tort, the Court of Appeal stated:
"I do not see why the existence of procedural sanctions to the "spoliation inference" which may, or may not, ameliorate the effects of spoliation should in themselves preclude the recognition of an independent tort. As the appellant relies on the spoliation inference, the trial judge will hear and consider evidence of spoliation in any event. I can see no reason why the trial judge should be precluded from considering all possible remedies, including a separate tort, on the basis of the record that will be developed."
91 Whether or not a tort of spoliation will be recognised in Ontario remains to be determined. Although in Canada opportunities have been allowed for the tort of spoliation to be argued at trial, it has not been recognised by any court in Canada. Counsel for the plaintiffs did not cite any cases from jurisdictions outside the United States and Canada in support of the existence of the tort.
92 After I reserved judgment in this case, the Supreme Court of Victoria published the decision of Eames J in McCabe. That was a case in which the plaintiff brought an application to strike out the defence in circumstances where the defendant had destroyed documents relevant to the proceedings before proceedings were issued and a time when no other proceedings were on foot. The plaintiff based her application on principles of abuse of process, whilst the defendant argued that a company is entitled to destroy documents when there are no proceedings on foot against it, and that only legislative reform could deny a company the right to do so. The defendant submitted that the plaintiff must be content with seeking to have adverse inferences drawn by virtue of the spoliation. The plaintiff submitted that where the requirements of discovery are so significantly disregarded as to prevent a fair trial the court has inherent power to strike out the defence. His Honour decided to strike out the defence. McCabe is currently the subject of appeal in the Victorian Court of Appeal.
93 McCabe is not a case in which the plaintiff sought the court's recognition of the tort of spoliation. However Eames J considered the extent of the court's regulatory power and noted the application of the tort of spoliation in the United States in various state jurisdictions. Whilst recognising that the tort does not exist in this country, His Honour opined that the underlying rationale for the principle applied by the American courts could as readily be applied with respect to the rules relating to discovery in this country.
94 His Honour quoted the following statement by the Court of Appeal in California in Willard v Caterpillar 48 Cal Rpts 2d 607 (Cal. App. 5 Dist. 1995) at p21-22 which helpfully summarises the varied opinions of the American courts with regard to the application of the tort of spoliation. The relevant passages state:
"Federal courts consider the conduct of a party prior to the commencement of the litigation in determining whether a party's failure to comply with a production order is wilful or in bad faith. If, prior to litigation, a party "'deliberately courted legal impediments to production,' "it cannot then be heard to assert its good faith after the expectation is realized. For conduct to constitute 'courting legal impediments,' it was not necessary that the actual litigation in which the documents are ordered produced be pending or specifically contemplated. "'Although a potential litigant is under no obligation to preserve every document in its possession, whatever its degree of relevance, prior to the commencement of a lawsuit, ... some duty must be imposed in circumstances such as these lest the fact-finding process in our courts be reduced to a mockery.'" (General Atomic Co v Exxon Nuclear Co, Inc (SD Cal 1981) 90 FRD 290, 295-296, 299, 304 [party housed its cartel documents in Canada, whose law precluded their release, in anticipation of antitrust litigation in the United States].) The proper inquiry is whether the defendant, with knowledge that the lawsuit would be filed, wilfully destroyed documents which it knew or should have known would constitute evidence relevant to the case. (Wm T Thompson Co v General Nutrition Corp, supra, 593 F Supp at p1445.)
Finally, at the other end of the spoliation liability continuum, some courts have held there is no liability for failing to preserve documents before a party has notice of their relevance to litigation likely to be commenced. One court noted that the potential for litigation arises at the moment of injury, but the injured party may not contemplate filing a lawsuit. Therefore, discovery sanctions for spoliation of evidence are warranted only if evidence was destroyed when the products liability action was contemplated rather than merely possible. (Iowa Ham Canning, Inc v Handtmann, Inc (ND Ill 1994) 870 F Supp 238, 244; and see Akiona v US (9th Cir 1991) 938 F 2d 158, 160-161 [sanctions not warranted unless party had some notice the documents were potentially relevant]; PBA Local No 38 v Woodbridge Police Dep (DNJ 1993) 832 F Supp 808, 833-834 [no spoliation of evidence where tape recordings at issue were routinely taped over four or five years before litigation commenced].)
