DAMAGES

NEGLIGENCE: THE STANDARD OF CARE

For negligence claims:

1) suffered harm

2) show that D owed a duty of care

3) show that D was careless

4) show D caused P‟s injuries

5) P has to show that injuries are not too remote (remoteness of damages)



Negligence: “is the omission to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the conduct of human affairs, would do, or

doing something which a prudent and reasonable man would not do‖ Pg. 76.



THE OBJECTIVE STANDARD



Vaughan v. Menlove (1837):

Objective standard of care: whether D had acted with the reasonable degree of caution that a

prudent and careful person might have been expected to exercise.

 applies a standard reasonable to the person, i.e. ‗reasonable blind person‘)







 Standard of Care Expected of the Disabled



Buckley v. Smith Transport (1946):

TEST: whether an individual, notwithstanding his/her delusions, might still understand and

appreciate duty upon him/her to take care. If understanding and appreciation exist in

mind, and delusions do not interfere, individual is liable for breach of duty.



Roberts v. Ramsbottom (1980):



Objective Standard: eliminates the personal equation and is independent of the idiosyncrasies

of the particular person whose conduct is in question



BUT…objective standard can become a subjective standard (in driving case) when:



 a prima facie case of negligence can be rebutted by showing that a sudden affliction has

rendered him unconscious or otherwise wholly incapable of controlling the vehicle



 Standard of Care Expected of Children



McHale v. Watson (1966):



 RULE: The standard of care applicable to children is only partially objective in that it

must be adjusted incrementally in accordance with the age of the child in question.







1

 EXCEPTION: when children are engaged in adult activities (i.e. McErlean v

Sarel)



REASONABLE CARE



-How can a standard of care be determined?



Bolton v. Stone (HL, 1951): (HL)

 RULE: It is justifiable not to take steps to eliminate a real risk if it is small and if

the circumstances are such that a reasonable man, careful of the safety of his

neighbour, would think it right to neglect it



Watt v. Hertfordshire County Council (1954): (injured fire fighter)

 in measuring due care the risk must be balanced against the measures necessary to eliminate

the risk and also against the end to be achieved.

 the social worthiness of the action must always be considered and, here the risks involved in

sending out the truck with the jack in it were not so great as to prohibit the attempt to save

lives.





 Custom & Standard of Care



How do Courts use Customs?

- basically, 4 required steps in the procedure:

1) onus on party relying on custom to prove the custom (usually the D).

2) Non-compliance with the custom is prima facie (a working standard) evidence of negligence.

3) If you’ve complied with the standard, then prima facie there is no negligence…

There will be:

4) Onus on other party to show that the custom itself is negligent (not reasonable).



Trimarco v. Klein (1982):

RULE: Custom and usage will be an appropriate standard by which to judge whether an action is

negligent, so long as the custom/usage is in itself reasonable



ter Neuzen v. Korn (SCC, 1995):

RULE: As a general rule, where a procedure involves difficult or uncertain questions of medial

treatment beyond the ordinary experience of a judge/jury, it will not be open to find a

standard medical practice negligent.

 EXCEPTION: On the other hand, as an exception to this rule, if a standard practice fails

to adopt obvious and reasonable precautions which are readily apparent to an ordinary

finder of fact, then it is no excuse for a practitioner to claim that he was merely

conforming to such a negligent common practice.









2

 the conduct of doctors must be judged in the light of the knowledge that ought to have

been reasonably possessed at the time of the alleged act of negligence.





PROOF OF NEGLIGENCE



Byrne v. Boadle

Res ipsa loquitur—in some cases the courts have held that the mere fact of the accident having

occurred is evidence of negligence.

 The fact of the barrel falling was prima facie evidence of negligence.

 Injured plaintiff is not bound to show that it could not fall without negligence, but if there

are any facts inconsistent with negligence it is for the defendant to prove them.



Fontaine v. British Columbia (Official Administrator) (SCC)

 Res ipsa loquitur only operates to provide evidence of negligence in the absence of an

explanation of the cause of the accident.

 If at the conclusion of the case, it would be equally reasonable to infer negligence or no

negligence, the plaintiff will lose since he or she bears the legal burden on this issue.









3

DUTY

Flemming-―recognition of a duty of care is the outcome of a value judgment, that the plaintiff‘s

invaded interest is deemed worthy of legal protection against negligent interference by conduct of

the kind alleged against the defendant.



Winterbottom v. Wright (1842):

RULE: The right to recover for breach of contract is confined to those who enter into the actual

contract (privity of contract). Without privity of contract in this case, there is Ø duty of

care of D to P.







M’Alister (Donoghue) v. Stevenson (HL, 1932):

 contractual relation is irrelevant to recovery in tort law.



RULE:A manufacturer of products, which he sells in such a form as to show that he intends them

to reach the ultimate consumer in the form in which they left him with no reasonable

possibility of intermediate examination, and with the knowledge that the absence of

reasonable care in the preparation of putting up of the products will result in an injury to

the consumer‘s life or property, owes a duty to the consumer to take that reasonable care.



 Introduced notion of foreseeability



Neighbour Principle-Who is my neighbour? Person who are so closely and directly affected by

my act that I ought reasonably to have them in contemplation as being so affected when I am

directing my mind to the acts or omissions which are called in question.



Deyong v. Shenburn (1946): (Actor‟s stolen clothes)

Facts: - P is an actor whose clothes were stolen from his dressing room.

-sued the producer for failing to use reasonable care in safeguarding his property.



RULE: ―it is not true to say that wherever a man finds himself in such a position that unless he

does a certain act another person may suffer, or that if he does something another person

will suffer, then it is his duty in the one case to be careful to do the act and in the other

case to be careful not to do the act – any such proposition is much too wide‖ (pg. 123)



 Suggestion in this case that policy decisions are made based on what a ―neighbour‖ is,

and what duty of care is owed.



Watson v. Buckley and Osborne (1940): (hairdressing product)

Ratio: Distributor cannot escape liability by saying ―the initial mistake was made by someone

for whose actions I am not responsible‖.









4

Clay v. A.J. Crump & Sons Ltd. (1964):

RULE: A chain of causation and arising duty of care will not be broken if one party had the

‗final opportunity‘ to inspect a dangerous structure --- the other parties that inspected it

will also have a duty



Palsgraf v. Long Island Railroad Co. (1928):

[the American version of Donoghue v. Stevenson]



Ratio: In every instance, before negligence can be predicated of a given act, it must be shown

that there existed a duty to the individual complaining, the observance of which would

have averted or avoided the injury. Injury must have been reasonably foreseeable for the

duty of care to arise



 DUTY TO RESCUER



Haynes v. Harwood (1935):

RULE: Where a wrongful act causes damage that could have been reasonably anticipated as a

result of the wrongful act, the ―doctrine of assumption of risk‖ does not apply where P

faces a risk of death as a result of attempting to save a person from the results of D‘s

wrongful misconduct (even if P owes no special duty to the person being saved)



 it is sufficient to show that the accident is of a class that might well be anticipated as one

of the reasonable and probable results of the wrongful act.





Wagner v. International Railway Co. (1921):

RULE: wrongdoer is accountable as if he would have foreseen the rescuer intervening







Dobson v. Dobson (1999), SCC

 primary purpose to tort law: to provide compensation to the injured and deterrence to the

tortfeasor.

imposition of tort liability on mother would provide neither.



McLACHLIN J: Concurring



 common law must reflect the values of the Charter. Liability for fetal injury by pregnant

women would run contrary to the most fundamental of these values:



Liberty: virtually every action of a prego is capable of affecting the health and well-being of her

unborn child, and hence caries the potential for legal action against the pregnant women.



Equality: the intrusion upon the prego‘s autonomy would violate her right to equal treatment.

Any other member of society can avoid being a tortfeasor by isolating himself from other

members of society. A prego has no such choice.







5

MAJOR J.: Dissenting

 appellant already under legal obligation to drive carefully.

owed a duty of care to passengers in car and to other users of highway.

would not have to take any further precautions, additional to those she was already

legally obliged to take, in order to avoid liability to her born alive child.

 Charter does not grant prego‘s any interests in negligent driving.

 her child‘s prima facie right to sue in tort arises only on the same grounds and in the same

way as that of the driver of the other car.

 if same shit happened and other woman‘s child got fucked, no doubt that the child would

have right to sue Dobson.



Duval v. Seguin (1972):

RULE: Defendant owed a duty of care to Plaintiff b/c it was foreseeable that some users of the

highway were pregnant women and that an unborn child could be injured in an accident.



 Sometimes, a fetus may be seen as a future claimant - will recover unless it does not end

up being born - only has legal rights when it is born.







Horsley v. MacLaren (1971):

RULE: legal protection is now afforded to one who risks injury to himself in going to the rescue

of another who has been foreseeably exposed to danger by the unreasonable conduct of a third

person.

the latter is now subject to liability at the suit of the rescuer as well as at the suit of the

imperiled person.



Urbanski v. Patel (1978):

i) father‘s effort to help his daughter is a consequence of the disaster that befell her

ii) it was entirely foreseeable that P‘s father would have donated kidney





Cooper v. Hobart (SCC)

Revised Ann‟s Test:

1. Any analogous categories?

2. Was the harm that occurred the reasonably foreseeable consequence of the defendant‘s

act?

3. Are there reasons, notwithstanding the proximity between the parties established in the

first part of this test, that tort liability should not be recognized here?









6

REMOTENESS



 even if there is a duty and the defendant was negligent, he may not be liable if the injury

was found to be too remote.



 Directness and Foreseeability Tests



Re Polemis and Furness, Withy & Co. (1921):

[*no longer good law re: remoteness as of Wagon

Mound No. 1]

RULE: Once a person is found negligent for an act, it does not matter whether the precise extent

of the damage caused by the act was reasonably foreseeable. Once found negligent, the

individual is liable for the damages that arise, regardless of how unforeseeable the extent

of those damages were.



 If the damage is a direct consequence of the act, it doesn‟t have to be reasonably

foreseeable. The damage must be the direct and immediate consequence of the act;

foreseeability is an element of directness.



TEST: once negligence is established (on basis of reasonable foreseeability), one is liable for all

damages that are „direct consequences‟ of the action



The Wagon Mound No. 1 (Privy Council, 1961):

[authority on remoteness]



RULE: A man must be considered responsible for the probable consequences of his acts. Those

consequences must be reasonably foreseeable.



 Privy Council held that Re Polemis (which stated that a D is responsible for all

consequences that are the direct result of the act whether reasonably foreseeable or not) is

not good law.

 foreseeability was said to be an effective test, as the direct consequences test (Polemis)

leads only to never-ending and insoluble causation problems

 Viscount Simonds: only the type of damage must be reasonably foreseeable, and fire

was not reasonably foreseeable.



TEST FOR REMOTENESS: Consequences/damage of an act must be reasonably

foreseeable









7

 Thin-Skull Rule

 Type vs. Extent of Injury



Smith v. Leech Brain & Co., Ltd. (1962): (burn victim triggering cancer)

RULE: In terms of liability, all that is relevant is whether D could reasonably foresee the TYPE

of injury that occurs. It is immaterial to liability whether D could foresee the exact extent

of that injury, as they will be liable for any ‗after effects‘ the injury is related to. This is

the result of the principle that one must take their victim as they find them





Thin-Skull Rule: tortfeasors must take their victims as they find them



 Only the initial injury must have been reasonably foreseeable, and in this case the

possibility of a burn was reasonably foreseeable.





Stephenson v. Waite Tileman Limited (1973): (rope cut caused N.S. disorder)

RULE: there will be liability for harmful consequences arising from a new risk created by a

foreseeable kind of injury.



 the “thin-skull‖ principle can operate in two ways:

(a) an accident operates on a pre existing state of special susceptibility in some way latent in the

injured person; or

(b)occurrence of physical injury may expose the inured person to a new risk of further injury



TEST:

The question of foreseeability is limited to the initial injury.

If reasonable foreseeability is made out with respect to the initial injury, the plaintiff must then

establish an adequate relationship of cause and effect between the initial injury and the ultimate

consequence.



Cotic v. Gray (1981):

Ratio: Even though D said the suicide was not reasonably foreseeable, the D must take the

plaintiff as he finds him (thin skull rule) – as a psychologically vulnerable person.









8

 Modifications to Reasonable Foreseeability Test – the extent of

injury





Hughes v. Lord Advocate (HL, 1963): (children burned in pothole)

RULE: If a known source of danger causes an accident/damage in a way that could not have

been foreseen, D is still liable. One does not to have to see the extent or circumstances of

the injury only must see the kind/type of injury in order for recovery.

 the type of occurrence arising from the lamp was reasonably foreseeable (the burn),

though the source of the danger acted in an unpredictable way (which does not relieve

liability).



Doughty v. Turner Manufacturing (1964):

RULE: If a cause of damage is unforeseeable, D will not owe a duty to P, and thus, will not be

responsible for damage that arises as a result of this unforeseeable cause









 NOVUS ACTUS INTERVENIENS (INTERVENING ACT):

 Another issue in ‗reasonable foreseeability‘



when is D responsible to injuries to P caused by someone else (intervening act)?



Bradford v. Kanellos (1973): SCC (flash fire in restaurant)

RULE: A D will not be held liable for injuries sustained by P, where those injuries resulted from

the intervening act of another, whose actions could not be regarded as within the risk

created by D‘s original negligence.



 The intervening act (yelling about noise made by extinguisher) was not reasonably

foreseeable





Home Office v. Dorset Yacht Co. Ltd. (HL, 1970):



RULE: Where human action forms one of the links between the original wrongdoing of the

defendant and the loss suffered by the plaintiff, that action must at least have been

something very likely to happen if it is not to be regarded as novus actus interveniens

breaking the chain of causation.

 not all human action breaks the chain of causation.



TEST: If the human action that links the original wrongdoing and the damage was something

that was ‗very likely to happen‘, it will NOT be regarded as an intervening act







9

Lamb v. London Borough of Camden (CA, 1981): (squatters)

TEST: The appropriate test is reasonable foreseeability limited by remoteness and

causation but ultimately it is a question of policy.



Denning:

- P paved the way for them by leaving her house unoccupied and unfurnished – there was then

a reasonably foreseeable risk that squatters might enter.

- it was the job of the house owner to keep out squatters and, if they got in, to evict them.

- if P was insured against the loss, the insurers should cover the damages.









10

CAUSATION



HENKE TEST:

 Injury would not have happened ―BUT FOR‖ the defendant‘s negligence

The "but for" test recognizes that compensation for negligent conduct should only be

made "where a substantial connection between the injury and defendant's conduct" is

present. It ensures that a defendant will not beheld liable for the plaintiff's injuries where

they "may very well be due to factors unconnected to the defendant and not the fault of

anyone": Snell v. Farrell

 If unworkable, use ―MATERIAL CONTRIBUTION‖ instead

 two requirements.

o First, it must be impossible for the plaintiff to prove that the defendant's

negligence caused the plaintiff's injury using the "but for" test. The impossibility

must be due to factors that are outside of the plaintiff's control; for example,

current limits of scientific knowledge.

o Second, it must be clear that the defendant breached a duty of care owed to the

plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the

plaintiff must have suffered that form of injury. In other words, the plaintiff's

injury must fall within the ambit of the risk created by the defendant's breach.



 One situation requiring an exception to the "but for" test is the situation where it is

impossible to say which of two tortious sources caused the injury, as where two shots are

carelessly fired at the victim, but it is impossible to say which shot injured him: Lewis v.

Cook, Provided that it is established that each of the defendants carelessly or negligently

created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e.

carelessly or negligently fired a shot that could have caused the injury), a material

contribution test may be appropriately applied.





Lambton v. Mellish (1894): (2 organ players, injunction)

RULE: If the acts of two persons, each being aware of what the other is doing, amount in the

aggregate to what is an actionable wrong, each is amenable to the remedy against the aggregate

cause of complaint.



Corey v. Havener (1902): (motorcycle effecting horse)

RULE: if each of 2 or more D‘s contribute to an injury to P, all D‘s will be responsible



Kingston and Chicago and NW Ry. (1927): (fires)

RULE: when strictly concurrent acts are wrongful, each (of the D‘s) is liable for the damage

done by all









11

Wright, “Causation in Tort Law” (1985):



-NESS (Necessary Element of a Sufficient Set) TEST of cause in fact:

a particular condition is the cause of a specific consequence if and only if it was a

necessary element of a set of antecedent actual conditions that was sufficient for the

occurrence of the consequence



ex.) if any 2 of 3 fires were sufficient for the injury, but none by itself was sufficient,

each was a cause of the injury since each was necessary for the sufficiency of a set of

actual antecedent conditions that included only on of the other fires



Conclusions: -NESS Test would establish causal status to a very small fire that merged with a

larger fire

-the very small fire was a duplicative cause of any resulting injury

-whether the person who tortiously caused the first fire should be held liable is a

question of policy to be determined under the heading of damages



Sunrise Co. Ltd. et al v. Ship “Lake Winnipeg” (1991): (SCC)

RULE: Where 2 D‘s each cause damage to a P, the D that has caused more extensive damage

will be liable for all damages caused



Athey v. Leonati (1996): (hurting back)

successive liability

‖crumbling skull‖ principle



“CRUMBLING SKULL RULE”: (P had a pre-existing condition that already put them on the

way to the injury --- different from ―thin skull‖ where there is a susceptibility to the injury) means

that P should only be put back in the position they were in with their ‗already crumbling skull‘

(i.e. if someone injures a person that has MS, they put the P back in a position the person they

would have been in as a person with MS, not a person who did not have MS)



RULE: The presence of non-tortious contributing causes will not affect D‘s liability where the

injury D causes materially contributed to P‘s overall injury.









12

 Factual Uncertainty:

Blackstock v. Foster (1958): (rear-ended, bumped chest, result in tumour)



RULE: The finding of a causal connection holding D liable is justified only when

positive knowledge or common experience supplies some adequate ground for believing

that the events are naturally associated. The onus is on P to prove the causal

connection b/w D‟s actions and P‟s injury.



RULE: when the casual connection is questionable, the burden falls on P to prove

connection b/w D’s breach of duty and P’s injuries, on a balance of probabilities



Cook v. Lewis (1951): SCC

RULE: Where 2 D‘s are involved, and the negligence of one causes injury to P, it rests

with each D to absolve themselves if they can. The P should not be put in the position of

proving which D caused the harm. The parties were not involved in a joint enterprise in a

sufficient way to merit imposing joint liability. Court will impose liability where both Ds

were negligent, and either of the Ds could have caused the accident, but it cannot be

determined which D.



Joseph Brant Memorial Hospital v. Koziol (1977):

RULE: if cause of negligence is unknown, there cannot be liability



Sindell v. Abbott Laboratories et al (1980):

[different from Cook v. Lewis b/c in Sindell, 100% of Ds caused damages whereas in Cook only

1 of 2 Ds caused damages]



RULE: where many potential D‘s are responsible for an injury to P, but it is not possible

to identify which particular D caused the injury, the ―market share principle‖ will hold

each D liable for the proportion of the judgment represented by its share of that market,

unless the D can demonstrate that it could not have contributed to the injuries. ”Market

Share Liability”









13

McGhee v. National Coal Board (1972): (HL) (exposure to dust resulted in

dermatitis)



RULES:



(1) where a person creates risk by a breach of duty of care, and injury occurs w/in area of

that risk, the loss should be borne by that person unless he shows that the injury has

some other cause

(2) a person is liable in negligence to a plaintiff if the person‘s breach of duty caused, or

materially contributed to, plaintiff‘s injury, notwithstanding that other factors contributed to the

injury for which the person was not responsible

(3) when a P demonstrates on a balance of probabilities that D caused or materially contributed

to P‘s injury, the onus shifts to D to disprove causation



Farrell v. Snell (1990): (SCC)

RULE: Once a P produces evidence that D caused or materially contributed to their

injury, and D does not produce evidence to the contrary, it is justified for the court to

draw an inference adverse to D. In a situation like this, the burden of proof does not

‗shift‘ (as stated in McGhee by Wilberforce), but rather, an inference is drawn in the

absence of evidence from D. The injury and the action must be substantially related –

meaning that the D‘s actions more likely than not caused P‘s injury



Test: P must show a substantial connection b/w their injuries and Ds negligent act



Hotson v. East Berkshire Area Health Authority (1987): (HL)

LOSS OF CHANCE



RULE: Damages in tort are confined to compensating proved financial or physical losses

and the loss of a chance is neither. A D‘s negligent actions will not provide recovery for

a ‗loss of chance‘ where that chance was already sufficiently impaired by P‘s original

condition (i.e. even if D was negligent, if D‘s intervention would have not changed P‘s

condition)









14

DEFENCES



CONTRIBUTORY NEGLIGENCE



- premised on the notion that the duty of care for others should be no higher than the duty of care

for oneself (this ensures that the public will not get accustomed to looking to others for protection

while abdicating their responsibility for their own safety)



Butterfield v. Forrester

 ―A party is not to cast himself upon an obstruction which has been made by the fault of

another and avail himself of it, if he do not himself use common and ordinary caution to

be in the right.‖ One person being in fault will not dispense with another using ordinary

care for himself.

put pole on the rode, but P was riding horse violently so got injured.



Rule: A D will not be held liable where it is clear that a P could have taken action to avoid the

very accident that caused his/her injuries. Even if D was at fault in some way, this will

not eliminate P‘s need to exercise ordinary care.



Negligence Act (RSO 1990):

 if fault or negligence is found on the part of P (contributory negligence), the court shall

apportion the damages in proportion to the degree of fault or negligence found against

the parties respectively

 degree of fault or negligence of the respective parties is a question of fact for the jury



Froom v. Butcher

 If either a driver or passenger P fails to wear a seatbelt and an accident occurs, and the

injuries would have been prevented or lessened if P had worn the seatbelt, P‘s damages

should be reduced. If there is an available safety device, and P did not use it, P‘s

damages will generally be dropped by 25%. Exceptions where P can show that even if

they were wearing safety device, damages would still be substantial.



Rule: if failure to wear seatbelt would have made ―all the difference‖ (damage would have been

prevented altogether) damages should be reduced by 25%

Rule: if failure to wear seatbelt would have made some difference (damage would occur but

would be less severe) damages should be reduced by 15%

Rule: D must prove on a balance of probabilities that P was contributorily negligent









15

VOLUNTARY ASSUMPTION OF RISK



―volenti non fit iniuria‖ (injuries do not happen to those that consent)





if P consented to the negligent act, they should not be able to recover

if consent is proven, P will get Ø damages (there is Ø apportionment)



-Consent/Volenti comprised of 2 parts: a) knowledge (cannot consent to what you do

not know)

b) agreement (can be either explicit or implicit)



Standard of knowledge: -actual and assumed knowledge

-standard is objective (b/c courts look at assumed knowledge)



 the defence has been reduced significantly…courts will usually find a way to move the

defence out of consent/volenti and move into contributory negligence where damages are

apportioned

 More than simply knowing of risk, is fact is knowing the risk, accepted risk and

independently gave up legal rights overtly.







Lambert v. Lastoplex (SCC) (flammable sealant)

 knowing the physical risk involved does not mean an acceptance of the legal risk.

 higher knowledge on the part of the P is not relevant

 D‘s warnings were not sufficient in light of the custom of the industry

important to remember that if finding that there was consent, P would get Ø





Dube v. Labar (SCC)

 Volenti defence requires not merely P‘s knowledge of a risk, but his or her express or

necessarily implied acceptance of the risk of harm, knowing of its virtual certainty, without

recourse to the law.

 Volenti defence must have express or implied bargain b/w parties whereby P gave up rights

of action for negligence (legal recourse).

 there must also be an understanding by both parties that D assumed no responsibility to take

care for P‘s safety, and that P did not expect this.





Priestly v. Gilbert

 Where P and D set out on a ―joint venture‖ in which P knew or should have know would

endanger life and limb, P will have voluntarily accepted the risk of personal injury

o Ex. Drinking together









16

ILLEGALITY



Court wants to scale back illegality defence. Therefore limit it to:

1) do not allow P to profit from their own wrongs

2) do not want to damage the integrity of the legal system





Hall v. Hebert (SCC)



RULE: recovery in tort should only be barred due to P‘s immoral or illegal conduct in

limited circumstances, like if he would profit through a direct pecuniary award from

illegal or wrongful conduct





 as a general rule, the illegality principle will not operate to deny damages for

personal injury, since torts are generally based on claims for compensation and P

will not seek damages as a profit for illegal/immoral acts









17

CONTRIBUTION

Contribution-refers to the power of the defendant to call upon other tortfeasors to bear their

share of the damages.



-defendants must first be found liable in tort before any contribution is assessed.



Negligence Act, RSO 1990:

 where damages have been caused/contributed by the fault/neglect of two or more

persons, the court shall determine the degree in which each of such persons is at

fault/negligent



 tortfeasor may recover contribution from any other tortfeasor who is, or would if

sued have been, liable in respect of the damage to any person suffering damage as a

result of a tort



Justification for Contribution: if D1 and D2 each contribute to P‘s loss, it would be

unfair that D1 should have to satisfy all the loss simply

b/c P chooses to sue only D1, and thus D2 escape

unscathed



principle of contribution is reflection of the notion of

unjust enrichment



County of Parkland No. 31 v. Stetar (SCC)

 Where a person who is alleged to be a tortfeasor has been sued and has been held not

liable, this tortfeasor cannot be sued for contribution by another tortfeasor that was held

liable.



Fitzgerald v. Lane (HL)

-first, judge must determine whether the plaintiff has established liability against one or other or

all the defendants, i.e, that they were negligent (or in breach of statutory duty), and that that

negligence caused or materially contributed to injuries

-once liability has been established, must assess the total damages the plaintiff has sustained.



once these 2 decisions have been made must determine whether plaintiff has contributed to the

damages

--must assess the extent to which it is just and equitable to reduce the damages which

would otherwise be recoverable by the plaintiff, having regard to his ―share in the

responsibility for the damage.‖









18

THE ROLE OF STATUTES



The Queen in Right of Canada v. Saskatchewan Wheat (SCC)

1. Civil consequences of breach of statute should be subsumed under the law of

negligence

2. The notion of a separate tort of statutory breach giving right to recovery merely on

proof of the breach should be rejected. Idea that unexcused breach constitutes negligence

giving rise to absolute liability should also be rejected.

3. Proof of statutory breach, causative of damages (causation), may be evidence of

negligence.

4. The statutory formulation of the duty may afford a specific, and useful, standard of

reasonable conduct.



Board of Governors of Seneca College of Applied Art and Technology

v. Bhadauria (SCC)

RULE: Where a statute creates an independent enforcement mechanism(s) for a violation of the

statute, there will be no independent tort action available for breach of statute

 i.e., Human Rights Code









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NEGLIGENT MISREPRESENTATION



Candler v. Crane Christmas & Co.

 negligent misrepresentation made by a director to potential subscribers for shares, on which

some of them act to their detriment, affords the latter no remedy.



Special problem of statements: ―indeterminate time, indeterminate amount,

indeterminate class‖







Hedley Byrn & Co. Ltd. v. Heller (HL)

 the circumstances may have given rise to a duty of care owed by the defendant to HB, but its

disclaimer of responsibility for its reply excluded the assumption of this duty.



TEST: To recover for negligent statements causing pure economic loss, require:

(a) Special relationship b/w parties

- predicated on - D has special knowledge - in professional setting – intending for it to be

relied upon

(b) Reasonable Reliance: it must be reasonable for p to rely on d‘s stmt – that D should have

known the P would rely on statement. (here, d not liable due to disclaimer)

-The new rule: there is liability w/ 2 requirements:

(1) intent of the advice – it must be given in a professional context and intended to be relied

upon,

(2) it must be reasonable for the plaintiff to rely on the advice



-only people in the professional field should be relied upon and are liable for their advice.

-the categories of special relationships which may give rise to duty of care, in words as well as in

writing, are not limited to contractual or fiduciary relationships but also include relationships

―equivalent to contract‖, where responsibility is assumed in circumstances which, but for the

absence of consideration, would be a contract.

-duty arises only if the person giving advice was one of skill and judgment (for Donoghue, skill

and judgment only enter when determining standard of care and not duty of care).





-there is an imposed duty of care for negligent misstatements and pure economic loss when:

(a) there is a special relationship b/w parties,

(b) there is voluntary assumption of risk by D, and it must be reasonable for P to rely on

D‘s statement (here, D not liable due to disclaimer).









20

Queen v. Cognos (SCC)

-waived the ―expertise rule‖ of Hedley Byrne

 five general requirements for a successful claim by a P:



(1) there must be duty of care based on special relationships b/w representor & representee;

(2) the representation in question must be untrue, inaccurate, or misleading;

(3) the representor must have acted negligently in making said misrepresentation;

(4) the representee must have relied, in reasonable manner, on said negligent

misrepresentation;

(5) the reliance must have been detrimental to the representee in the sense that damages

resulted.



Haig v. Bramford (SCC)

EXTENT OF DUTY

 3 options to catalogue class of persons

1) Foreseeability of someone using information

2) Actual knowledge of limited class of people using information - * Here 2 is used

3) Actual knowledge of exact person using information

 General Rule: to owe a duty of care, must have knowledge of the limited class who will use

and rely on the given info, not the particular individual who is relying on it.

 Widens catch of reliant persons to unknown persons

 accountants were aware that the client‘s company intended to supply the statement to a very

limited class, of which p was a member, and it was irrelevant that accountants did not know

p‘s name.

 accountants owed p a duty to use reasonable care in the preparation of the stmt - p placed

justifiable reliance upon the stmt.

- QUALIFIES THE LIMITED CLASS USING THE INFORMATION; REASONABLE

KNOWLEDGE OF LIMITED CLASS, NOT PARTICULAR PERSON

- LIKE D v. S, THAT KNOW SOMEONE WILL USE IT, NOT THE PARTICULAR PERSON





Caparo Industries v. Dickman (HL)

RULE: Duty of care is not owed to potential investors, since there‘s not sufficient reliance; these

potential investors are supposed to do their own research in addition to the info. taken from the

audited statements.









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Hercules Management Ltd. v. Ernst & Young

2-stage TEST to establish duty of care re: negligent statements:

-use ANNS TEST/COOPER





1) Proximity: i) Special Relationship - the D ought reasonably to foresee that the P will rely

on his representation, and

ii) Reasonable Reliance- reliance by P would, in the particular circumstances of

the case, be reasonable





2) Policy: i) D‘s knowledge of the identity of the P or class of P

ii) type of use to which the statements are put





General points to consider:

1. Expertise and knowledge of representor

2. The seriousness of the situation.

3. Initial request for information—maybe for specific purpose, trigger in mind of person

providing info that they are prepared to give info that could be relied upon.

4. Pecuniary interest

5. Nature of the statement—statement of fact, or statement of opinion

6. Disclaimers—may accompany statement that is made, ―use it at own risk‖

7. Policy concerns—liability to an indeterminate class or # of people.



Nunes Diamond Ltd. v. Dominion Electric Protection (SCC)

RULE: fact of having a contract does not automatically prevent Hedley Byrne liability - tort and

contract can run parallel and it was reasonable for p to rely on the statement made by d‘s

technician.



BG Checo International Ltd. v. B.C. Hydro and Power Authority (SCC)

RULE: Where a given wrong prima facie supports an action in contract and in tort, P may sue in

either or in both (except where the contract specifically indicates that the parties intended to limit

or negate the right to sue in tort). To negate tort claim, there has to be an express term which

waives any tort rights (expressly states that person loses their tort rights). Merely entering

into a contract will not eliminate tort rights. Actually have to say “we expressly waive tort

rights”. This ratio is conditional on the fact that there was equal bargaining power.









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ECONOMIC LOSS



Weller v. Foot and Mouth Disease Research

 Case about property damage to a third party which resulted in economic losses for the

plaintiffs



RULE: Limiting recovery for negligently caused financial harm

o A P suing in negligence for damages suffered as a result of an act or omission of

a D cannot recover if the act or omission did not directly injure, or at least

threaten directly to injure the P‘s person or property, but merely caused

consequential loss.



Spartan Steel & Alloys Ltd. v. Martin

- actual physical damage can be recovered, but the loss of profit from the other 4 melts was

economic loss independent of the physical damage.

- Physical or direct damage: Yes

- Economic loss related to physical damage: Yes

- Loss of profit not consequential to physical damage: NO



 Recovery for consequential economic loss (actual physical damages and direct

damage)

 No recovery for non-consequential economic loss (pure economic loss)



Caltex Oil:

 In this case, there was ‗sufficient proximity‘ to entitle the P to recover its reasonable

foreseeable economic loss:



a) D‘s knowledge that the property damaged was of a kind that was likely to create economic loss

to P



b) D‘s knowledge that P utilized the damages property (pipelines) to transport goods for purpose

of business



c) infliction of damage by D to the property of a third party as a result of conduct in breach of a

duty of care owed to that third party



d) nature of detriment suffered by P



e) nature of damages claimed (employing alternative modes of transport)



Rule: if you damage third party property and there is a sufficiently close relationship b/w

third party and P, recovery will be allowed.









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Canadian National Railway v. Norsk Pacific Steamship (SCC)

 Pure economic loss allowed IF P can establish 2 things:



(1) close proximity b/w plaintiff and defendant (closer than Donoghue),

i. one indicator of this proximity will be damage to property even if it

is to a 3rd party.

ii. proximity is a necessary but not necessarily sufficient condition of

liability.

(2) negligence and foreseeable loss.



 if the relationship with the third party is so proximate, foreseeable and direct, the P will

recover pure economic loss based on physical damage to third party property





Winnipeg Condominium Corp. No. 36 v. Bird Construction (SCC)

 GENERAL RULE: cannot recover for pure economic loss (it is the production of

defective property, not the damage of property)



 Exception (as here): Danger: if it likely to cause injury or there is a threat to injury, then

one can recover b/c better to prevent injuries. Contractors who take part in the design

and construction of a building will owe a duty in tort to subsequent purchasers of the

building if it can be shown that it was foreseeable that a failure to take reasonable care

would create defects that pose a substantial danger to the health and safety of the

occupants.

- thus, reasonable costs of repairing the defects and putting the building back into a non-

dangerous state are recoverable economic losses under the law of tort in Canada.

- If damage non-dangerous, simply cosmetically unappealing, not recoverable.



 Rule: P can recover for pure economic loss if it is a threat to safety of others

(danger)



White v. Jones (HL)

 A solicitor who undertakes to perform professional services for his client may be liable to

his client for failure to exercise due care and skill in relation to the performance of those

services not only in contract, but also in negligence (tort), under the principle in Hedley

Byrne. This liability is based on the assumption of responsibility by the solicitor

towards his client

 ‗special circumstances‘ giving rise to a reliance by the beneficiaries are required for

action against the D --- ‗special circumstances‘ in this case are that the testator would

have Ø claim b/c he was dead when any claim could be made









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INTENTIONAL TORTS AND INFORMED CONSENT

JUSTICE CORDOZO:



―Every human being of adult years and sound mind has a right to determine what shall be done

with his own body.‖ (Pg. 513)



Malette v. Shulman (Jahova‟s witness/doctor)

RULE: when people have freedom to make decisions about themselves and their bodies, they are

entitled to make ‗bad‘ decisions --- reasonableness is NOT applied in these situations



 The Doctrine of Informed Consent protects a patient‘s right to control his/her own

medical treatment. No medical procedure can be undertaken unless the patient is

provided with sufficient information, and expressly consents. Even in cases where the

procedure is for the patient‘s benefit, a doctor will be liable for battery if he engages in

the procedure without consent.



 EXCEPTION: to the Doctrine of Informed Consent is the ―Emergency Situation‖,

where a doctor, by reason of necessity of the circumstances (i.e. patient is unconscious

and in dire need of medical attention) will not be held liable for administering treatment

in an emergency situation. This ―privilege‖ to administer treatment without consent in

an emergency arises when (a) patient is unconscious and there is Ø substitute decision-

maker, (b) time is of the essence, (c) under the circumstances a reasonable person and

the patient would consent.





Non-Marine Underwriters, Lloyd’s of London v. Scalera (SCC) (bus driver

sex. Assau.)



 If the defendant does not dispute that the contact took place, he bears the burden of

proving that the plaintiff consented or that a reasonable person in his position would have

thought that she consented.



OBJECTIVE TEST: to establish sexual battery, the plaintiff must demonstrate that a reasonable

person would have known that the plaintiff did not validly consent to sexual relations.

simple allegation of non-consensual sex will suffice to meet this initial burden.



 To succeed in an action for intentional battery, one must prove both that:

o The defendant intended to do the action

o The reasonable person would have perceived that action as being harmful or

offensive.

 In sexual battery, the trier of fact must be satisfied that the defendant

intended to engage in sexual activity which a reasonable person should

have perceived to be non-consensual.

to prove civil tort of sexual battery, only need to prove on a balance of

probabilities that the defendant knew or ought to have known that the

plaintiff did not consent.









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Norberg v. Wynrib (SCC) (sex with doctor for drugs)

TEST: whether there is legally effective consent in cases of sexual assault:



Consent will be deemed ―unconscionable‖ where:

 1) Proof of an inequality b/w the parties (will ordinarily occur within the context of a

special ‗power dependency‘ relationship)

 2) Proof of exploitation





 consent must be voluntary

 ―a man cannot be said to be ‗willing‘ unless he is in a position to choose freely; and

freedom of choice predicates the absence from his mind of any feeling of constraint

interfering with the freedom of his will.

o Must appreciate power relationships and ―justice factors‖

 undue influence, duress, and unconscionability



 The essence of a fiduciary relationship is that one party exercises power on behalf of

another and pledges themselves to act in the best interest of the other.



Re Eve (SCC) (sterilization of retard)

DOCTRIN OF PARENS PATRIAE:

 provides that the state is empowered to make decisions in the best interests of those who

are mentally incompetent

 the decisions made must be used to do ―what is necessary for the protection of the person

for whose benefit it is exercised‖

 non-therapeutic sterilizations (b/c of their seriousness and finality) should never be

authorized under the parens patriae jurisdiction



Reibl v. Hughes (SCC)

-as per Farrell v. Snell

 Test: P must show a substantial connection b/w their injuries and Ds negligent act





Doctors must inform their patients of:

1) Material risks-unusual and everyday occurrences, those that are significant risks that pose

a real threat to the patient‘s life, health, or comfort.

2) Extent of risks

3) Consequences of those risks

4) Extent of risk of not having procedure



MATERIAL RISKS = OBJECTIVE TEST = WOULD A R.PERSON THINK THESE ARE

MATERIAL









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Causation Test--MODIFIED OBJECTIVE TEST: Standard must be developed to determine

whether the patient would have decided against the treatment had he been informed of its risks.

whether the average prudent person in plaintiff‘s position, informed of all material

risks, would have foregone treatment.

 what a reasonable person in the patient’s position have done if there had been

proper disclosure of attendant risks



CAUSATION IS THE LAST DEFENSE OF THE D IF FAILED ANY OF 4 TESTS





Hollis v. Dow Corning Corp. (SCC)

DUTY TO WARN:

 A manufacturer of a product has a duty in tort to warn consumers of dangers inherent in

the use of its product of which it has knowledge or ought to have knowledge.

 Generally duty is owed directly by the manufacturer to the ultimate consumer, EXCEPT:



LEARNED INTERMEDIARY RULE

 Applicable either where a product is highly technical in nature and is intended to b used

only under the supervision of experts, or where the nature of the product is such that the

consumer will not realistically receive a direct earning from the manufacturer before

using the product.

 Manufacturer can only be said to have discharged its duty to the consumer when the

intermediary‘s knowledge approximates that of the manufacturer.



-it is no defence for manufacturer to claim that even if it had informed intermediary, he would

have ignored info anyway









27

NONFEASANCE

 the common law distinguishes the wrongful infliction of harm (misfeasance) from the

mere failure to prevent harm (nonfeasance)



Crocker v. Sundance Northwest Resorts (SCC)

 one is under a duty not to place another person in a position where it is foreseeable that

that person could suffer injury.

 the resort‘s omission of duty to monitor the conduct of others created a risk-a special

relationship existed b/c he consumed the alcohol on their premises, and they are making

money from the venture.



RULE: One is under a duty not to place another person in a position where it is foreseeable that

that person could suffer injury. The P‘s inability to handle the situation in which he has been

placed (b/c if youth, intoxication, etc.) is an element of determining how foreseeable the injury is.



TEST re: standard of care: Relevant to relate the probability and gravity of the injury to the

burden that would be imposed upon the D in taking avoiding measures



RULE: Once it is determined that a duty of care b/w P and D exists, must determine whether the

standard of care was met



Just v. Queen in the Right of British Columbia (SCC)

 there is a duty of care for the safety of individuals unless there has been a policy decision

of the execution of operations; distinguish b/w Policy and Operational decisions.

 can‘t check every road for every boulder w/in budget restrictions

J. Cory-decides there is a duty of care but b/c of policy decisions liability not

imposed in light of fact the cost of liability would be astronomical.

- Check legislation; what is the public authorities‘ responsibility

- are they permitted to perform this function

- are they empowered

- are they required/exempted



 exempt from duty if modified on basis of policy decision

 unless a statute of care exempts liability, the government will owe a duty but the standard

of care will vary in light of all surrounding circumstances including budgetary constraints

and the availability of qualified personnel and equipment b/c budgetary matters are policy

and courts cannot go behind policy decisions.



NOTE 7:

Jane Doe v. Metropolitan Police

 courts found in the Jane Doe case that the police did owe a duty of care to the discreet

group of women that was easily identified and they could have been warned accordingly.

 a special relationship existed b/c small group of potential victims, easily identifiable

group to warn, and the risk could have been eliminated at a very small cost









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Childs v. Desormeaux (SCC)



RULE: social host does not owe duty of care to person injured by a guest who has consumed

alcohol.



RULE: commercial alcohol providers do owe a duty to third party members of the public who

are inured as a result of the drunken driving of the patron

party host has neither an institutionalized method of monitoring alcohol consumption

and enforcing limits, nor a set of expectations that would permit him or her to easily do so.



-where the conduct alleged against the defendant is a failure to act, foreseeability alone may not

establish a duty of care.



-a positive duty of care may exist if foreseeability of harm is present and if other aspects of the

relationship between the plaintiff and the defendant establish a special link or proximity.

3 such situations have been identified by the courts:

1. where a defendant intentionally attracts and invites third parties to an

inherent and obvious risk that he or she has created or controls.

(Crocker v. Sundance)

2. Paternalistic relationships of supervision and control, such as those of

parent-child or teacher-student.

-->special vulnerability of plaintiff and formal position of power

of the defendants

3. Where there is a defendant who either exercise a public function or

engage in a commercial enterprise that includes implied responsibilities to the

public at large.







3 themes: risk enhancement and control, autonomy, and reasonable reliance.









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DAMAGES



Andrews & Grand & Toy (SCC)

 there is no duty to mitigate damage, in the sense of being forced to accept less than

reasonable loss, but rather, the duty is to be reasonable

 in tort law, compensation is sought, not retribution.

 Retrospective: put person back in same position he would have been in had accident not

occurred (used in tort law).

 there is a general notion that plaintiffs should mitigate losses, but when there is a choice

between a more and less expensive method of care, it must be judged on reasonableness.



PECUNIARY

 to determine amt for future care must look at years he is going to live.

 to determine amt for lost earnings, must look at years he would have lived.



NON-PECUNIARY

 these are losses that cannot be quantified (i.e. pain and suffering).

 these types of damages should be determined with a ‗functional‘ approach, which attempts to

assess compensation req‘d to provide p with reasonable physical arrangements to make life

more endurable.



PUNITIVE: to punish wrongdoer and deterring both him and other from engaging in similar

conduct in the future.



LECTURE:



Personal Injury Losses



Past Losses

-pecuniary losses (financial)

expenses incurred as a result of injury

past lost income

cost of care



-non-pecuniary losses (non-financial)

i)aggravated damages due to maliciousness



VS.



Future Losses

-pecuniary losses (financial)

diminished earning capacity

cost of care

expenses incurred as a result of injury



-non-pecuniary









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