These cases demonstrate the 'common understanding of society' regarding the wrongfulness of evidence destruction is tied to the temporal proximity between the destruction and the litigation interference and the foreseeability of the harm to the nonspoliating litigant resulting from the destruction. There is a tendency to impose greater responsibility on the defendant when its spoliation will clearly interfere with the plaintiff's prospective lawsuit and to impose less responsibility when the interference is less predictable."
95 Eames J concluded that the defendant's actions denied the plaintiff a fair trial. His Honour said that:
"The formal rules of procedure complement and acknowledge the inherent powers of the court which apply with the overriding objective of ensuring that parties to litigation receive a fair trial. Central to the conduct of a fair trial in civil litigation is the process of discovery of documents."
96 His Honour considered the possible remedies to ameliorate the prejudice suffered by the plaintiff as a result of the spoliation, including proceeding with the trial subject to further directions and orders for further discovery. His Honour concluded that the appropriate remedy in this case was to strike out the defence and enter judgment for the plaintiff.
97 Although the tort of spoliation was not raised in McCabe, the significance of the decision for present purposes lies in its evaluation of the remedies available to a plaintiff prejudiced by the defendant's spoliation of evidence. Australian courts may remedy spoliation of evidence in a number of ways. As previously discussed, the spoliation may give rise to an evidentiary presumption against the spoliator. Alternately, the court has an express power in all Australian jurisdictions, provided by the relevant court rules, to order that a defence be struck out where a defendant fails to comply with an order for discovery, production or inspection or refuses to answer interrogatories. In NSW, the powers of the court as regards discovery are found in Pt 23, and as regards interrogatories are found in Pt 24 of the Supreme Court Rules 1970. In NSW, the order may state that judgment will be entered against the plaintiff: Pt 24 r 9(1)(b). In addition, the New South Wales Supreme Court has the power to make whatever order it thinks is appropriate where a party has defaulted: SCR Pt 23, Pt 24 r 9(1).
98 Counsel for the plaintiffs referred me to an article by Richard Sommers and Andreas Seibert entitled "Intentional Destruction of Evidence: Why Procedural Remedies are Insufficient" (1999) 78 Canadian Bar Review 38, which was also referred to by Eames J in McCabe. The learned authors are of the view that civil procedure sanctions and traditional common law procedural remedies are often insufficient to deter the destruction of evidence and to compensate victims. They propose instead that a civil cause of action is appropriate and necessary.
99 In McCabe, Eames J dealt with the intentional spoliation of evidence by striking out the defence. Sommers and Siebert make the point however that there is nothing punitive in striking out the defence in a case in which the spoliator would have lost anyway. In cases where admission of the destroyed evidence would have resulted in inflated or even punitive damages, striking out the defence may not adequately compensate the plaintiff.
100 In Allen the court took into account that the documents were destroyed because litigation was anticipated. In The Ophelia, the court took a drastic step when it decided documents had been deliberately destroyed, of rejecting the evidence of the destroyer's witnesses. Thus the remedies available under the recognised principle of praesumuntur contra spoliation are varied. Currently, in McCabe, the remedy that was exercised was to strike out the defence and conduct a trial on damages. However, while the tort has some recognition in the United States, the Canadian position is that pleading the tort of spoliation has not been successful but it can be argued at trial. The two leading cases followed in Australia, The Ophelia and Allen which adopt the principle of omnia praesumuntur contra spoliatorem, were decided many years ago, 1916 and 1958 respectively. As there is some uncertainty in the Australian law as to the circumstances when a party is obliged to retain documents and it is debatable whether the current remedies act as a deterrent, it is my view that the tort of spoliation should be permitted to go to trial. Unfortunately, as the plaintiffs' claim that the hospital owed a duty of care to the deceased is doomed to failure, this is not to eventuate.
101 I make orders that the plaintiffs' statement of claim is dismissed as against the first defendant. Costs are discretionary. Normally costs follow the event. The plaintiffs are to pay the first defendant's costs.
102 The court orders: