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LAW Torts

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                                                           LAW207: Torts
                                                     Full Year CAN (2005-2006)
                                              Jennifer Lau (Professor Gordon Christie)

HISTORY OF TORT LAW ........................................................................................................................ 3
LIMITATION PERIODS ............................................................................................................................ 4
NEGLIGENCE ............................................................................................................................................. 4
  HISTORY AND CURRENT STATE OF NEGLIGENCE LAW .......................................................................... 4
  6 ELEMENTS OF NEGLIGENCE .................................................................................................................. 5
  BURDEN OF PROOF IN NEGLIGENCE ........................................................................................................ 5
     Res Ipsa Loquitur ("The Thing Speaks For Itself") .......................................................................... 5
     Statutory Onus Shifts ........................................................................................................................... 5
     Inferring Causation ............................................................................................................................. 5
     Exceptions where Shifting the Onus to the Defendant is Justified .................................................... 5
  #1: DUTY (QUESTION OF LAW) ................................................................................................................ 6
     Neighbour Principle of Duty ............................................................................................................... 6
     Unforeseeable Plaintiff ........................................................................................................................ 6
     Anns / Kamloops / Cooper Test ........................................................................................................... 6
     Liability of Public Authorities ............................................................................................................. 7
     Duty & Intervening Forces .................................................................................................................. 8
     Failure to Act ....................................................................................................................................... 8
        Economic Benefit ............................................................................................................................ 8
        Social Host Liability ....................................................................................................................... 8
        Relationships of Control ................................................................................................................ 9
        Creation of Danger ......................................................................................................................... 9
        Relationships of Reliance ............................................................................................................... 9
        Rescuer's Duty: Peril Invites Rescue ............................................................................................ 9
        Statutory Duties to Act .................................................................................................................. 9
     Pure Economic Loss ............................................................................................................................ 9
        Theory of Concurrency .................................................................................................................10
        Negligent Misrepresentation ........................................................................................................10
        Fraudulent Misrepresentation .....................................................................................................11
        Economic Losses Caused by Defective Products and Structures ..............................................11
        Relational Economic Losses .........................................................................................................11
  #2: STANDARD OF CARE (QUESTION OF FACT) ......................................................................................12
     Unreasonable Risk ..............................................................................................................................12
        Learned Hand Test. ......................................................................................................................12
     Custom .................................................................................................................................................13
     Statutory Standards .............................................................................................................................13
     Reasonable Person ..............................................................................................................................13
        The Young ......................................................................................................................................13
        The Elderly ....................................................................................................................................14
        Physically Disabled ........................................................................................................................14
        The Mentally Disabled / Loss of Consciousness ..........................................................................14
        Doctors / Professional Negligence ................................................................................................15
  #3: BREACH ..............................................................................................................................................15
  #4: CAUSATION (QUESTION OF FACT) ....................................................................................................15
     Determining Causation :Materially Increased Risk vs Robust & Pragmatic Common Sense ............16
     "But For" Test ....................................................................................................................................16
     Thin Skull Rule. ..................................................................................................................................16
     Material Contribution Test .................................................................................................................16
     Loss of Chance ....................................................................................................................................16
  #6: REMOTENESS (QUESTION OF LAW) ..................................................................................................17
     Various Tests of Remoteness ..............................................................................................................17
        Historical Directness Test ............................................................................................................17
        Reasonable Foreseeability (Probability) Test .............................................................................17
                                                                                                                                                              2

         Possibility of Injury Test...............................................................................................................18
         Type of Injury Test .......................................................................................................................18
     The Thin-Skull Problem and Remoteness ..........................................................................................18
     Novus Actus Interveniens: True Intervening Forces.........................................................................18
         2nd Accidents .................................................................................................................................18
         Duty on Rescuers: "Peril Invites Rescue"...................................................................................18
         Intervening Medical Errors..........................................................................................................19
  DEFENCES TO THE NEGLIGENCE ACTION ...............................................................................................19
     Contributory Negligence .....................................................................................................................19
         Last Chance Doctrine ...................................................................................................................19
         Seatbelt Defence. ...........................................................................................................................20
     Voluntary Assumption of Risk ............................................................................................................20
     Illegality ...............................................................................................................................................20
  #6: DAMAGES ...........................................................................................................................................21
     General Principle of Damages............................................................................................................21
               Psychiatric Damage .............................................................................................................21
     Assessing Damages for Multiple Defendants: ...................................................................................21
     Joint and Several Liability ..................................................................................................................21
     Crumbling Skull Rule .........................................................................................................................22
     Lump-Sum Payments ..........................................................................................................................22
     Pecuniary Losses .................................................................................................................................22
     Non-Pecuniary Losses ........................................................................................................................22
     Punitive Damages ...............................................................................................................................22
INTENTIONAL TORTS ............................................................................................................................23
  ACCIDENTAL, NEGLIGENT & INTENTIONAL CONDUCT .........................................................................23
  VOLITION AND CAPACITY .......................................................................................................................23
  ASSAULT ...................................................................................................................................................23
  BATTERY ..................................................................................................................................................24
  SEXUAL WRONGDOING ............................................................................................................................24
  INTENTIONAL INFLICTION OF MENTAL SUFFERING...............................................................................25
  FALSE IMPRISONMENT ............................................................................................................................25
  MALICIOUS PROSECUTION ......................................................................................................................25
         Abuse of Process ............................................................................................................................26
  INVASION OF PRIVACY .............................................................................................................................26
  TORT OF “APPROPRIATION OF ONE’S PERSONALITY” ..........................................................................26
  TORT OF INDUCING BREACH OF CONTRACT ..........................................................................................26
  DEFENSES TO INTENTIONAL TORTS ........................................................................................................26
     Consent ................................................................................................................................................27
         Consent in the Sporting Context. .................................................................................................27
         Consent in the Medical Context ...................................................................................................27
     Self-Defence ........................................................................................................................................27
     Provocation .........................................................................................................................................28
     Necessity ..............................................................................................................................................28
     Legal Authority ...................................................................................................................................28
STRICT LIABILITY ..................................................................................................................................28
  ESCAPE OF A DANGEROUS SUBSTANCE BEING USED FOR A NON-NATURAL PURPOSE ..........................29
  DEFENCES TO STRICT LIABILITY ............................................................................................................29
     Consent of the Plaintiff .......................................................................................................................29
     Default of the Plaintiff ........................................................................................................................29
     Act of God ............................................................................................................................................29
     Deliberate Act of Third Person ...........................................................................................................29
     Legislative Authority ...........................................................................................................................29
PRODUCT LIABILITY .............................................................................................................................29
  INTERMEDIATE INSPECTION....................................................................................................................30
  DUTY TO WARN .......................................................................................................................................30
  WARNINGS AND THE LEARNED INTERMEDIARY .....................................................................................30
                                                                                                                                                              3

VICARIOUS LIABILITY ..........................................................................................................................31
  EMPLOYER-EMPLOYEE RELATIONSHIPS.................................................................................................31
     1)    Who is an Employee? ................................................................................................................31
     2)    Course of Employment: unauthorized modes of committing unauthorized acts .......................31
NUISANCE ..................................................................................................................................................32
  PUBLIC NUISANCE....................................................................................................................................32
  PRIVATE NUISANCE .................................................................................................................................32
  DEFENCES TO NUISANCE .........................................................................................................................33
     1)    Contributory negligence ............................................................................................................33
     2)    Consent ......................................................................................................................................33
     3)    Acts of normal husbandry .........................................................................................................33
     4)    Defence of Statutory Immunity .................................................................................................33
DEFAMATION ...........................................................................................................................................34
  LIBEL OR SLANDER? ................................................................................................................................34
  3 ELEMENTS OF DEFAMATION ................................................................................................................34
     (1) Material was Defamatory ..............................................................................................................34
     (2) Material Refers to the Plaintiff .....................................................................................................35
     (3) Material must be published ...........................................................................................................35
  DEFENCES TO DEFAMATION ....................................................................................................................35
     Charter ................................................................................................................................................35
     Truth ....................................................................................................................................................35
     Consent ................................................................................................................................................36
     Absolute Privilege ...............................................................................................................................36
     Qualified Privilege ..............................................................................................................................36
        1)      Protection of one's interest ..................................................................................................36
        2)      Common interest or mutual concern .................................................................................36
        3)      Moral or legal duty to protect another's interest ..............................................................36
        4)      Public interest ......................................................................................................................37
     Fair Comment .....................................................................................................................................37

History of Tort Law
Tort Law's Guiding Principle: State helps people receive compensation who are injured by others.

Sources of Tort Law: Judgemade common law // statutes (i.e. Negligence Act, Libel & Slander Act,
Privacy Act, Limitation Act, etc)

Look at Fault Now: Tort law originally used directness & indirectness to distinguish between writs of
trespass & actions on the case, respectively. Post-1800s, the concept of fault became central to tort law.
Now, we focus on the defendant's conduct, rather than whether interference was direct or indirect.
In negligence, we ask whether the defendant owed a duty. In intentional torts, we ask whether the
defendant acted while knowing (or was substantially certain) of the consequences.

Historical Directness Test: Would the result have occurred had it not been for the intervention of an
independent agency?

Common Law's Writ of Trespass: helped victims of "direct and forcible interference".
    Directness: Where an injury flows naturally from the defendant's act without the necessity of an
     intervention by another independent factor (Scott v. Shepherd, exploding-squib, 1774)
           Directness should be defined broadly so as not to leave the plaintiff potentially without a
              remedy.
    Purpose: To preserve peace and order in society & avoid violent confrontations
    No requirement of intention or wrongful motive on the part of the defendant
    Actionable without proof of damage
    Present-Day Incarnation: Intentional Torts
                                                                                                              4

Equity's Action on the Case: Where consequential damage has been caused by the defendant's wrongful
conduct
     Indirectness: Where the defendant's act merely creates a situation of danger and requires an
        additional act to produce the ultimate injury
     Purpose: A less rigid remedy than the writ of trespass; no limitation periods; injunctions
     Not actionable without proof of damage
     Present-Day Incarnation: Negligence; fiduciary obligations

Limitation Periods
Tort actions must take place within a certain timeframe to give defendants peace of mind. Limitation
periods are governed by statutes and are jurisdiction-specific.
     BC Limitation Act: 2 year general limitation period; 6 year period to catch non-2-year injuries; 30
         year ultimate limitation period
     Covered Actions: personal injury / damage to property / professional negligence / fraud or deceit
         / willful concealment / relief from consequences of mistake / Family Compensation Act / breach
         of trust

Discoverability Rule: The clock starts running when damage is objectively discovered
     Example: Plaintiff wants to sue doctor for leaving surgical sponges inside him. Clock starts
        ticking when a reasonable person would've discovered that the sponges (doctor's breach of duty)
        had led to the plaintiff's injuries.

Exception for Incest Cases: Limitation period starts when the plaintiff discovers a potential cause of
action. There is a rebuttable presumption that this discovery will occur in therapy. The presumption can
be rebutted by the defendant if there is evidence that the link was realized by the victim without the benefit
of therapy, which would shorten the limitation period (M.(K.) v. M.(H.), 1992)

Launching an Action in BC:
   1) Identity of defendant must be known to plaintiff
   2) Plaintiff must reasonably know the facts of the case
   3) Limitation period can run from the point when the plaintiff obtained appropriate advice from
       experts (lawyers, doctors, engineers, etc) on whether their cause of action would be reasonably
       successful

Negligence

History and Current State of Negligence Law
Public Calling: Historically, negligence was restricted to people in the public calling (i.e. professions).
Courts would measure charges of negligence against the specific code of conduct.

Industrial Revolution: An increase in industrial accidents during the Industrial Revolution meant that
workers were unprotected because industrialists were not in the public calling. This led to calls for the law
of negligence to expand beyond these restricted public calling categories.

Current View of Negligence: Today, negligence focuses on fault rather than causation; relationships
rather than pre-determined categories. Look at the conduct of the negligent actor: Did the tortfeasor breach
their duty of care to the plaintiff?

You do not owe a duty to the world. You only owe a duty to those people who you might reasonably
foresee that you could injure (Palsgraf v. Long Island Railroad Co, fireworks-cause-scales-to-hit-far-off-
woman).

Insurance: Insurance companies defend against claims violently in order to protect their profits.
                                                                                                                5

Feminist view of torts: We owe a responsibility to other people. Once you eradicate your responsibility,
the law steps in. Conflicts with traditional view of torts which holds that people can do whatever they
want - and the law will only step in if your reckless actions hurt someone.

6 Elements of Negligence
    1. Duty of Care
    2. Standard of Care
    3. Breach
    4. Causation
    5. Remoteness
    6. Damages

Burden of Proof in Negligence
The burden of proof in a civil action is the balance of probabilities. Where the parties are found to be
equally liable (50-50), the plaintiff will lose (because the plaintiff has the onus of proof) (Wakelin v. The
London and S.W. RY. Co., Train-Hits-Man-but-doesn't-meet-onus, 1886).

Onus of Proof in Negligence: The plaintiff has the initial onus of proof to show that the defendant was
negligent, by showing that (1) the 6 elements are present, and that (2) negligence has occurred. Once the
plaintiff has met their burden, the onus switches to the defendant to prove defenses (i.e. contributory
negligence) and refute the plaintiff's case to the point where the defendant's case is more than 50%
believable.

Non-Suit Stage: Plaintiff must show, on BOP, that there is evidence on each element of the claim to get
past the non-suit stage. High threshold, as evidence must be of a certain nature to get past BOP.

Res Ipsa Loquitur ("The Thing Speaks For Itself"): Common law doctrine which was laid to rest in
Fontaine v. ICBC (drowned-man-no-one-sees-accident, 1998). Historically, res ipsa loquitur was an onus-
shifting tactic which inferred negligence which allowed the plaintiff to get past the non-suit stage by
presenting circumstantial evidence on each element which would create a prima facie case for negligence.
The onus then switched to the defendant to disprove negligence on BOP (Byrne v. Boadle, Falling Barrel,
1863). Fontaine established the circumstantial evidence can be used to prove negligence, but it does not
shift the onus to the defendant. The onus of proof always rests on the plaintiff to show negligence, on a
balance of probabilities. In the end, the thing may speak, but when it does, it doesn't say very much.

Statutory Onus Shifts: Statutes may shift the onus of proof to the defendant (overrides CL refutation of
res ipsa loquitur). For example, in car/pedestrian collisions, the Highway Traffic Act shifts the onus of
proof to the driver who must disprove negligence on BOP. The plaintiff need only show that the collision
caused their damage. Makes it easier for pedestrian to get past non-suit motion.

Conspiracy of Silence (US): In the US, the conspiracy of silence in medical malpractice cases has led to a
rebuttable presumption of negligence where all parties are found liable for prima facie negligence. Onus
then shifts to defendants to disprove negligence, on BOP. (Ybarra v. Spangard, Wakes-And-Sues-All,
1944). Not followed in Canada.

Inferring Causation: While the ultimate evidential burden remains with the plaintiff, in the absence of
evidence to the contrary adduced by the defendant, an inference of causation may be drawn even if the
plaintiff has not adduced positive or scientific proof of causation (Snell v. Farrell, doctor-continues-eye-
operation-despite-bleeding). Translation: Where the plaintiff has a strong case, the defendant would be
stupid not to present evidence refuting a causal link between his actions and the plaintiff's injuries.

Exceptions where Shifting the Onus to the Defendant is Justified:
    Multiple Tortious Actors Destroy Proof: Where 2 defendants act negligently, then destroy the
        means of proof by their tortious conduct (Cook v Lewis, 2-hunters-shoot-P, 1951) Cook does not
        apply where P is contributorily negligent since P has himself participated as a negligent actor in
        the proof-destroying fact (Lange v. Bennett, P-enters-line-of-fire, 1964)
                                                                                                             6

        Conspiracy of Silence: Where multiple negligent parties are maintaining a conspiracy of silence
         (Ybarra v. Spangard - not followed in Canada)
        Multiple Tortious Actors, but only 1 Cause: Where only 1 defendant has caused the injury, the
         onus shifts to the defendants to exculpate themselves of liability. Both are negligent; both know
         the story. Otherwise, both defendants will be found liable (Cook v. Lewis).
        Defendant Knows All: Where the subject matter of the allegation lies particularly within the
         knowledge of one party (i.e. defendant is maintaining silence) (Cook v Lewis)
              o Power of Parties: All evidence is to be weighed according to the proof which it was in
                   the power of one side to have produced, and in the power of the other to have
                   contradicted. So a plaintiff's skimpy evidence against a doctor will be weighted more
                   heavily because of their lack of power.

#1: Duty (Question of Law)

Donoghue v. Stevenson (Paisley-snail-Ginger-Beer, 1932) expanded negligence to focus on the
relationship b/t parties by establishing a duty of care, rather than on pre-determined categories.

Neighbour Principle of Duty: You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.

Who is your Neighbour? A person who is so closely and directly affected by your act. Liability is
limited: Only certain classes of people and certain actions will raise liability for negligence

Duty asks the Question: Is this D obligated to take reasonable care for the protection of this P?

Categories of Duty are not closed: Anns/Kamloops/Cooper test establishes whether a new duty of care
should be imposed.

No Duty to the World: You only owe a duty to those people who you might reasonably foresee that your
actions could injure. There is a range of reasonable foreseeability (Palsgraf v. Long Island Railroad Co,
fireworks-cause-scales-to-hit-far-off-woman). See Unforeseeable Plaintiff.

Unforeseeable Plaintiff
General Rule: You do not owe a duty to the world at large. You only owe a duty to those who you can
reasonably foresee might be injured by your (in)actions (Donoghue v. Stevenson; Palsgraf).

Negligence in the abstract is not possible. You can only owe a duty to specific persons: those who you can
reasonably foresee your actions injuries. Must determine whether the defendant owed a duty of care to this
particular plaintiff (Hay v. Young, nervous-shock-woman-sees-bike-accident). You cannot sue for a
personal wrong done to yourself - you cannot sue as the vicarious beneficiary of a breach of duty
(Palsgraf). A pregnant mother owes no duty of care to her unborn child (Dobson, driving-mother-injures-
fetus).

Anns / Kamloops / Cooper Test: Only apply to find a new duty, and then only for economic loss
Indeterminate Liability is Bad: Without establishing duties, there would be indeterminate liability to an
indeterminate class for an indeterminate time. Anns/Kamloops/Cooper solves this problem by setting out
the test for finding a new duty. Note that there is usually a duty where physical damage is established - the
murkiness arises where only economic loss has occurred.

Anns v. Merton London Borough Council (HL, 1977) established the two-stage test to determine
whether a new duty of care should be established:
   1) Is there a relationship of sufficient proximity to warrant a prima facie duty of care?
   2) If so, are there any policy considerations which ought to negative or limit the scope of duty // the
       class of persons // the damages (floodgates argument)?
                                                                                                             7

The UK backed away from Anns in Murphy v. Brentwood District Council (1990) in favour of a category-
based approach.

However, Canada endorsed the Anns test in Kamloops v. Nielsen (Stop Order Ignored, SCC, 1984) with
the following re-articulation:

    1) Is there a sufficiently close relationship [proximity] between the parties…so that, in the
       reasonable contemplation [foreseeability] of the [defendant], carelessness on its part might
       cause damage to that person? If so:
    2) Are there any considerations which ought to negative or limit (a) the scope of the duty and (b)
       the class of persons to whom it owed or (c) the damages to which a breach of it may give rise?

SCC affirmed Anns/Kamloops in CNR Co. v. Norsk Pacific Steamship Co. (Ship Hits Bridge, SCC, 1992).
See Relational Economic Loss for more details on CNR v. Norsk.

The Anns/Kamloops test became the Anns/Kamloops/Cooper test with Cooper v. Hobart (sues-Registrar-
of-Mortgage-Brokers, 2001, SCC). The new approach incorporated policy into the "proximity" branch
as well as the 2nd policy branch. Note that this test is still only to be applied to situations where a duty of
care has not already been established by the courts:

      1) Is there a duty of care?
         a) Was there a reasonable foreseeability by the defendant of the impact of his actions
             on the plaintiff?
         b) Is there sufficient proximity between the 2 parties to impose a duty of care on the
             defendant?
               Are there policy considerations which negative this proximity?
      2) If there is a duty of care, are there any policy considerations which negative this
         duty of care?

Liability of Public Authorities: Can public authorities (i.e. gov't) owe a duty?
Government institutions can owe a duty of care: Donoghue principle applies unless there is some
justification or valid explanation for its exclusion (Home Office v. Dorset Yacht, delinquent-youths-
escape-and-destroy-boat). Set the stage for Anns.

In Canada in 1984, it became possible to sue public authorities in tort action (Kamloops). You cannot sue
the government for policy decisions unless they are in bad faith or irrational. You can, however, sue the
government for operational decisions (Just v. B.C., Falling-Boulder-Crushes-Man-and-Daughter, SCC,
1989).

However, once a policy is adopted, it must be carried out in a reasonable manner. Public authority liability
was considered in Kamloops v. Nielsen (Stop Order Ignored, SCC, 1984), where the Anns approach was
followed and the municipality was held liable when it did not enforce a stop order on a faulty home which
was eventually sold.

Note that Odhavji Estate v. Woodhouse (Police-Shooting-Bad-SIU-Investigation, 2003, SCC) established
that a direct causal link was not a condition precedent to a finding of proximity. Public expectations and
statutory obligations can establish proximity.

Constitutional Torts: Charter violations are usually directed through the Human Rights Tribunals.
However, Jane Doe (balcony-rapist, 1998, SCC) established that private individuals could sue the
government under tort law for Charter violations where their negligence claims had failed (due to
policy). Note that damages will only be assessed once - for either the Charter violation or the injury due to
negligence. The SCC has not ruled on the standard required for determining governmental Charter
breaches, although the Saskatchewan court held that the standard was recklessness (Chrispen v. Kalinowski,
1997)
                                                                                                              8

Note that there is no tort of discrimination in Canada as human rights violations must be directed through
the Human Rights Tribunals (Seneca College, Woman-sues-Seneca-College-for-discrimination, 1981).
Therefore, an individual who is discriminated against by another individual or non-governmental body (that
is not covered by the Charter) could not sue under tort.

Duty & Intervening Forces: Where D owes a duty to prevent 3rd party misconduct from occurring
General Rule: Where there is a duty to take precautions against the reasonably foreseeable interventions of
a 3rd party (whether it is a known party or a stranger), there is no issue of novus actus (Harris v. TTC,
rowdy-kid-loses-arm-in-bus).

Test: Does the defendant owe a duty to the plaintiff to take reasonable care to prevent 3rd party misconduct
from further injuring the plaintiff?
     If duty exists, then consider whether reasonable care was exercised by D in carrying out duty.
     If no reasonable care, then consider whether the type of misconduct and the type of injuries caused
         by the 3rd party were reasonably foreseeable.
     If injuries were RF, then the defendant will be liable for injuries caused by the 3rd party.

Standard of Foreseeability for Duty of Defendant for 3rd party misconduct: "Likelihood" is
insufficient. The defendant must have presented the wrongdoer with the means to commit the wrong, in the
circumstances where it is obvious or very likely that he will do so. The standard of foreseeability will be
determined by policy.

Failure to Act
No Legal Duty to be a Good Samaritan: Donoghue v. Stevenson holds that you only have a duty to those
persons whom you can reasonably foresee that your acts or omissions will injure. There is no CL duty to
assist people so long as you were not the tortfeasor (although Quebec's Civil Code imposes a Good
Samaritan duty):
      Encouraging self-reliance
      Avoiding the legal enforcement of morality
      Protecting innocent persons from harm (the incompetent rescuer)
      Crowded Beach Problem: How to decide who has an obligation to help?
      Media Frenzy Problem: May not really be a widespread problem
      Meddling Amateur: Allowing trained professionals to do their work
      Hard to define the rule governing gratuitous aid (impending death? Bodily harm? Little or no
         danger to yourself? Inaction will worsen situation? Criminal liability? Compensation?)

Economic Benefit
Jordan House (drunk patron hit by car, 1973, SCC) held that in invitor-invitee relationships of economic
benefit, the defendant owes a duty of care to the plaintiff to prevent reasonably foreseeable harm. Failure
to take positive action to prevent harm will result in a breach of duty. Specific actions needed to prevent
harm will depend on the facts. Defendant must have subjective knowledge of the plaintiff's drunkenness
(or potential for injury). Note that the plaintiff's method of departure is a factor (whether involuntary or not)
in determining the reasonable foreseeability of harm, but not the sole determining factor. Note that Jordan
House came before Anns/Kamloops/Cooper, but way after Donoghue. Jordan House was affirmed by
Crocker v. Sundance (drunk-inner-tubers, 1988, SCC).

Social Host Liability
Social hosts may owe a duty of care to 3rd parties who are injured as the result of a negligent guest, whose
actions were impaired by alcohol consumed at the social host's residence (Childs v. Desormeaux, drunk
driver hits Zoe Childs, 2004, OCA). Liability may arise where the social host had reasonable foreseeability
of harm and sufficient proximity: that is, they knew that an intoxicated guest was driving and did nothing to
protect innocent 3rd parties. Factors to consider include (fact-driven):
      Did social host directly serve the guest?
      Did social host know how much alcohol the guest had consumed?
      Did social host know that the guest was impaired when he left?
                                                                                                              9

However, social host liability may be negated by policy concerns: increase homeowners insurance
premiums // inordinate burden on social hosts // unclear social host obligations

In Childs, Desormeaux's drinking history was not a sufficient basis to impose a duty on the Zimmerman
social hosts to monitor that guest's drinking at a BYOB party where alcohol was neither provided nor
served by the hosts.

Differences between the social host and commercial host: control over liquor // drinking with guests //
familiarity with patrons // professional staff (Kelly v. Gwinnell, New Jersey SC)

Social Host Liability as Deterrence? Doubtful that SH liability would deter drunk drivers. Gov't has
financial resources & legislative ability to regular social host responsibility & victim compensation.

Relationships of Control
Where one party exerts control over another, there is a duty imposed on the stronger party to act for the
protection of the weaker party (Parent-child // Teacher-pupil // Doctor-patient // Prison-prisoner). Note that
social host liability could come under the category of relationships of ontrol, but may also fall under
relationships of economic benefit.

Creation of Danger
Where the defendant directly participates in the creation of a hazard (whether he was negligent or not), he
has a common law duty to minimize the danger. Where the defendant fails to minimize the hazard, he will
be liable for negligence (Oke v. Weide, P gets speared by D's traffic pole accident, 1963, ManCA). Note
that a person who simply observes a hazard has no duty to act. Some provincial statutes may require you to
stop and assist if you have participated or caused an accident.

Relationships of Reliance
An individual normally has no duty to assist if they did not negligently injure the plaintiff. But where the
defendant begins to offer assistance, they have a duty to follow through with that assistance in a reasonable
fashion (Zelenko v. Gimbel Bros, woman dies in store backroom, 1935, NYSC). Where the defendant has
begun to assist the plaintiff, and the plaintiff has come to rely on the defendant's assistance, the defendant
has a duty to continue that assistance in a reasonable manner (Morash, insurance company forgets to tell
plaintiff about expired policy, 1978, NBCA).

Rescuer's Duty: Peril Invites Rescue
A rescuer owes a duty to subsequent rescuers only if the initial rescue attempt was negligent (Horsley v.
MacLaren, captain not negligent in backing boat up). There may be a statutory duty to rescue. In BC, the
Good Samaritan Act holds that a rescuer will not be liable for injury unless there was gross negligence -
but liability will be imposed if the rescuer was employed expressly as a rescuer, or rescues with a view to
gain. The Quebec Civil Code imposes a statutory duty to assist another person whose life is in peril, but
exempts rescuers from liability for injury unless injury was due to his intentional or gross fault. The
Quebec Charter also has a Good Samaritan provision which is unique in Canadian law.

Statutory Duties to Act
The mere breach of a statute does not automatically create tortious liability. The breach can be used as
evidence of tortious action, however to determine whether the defendant met or breached its duty
(Saskatchewan Wheat Pool). However, the courts will always question whether the statute is reasonable
(Ryan v. Victoria). Where a statute imposes an obligation on public authorities, and a situation arises
which the public authority was not initially responsible for, the public authority can be found liable if they
did not perform their duty under the statute (O'Rourke v. Schacht, OPP-fail-to-mark-accident-area). Note
that this is a fact-driven area of law. See Jane Doe for a messier example where a public authority was
found liable for breaching a plaintiff's Charter rights by failing to live up to their statutory duties under the
Police Act to prevent crime. And finally, consider whether discrimination constitutes nonfeasance
(Bhaduria v. Seneca College): is employment discrimination truly a failure to act (according to the statute)?

Pure Economic Loss
                                                                                                           10

Pure economic loss recovery has only existed since the 1960s. Historically, only physical damages &
consequential economic loss (financial loss causally connected to physical damage) were compensable in
the law of negligence.

Theory of Concurrency: Relationship b/t Contractual Terms & Negligent Misrepresentation
While a duty of care can arise outside of non-contractual relationships, parties are free to increase or
decrease this duty of care via contract. A contract can impose certain obligations on the respective parties.
Likewise, a duty of care may only exist within a certain contractual relationship, but not outside of that
contract. If that occurs, then an additional common law duty cannot be imposed.

However, since contracts often cannot cover the entire range of possible damages and obligations, the law
of negligence steps in to fill gaps left open by the contract (BG Checo, clearing-Right-of-Way-inadequate).
Alternatively, the courts may imply terms where the contract is unclear.

Theory of Concurrency: If a duty of care arises under both the contract & common law, the plaintiff can
choose whether to sue under tort of contract (Central Trust Co. v. Rafuse (Client-sues-solicitor, 1986,
SCC). However, concurrent liability in tort will not be allowed if its effect would be to let the plaintiff
escape a contractual limitation of liability.

When contracts & torts collide, 3 classes of cases arise:
   1) Where the contract stipulates a more stringent obligation than the law of tort would impose -
       the plaintiff is likely to sue under contract
   2) Where the contract stipulates a lower duty than that which would be presumed by the law of
       tort in similar circumstances - plaintiff likely to sue under tort
   3) Where the duty in contract and the common law duty in tort are co-extensive - plaintiff likely
       to sue under tort law in order to get higher damages based on losses (if misrep hadn't occurred,
       what would the plaintiff's original position be?) rather than under contract which bases damages
       on expectation (if misrep was true, where would the plaintiff be?).

Negligent Misrepresentation
The courts first recognized the possibility of recovery for negligent misrepresentation in Hedley Byrne
(Bank-endorses-client-Exclusion-clause, 1963, HL).
        1) Was there a special relationship between the two parties?
        2) Is it reasonable for the plaintiff to trust the defendant? [objective test]
        3) Is it reasonable for the defendant to expect reliance? [objective test]

Queen v. Cognos (Employee-told-of-Superjob, 1997, SCC) establishes the five-part test for determining
negligent misrepresentations: [rearticulated in Hercules Management]
    1) There must be a duty of care based on a special relationship
            a. Reasonable Foreseeability: Representor must reasonably foresee that the representee
                would rely on the representation
            b. Reliance: Representee must reasonably rely on the representation (see indicators)
    2) Representation must be untrue, inaccurate and misleading
    3) Representator must have acted negligent in making the misrepresentation
    4) Representee must have had reasonable reliance on misrepresentation [move to #1]
    5) Reliance must have been detrimental [causation / damages]

However, recovery may be limited to cases where the statements are made to a known class with a known
purpose. Otherwise, the liability is indeterminate and policy considerations must negate this prima facie
duty of care. In Hercules Managements Ltd. v. Ernst & Young (Investors-rely-on-Bad-Auditors-Report,
1977, SCC), the court found a special relationship and reasonable reliance, but found that indeterminate
liability negated the recovery.

Some indicators of Reasonable Reliance
   1. Defendant had a direct or indirect financial interest in the transaction related to the rep.
   2. Defendant was a professional or sb who possessed special skill, judgment or knowledge.
                                                                                                            11

    3.   The advice or information was provided in the course of the defendant's business.
    4.   The information or advice was given deliberately, and not on a social occasion.
    5.   The information or advice was given in response to a specific enquiry or request.

Fraudulent Misrepresentation (not on exam - just be aware that it is different from neg. misrep.)
5-step test for Fraudulent Misrepresentation (Derry v. Peek, 1889, House of Lords)
     1. There must have been a false representation or statement
     2. It must have been knowingly false
     3. It must have been made with the intention to deceive the plaintiff
     4. It must have materially induced the plaintiff to act
     5. It must have resulted in damage

Difference b/t Fraudulent & Negligent Misrep: Whether representation was knowingly false and there
was intent to deceive. Many BC leaky condo cases have been litigated under fraudulent misrep.

Note that fraudulent misrepresentation is hard to use successfully because you must show intention.

Economic Losses Caused by Defective Products and Structures
Originally, plaintiffs could not recover economic losses caused by defective products and structures. In
Rivtow Marine Ltd. v. Washington Iron Works et al (dangerous-crane, 1973, SCC), the plaintiff could not
claim repair costs or lost profits despite the court finding a duty to warn. Laskin dissented, arguing that
negligent builders should be liable for repairing all dangerous defects, regardless of whether the current
owner has discovered or addressed it.

Laskin's reasoning was used in Winnipeg Condo (Cladding-falls-off-building, 1995, SCC) where
contractors who design and construct buildings will owe a duty in tort to subsequent purchasers of the
building if it was foreseeable that a failure to take reasonable care in constructing the building would create
defects that pose a substantial danger to the health and safety of the occupants. Where negligence is
established, the contractor should be liable for the reasonable cost of repairing the defects and putting the
building back into a non-dangerous state.

Liability is limited to: (1) the inhabitants of building, (2) the cost of repairing building to a non-dangerous
state, and (3) repairs only during useful life of building. Also, caveat emptor will not negate a duty in
tort when the builder is the best placed to deal with the risk of emergent defects.

Relational Economic Losses
Issue: Can A, who contracts for the use of property belonging to B, sue C who damages that property, for
losses resulting from A's inability to use B's property during the period of repair?

Generally, 3rd parties cannot sue for relational economic loss. It is not fair or just to compensate a
single 3rd party, when others may have been injured as well. Insurance or Contract may also be better
methods of dealing with relational economic loss (CNR v. Norsk, barge-hits-bridge, 1992, SCC).

However, the categories of negligence are not closed for relational economic loss. 3rd parties can argue
that a new duty of care should be imposed, based on the test set out by McLachlin in Bow Valley Husky
(broken-oil-rig, 1997, SCC).

    1.   Does the case fit into any of the 3 pre-established categories under the exclusionary rule? (CNR
         v. Norsk)
              a. Joint Venture: where 3rd party claims that they are in joint venture with A or B
              b. General averaging contribution: All parties can recover when cargo ship sinks
              c. Possessory or proprietary interest: 3rd party has possessory/proprietary interest in one
                   of the parties' property (i.e. easement, lease).
    2.   If not, does the Anns/Kamloops test allow a new duty of care to be established?
                                                                                                          12

             a.   Is there a sufficiently close relationship between the parties…so that, in the reasonable
                  contemplation of the [defendant], carelessness on its part might cause damage to that
                  person? If so:
             b.   Are there any policy considerations which ought to negative or limit (a) the scope of the
                  duty and (b) the class of persons to whom it owed or (c) the damages to which a breach
                  of it may give rise?

Bow Valley was decided before Cooper (2001), but it may be likely that the test would now include a
consideration of policy at the (2a) branch as well.

Known Plaintiff Test crushed: Stevenson's "known plaintiff test" from CNR was dismissed by fellow
justices as unjust, as this would merely favour parties who were "notorious" over private parties.

#2: Standard of Care (Question of Fact)
Standard of Care asks the question: Did the defendant take all reasonable care to avoid causing injury to
the plaintiff? If no, then the defendant has breached the standard of care.

Objective Test: What would a reasonable person have done in the same situation, given the established
duty of care?
     What, not Why: Actions/mental state of the particular defendant are generally irrelevant
     Various Exceptions to the Objective Test: Children / mentally & physically disabled /
         professionals / custom / statutory standards

Unreasonable Risk
Fantastical Possibilities: Donoghue v. Stevenson tells us to avoid acts that would reasonably foreseeably
injure our neighbour. But fantastical possibilities need not be guarded against as every reasonable
person needs to absorb some risk of damage in the world (Bolton & Others v. Stone, Flying-Cricket-Balls-
hit-Bystander). Defendants need only avoid acts which have a substantial risk of injuring the plaintiff.

Substantial Risk Test: Would a reasonable person have thought it right to refrain from taking steps to
prevent the danger?
     Grid: Foreseeability/probability (likelihood of damage) versus Harm (extent + severity of
         consequences). If a defendant does not take measures to minimize a substantial risk, they will
         have breached their standard of care.

                               (no standard of care)   (possible standard of care)
                                         Small Risk    Large Risk
                                      Small Damage     Small Damage
                         (possible standard of care)   (definite standard of care)
                                         Small Risk    Large Risk
                                      Large Damage     Large Damage


Magnitude of Risk: The standard of care can be increased in accordance with the severity of loss & the
likelihood of injury (Paris v. Stepney Borough Council (One-Eyed Welder, CA, 1951). We owe different
standards of care to different people.

Learned Hand Test: In U.S. v. Carroll Towing, Learned Hand set forth the equation B < P x L. While
defendants should guard against unreasonable risk which is foreseeable & probable, it's not reasonable to
spend more $$ on remedial measures than the value of the expected loss.
     Burden = Purpose & Cost: The social value of activities (purpose) can help determine the cost of
        remedial measures (Priestman v. Colangelo and Smythson, Bullet Ricochet, SCC, 1959).
        Therefore, the standard of care may be lowered accordingly for activities done in the public
        interest (Watt v. Hertfordshire County Council, Rolling-firetruck-risk-justified-when-saving-life-
        or-limb; Hogan v. McEwan, swerves-to-avoid-dog-but-kills-passenger). In Miller v. Jackson
        (Flying Cricket Balls II, CA, 1977), no negligence was found on the grounds that the cricket pitch
                                                                                                         13

        was in the public interest (Lord Denning loves his sports). Note that this case also involved a
        claim in nuisance, but it was no defence for the cricket club to claim that the plaintiff had brought
        herself to the nuisance.

Custom
Customs may inform standards, but they are not binding.
     Onus of Proof: Party seeking to enforce custom must show existence & reasonableness of custom
       (Waldick v. Malcolm, Non-Salting-Neighbourhood).
     Be Cautious: Plaintiff who is aware of negligent customs may be expected to adjust their
       behaviour - but not entirely, as we should be prudent, but not overly cautious. We should be able
       to move around freely w/o having to worry that other people are trying to hurt us!
     Industrial Customs: Not binding, but the courts give them greater deference. Courts can
       override expert evidence and custom only where the practice offends common sense or flows from
       a gross error (Warren v. Camrose).
            o Test: What was the generally accepted practice at the time of the accident?

Statutory Standards
Statutory breaches may serve as evidence of negligence, but do not raise a prima facie negligence claim (R.
v. Saskatchewan Wheat Pool, Beetle-Larvae, 1983).
      Onus of Proof: Plaintiff must still prove the elements of negligence
      Can't sue after absolute liability: No civil cause of action available for industrial statutes with
         absolute liability.
      Statute must be relevant to claim: Statutes can only protect against that which they were
         intended to protect (Gorris v. Scott, Unpenned-Sheep-Drown, 1874). Likewise, the claimant must
         be someone whom the statute was designed to protect, if arguing that the neglect of a statute
         caused their injury.
      Statute can provide guidance: A defendant who complies with a statutory duty of care does not
         necessarily escape civil liability (Ryan v. Victoria, Motorcycle-Stuck-in-CPR-Tracks-is-the-
         Railway-Co's-Fault, 1999). The court will still consider the reasonable standard of care, which
         may differ from the statutory duty of care. Where a statute is general or permits discretion as to
         the manner of performance, mere compliance with the statute is unlikely to exhaust the standard of
         care

Reasonable Person: Who is this fictional creature?!?
Objective Standard for Negligence: What would the reasonable person have done in the same situation?
(Vaughan v. Menlove, Dim-witted man causes haystack fire)
     Average Person: Liability is based on a person of ordinary intelligence and prudence
     Neither Jury nor Defendant: The reasonable person is not the jury nor the defendant (Arland v.
        Taylor, judge-incorrectly-tells-jury-to-place-themselves-in-D's-position).  Don't consider the
        defendant's personal characteristics (i.e. lack of intelligence).
     Weird Circumstances: If the circumstances are extraordinary or strange, the reasonable person
        may take that into account (Blyth v. Birmingham Water Works Co., unusual-cold-snap).

The Young
When considering the standard of care for a young defendant, you must consider both the fault and the
volition/capacity of the negligent actor.

Three categories of capacity for young tortfeasors (Heisler v. Moke, child-jumping-caused-tractor-
accident):
      1) Under 6: Child is too young to be negligent (no capacity)
      2) Between 6 to 12 years: Modified objective standard which considers the behaviour of a child
           of "like age, intelligence and experience" in the same situation (McEllistrum v. Etches, 1956,
           SCC).
      3) Teenagers: Reasonable person standard (objective test).
                                                                                                           14

Youth engaging in adult activities (i.e. motorized vehicles): Held to an objective standard as one cannot
know whether a driver is a child or adult, and so cannot protect himself against youthful negligence, even if
warned (Dellwo v. Pearson).
     Adult Activity? Whether the impugned activity is an adult activity or some other activity will
        change the standard of care (Nespolon v. Alford et al, teenagers-drop-drunken-friend-off-on-road-
        and-cause-death). If the impugned activity is not-age-related (i.e. dropping friend off versus
        driving), then the young defendant will be held the modified objective standard ("like age,
        intelligence and experience").

Parental Liability: Under common law, parents owe a positive duty of care to their children in that they
must do certain things to avoid creating danger. Under negligence, parents would have a duty of care to
people who their children injure. This has been affirmed by legislation (Parental Responsibility Acts).

The Elderly
Elderly tortfeasors must meet objective standard of care. No leeway.

Physically Disabled
Generally, the physically disabled need only live up to the objective standard for their particular class of
disability. Society expects that a physically disabled person will act reasonably, given their disability. For
example, the blind are held to the standard of a reasonably blind individual (Haley v. London Electricity
Bd., Blind-Man-Trips-in-London).

Unreasonable Plaintiffs: It may not be reasonable for a physically disabled plaintiff to do certain things
and the courts will not find negligence where the plaintiff was being unreasonable (Carroll v. Chicken
Palace, blind-man-trips-down-unfamiliar-stairs; Ryall v. Alsa Road Construction, blind-woman-goes-for-
early-morning-jog-and-falls).

Increased Risk: Remember that the defendant must be more prudent if they have knowledge of the
plaintiff's physical disability (Paris v. Stepney Borough Council, one-eyed-welder).

Surrounding Conditions: Court will take both physical disability & surrounding conditions into account.
In Haley, the defendant's poor signage was negligent because it did not mark holes in a busy London area
where it was to be expected that some blind people would be walking around.

The Mentally Disabled / Loss of Consciousness
Mentally disabled are held to the objective standard as long as capacity and control are established.

Restorative Justice (Overruled): Previously, negligence law did not take the defendant's mental disability
into account in order to provide restorative justice for victims. A mentally disabled person was held to the
same standard as a reasonable person without mental disability (Wenden v. Trika , mentally-disabled-
person-injures-SB-with-car).

Fault & Corrective Justice: The law was clarified in Fiala (bipolar-dude-strikes-D-causing-her-to-injure-
P) which overruled Wenden's emphasis on compensatory tort law. Negligence is to remain focused on
fault and corrective justice. Court can examine impact of the mental disability on the standard of care, to
determine whether defendant had capacity or control. is the role of the legislature to provide for victims
injured by mentally disabled defendants who lacked capacity/control (i.e. via no-fault insurance schemes).

Mentally disabled defendants must prove, on a balance of probabilities:
   1) No Capacity: As a result of his mental illness, the defendant had no capacity to understand or
        appreciate the duty of care owed at the relevant time
   2) No Control: As a result of his mental illness, the defendant was unable to discharge his duty of
        care as he had no meaningful control over his actions at the time the relevant conduct fell below
        the objective standard of care.
                                                                                                            15

No Capacity/Volition: A negligent act "must be shown to have been the conscious act of the defendant's
volition". Otherwise, there is no liability (Slattery v. Haley, Sudden-Unconsciousness-causes-driver-to-
injure-kid, 1922). Likewise, the defendant in T.T.C. v. Smith Transport Ltd. (Remote Control Trucker's
Delusion, 1946) was acquitted on the grounds that he did not understand his duty nor was he able to
discharge it.

Mental Disability versus Heart Attacks: There is no distinction between Slattery and Fiala. Just as a
mentally disabled person escapes liability by not being conscious of their actions, a person who is
overcome by an unforeseen heart attack also escapes liability.

No Control: The driver in Roberts v. Ramsbottom (driver-has-previous-strokes-before-getting-into-
accident) was found liable for negligence as a reasonable person would have foreseen a probable risk to
others due to his pre-existing condition. Nothing less than total loss of consciousness will exclude
liability.

Doctors / Professional Negligence
Standard of Care for Doctors: Doctors are held to the standard of care applicable for a doctor of average
ability given her position in her particular specialty (Challand v. Bell, young-doctor-puts-cast-Leads-to-
amputation). Specialists are held to the "skill, knowledge and judgment…of the average person in the
special class of technicians to which he belongs". If the doctor's action was the result of exercising that
average standard, then no liability will be found (Wilson v. Swanson, skilled-surgeon-orders-wrong-lesion).
No exceptions are made for beginners (Challand v. Bell). Historically, urban and rural doctors have had
different standards of care (locality rule - reasonable doctor in "similar communities"), but this may be
changing due to increased communication technology.

Medical negligence is an unreasonable error in judgment: Doctors will not be found liable for
misadventure or mere errors in judgment - the doctor is not an insurer for a cure (Hassen v. Anvari).

Custom: When a doctor acts in accordance with a recognized and respectable practice of the profession,
s/he will not be found negligent unless the custom is grossly unreasonable. Dffers from the usual tort
approach to custom (not allowed as an excuse), since the courts do not have the medical expertise to
evaluate customs (ter Neuzen v. Korn, HIV+-artificial-insemination).

Duty of Disclosure: Historically, lack of informed consent was battery, but now falls under negligence.
Doctors have a duty to disclose the nature of the operation // material risks (chance & gravity) //
special or unusual risks (Reibl v. Hughes, surgery-causes-P-to-lose-pension). Court assumes that doctor
knows patient and will adequately inform patient of material risks specific to his situation. (Tremblay, tree-
feller-loses-arm). But doctors don't need to disclose material risks if it will cause the patient severe
emotional/physical distress, and patient is already severely fragile.
      Modified Objective Approach: Would a reasonable person with the plaintiff's reasonable
          desires/fears/beliefs/expectations have changed their mind if they had been fully informed of all
          the risks? (Reibl v. Hughes)

A Crisis in Medical Malpractice? Perhaps in the US, but not yet in Canada. Increased medical
malpractice suits can negatively impact doctors by raising their insurance premiums.

#3: Breach
Simple test: was the standard of care met? If not, there is a breach.

#4: Causation (Question of Fact)
The plaintiff must establish a causal connection between the tortfeasor's negligent action and their injuries.
Courts will employ a modern approach in determining causation which need not to be proven with
"scientific precision" (Wilsher).

Causation is an ON-OFF switch (yes causation / no causation): Cannot apportion causal responsibility.
Either the defendant(s) were causally responsible or they were not. Dividing up causation would allow the
                                                                                                             16

tortious defendant to escape full liability even though s/he materially caused or contributed to the plaintiff's
injuries. But you can apportion liability for damages.

Determining Causation: Materially Increased Risk vs Robust & Pragmatic Common Sense Approach
Materially Increased Risk Test: In McGee v. National Coal Board (Coal Dust Miner Disease, 1972), the
English courts temporarily held that the "materially increased risk" test would create a prima facie
negligence case and shift the onus to the defendant to disprove causation. This was overturned in Wilsher v.
Essex Area Health Authority (1988) where the court adopted a practical, common sense, robust and
pragmatic approach to proof of causation. The English then reversed their decision again with Fairchild v.
Glenhaven Funeral Services Ltd, 2002). Note that the current English approach is NOT followed in
Canada.

"Robust and Pragmatic" Common Sense Approach: In Canada, the SCC dismissed the McGee
"materially increased risk" test because it would have compensated plaintiffs even where they could not
establish a substantial connection between their injury and the defendant's conduct. The SCC adopted the
"robust and pragmatic" common sense approach of Wilsher. Causation need not be determined by
scientific precision.

"But For" Test: The general test
If the loss would not have occurred but for the conduct of the defendant, it is a cause of the loss.
      Imagine a world without the defendant's actions. Would the plaintiff still have been injured? If
          yes, then there is no causal connection (two-cigarette-smokers-by-the-house).

Tortious and non-tortious causes: You must use the "but for" test to determine whether the tortious actor
is causally responsible for the plaintiff's injuries (Athey v. Leonati, bad-backed-victim-has-2-car-accidents-
and-stretches).

Thin Skull Rule: The defendant "must take their plaintiff as they find them". Where the plaintiff has a
pre-existing condition, the thin skull rule applies. A defendant cannot deny responsibility for their
negligence simply because the plaintiff has a weak back/neck/whatever.
     Pre-Existing Condition Trumps? The defense can argue that the pre-existing condition would've
         caused the injuries all by itself without the defendant's tortious actions (Cottrelle v. Gerrard,
         amputated-leg-due-to-diabetes-not-negligent-doc).
     Thin skull rule (causation) relates to the crumbling skull rule (damages)

Material Contribution Test: multiple tortious actors
The "but for" test is unworkable where there are multiple tortious actors. Multiple tortfeasors occur
where each defendant's actions (on their own) materially & negligently injure the plaintiff.

Material Contribution Test: Does the tortious actor's conduct fall outside the de minimis range? (Walker
Estate v. York Finch General Hospital, CRCS-pamphlets-HIV+-donor.
       Focus on individual tortfeasor: Were the actions of each individual tortfeasor sufficient to
           cause the injuries on their own by contributing materially to the outcome? A contributing factor
           is material if it falls outside the de minimis range. (Bonnington Castings Ltd v. Wardlaw)

Example #1 of multiple tortious actors: 2 people, on opposite sides of the building, unaware of each other.
Each person negligently starts a fire on their side, causing the building to burn down.

Example #2: A plaintiff is injured by multiple pills, created and distributed by multiple manufacturers. All
manufacturers were negligent in manufacturing the drugs.

Loss of Chance
Loss of Chance: Non-compensable in medical malpractice suits (Laferiere v. Lawson, Doc's-failure-to-
inform-caused-loss-of-opportunity-to-seek-cancer-treatment). In Laferiere, the issue was whether the
failure to advise the plaintiff of the cancer had, on the balance of probabilities, caused her any injury. The
SCC did not allow the estate to recover damages for death, but did allow recovery of damages for
                                                                                                              17

psychological anguish and frustration related to defendant's failure to inform, as well as damages for a loss
in the quality of life due to failure to receive treatment.
        Actual Loss: Since the actual loss has already happened, the standard causation analysis applies.
        Loss of Chance applies only when the sole loss is a chance, rather than any actual benefit (i.e.
           losing a lottery ticket before the draw). In such cases, the evidence is purely statistical rather
           than in medical malpractice cases which are based on expert testimony on what benefit the
           plaintiff might have gained

#6: Remoteness (Question of Law)
Duty asks the question: Is this D obligated to take reasonable care for the protection of this P?

Remoteness asks the question: Having proven duty, breach and causation, how far should the defendant's
liability extend?

General Principle of Remoteness: The scope of liability for a tortfeasor who has breached his established
duty of care to the plaintiff by acting negligently.
     Duty of care & proof of negligence must be established before remoteness analysis allowed
              o If the defendant has no duty to the plaintiff, then there is no negligence
     Remoteness analyses usually occur where the defendant's original negligent actions were trivial,
         but the resulting consequences huge
     All the harmful results of negligent conduct cannot be laid at the feet of the actor who is factually
         responsible for these results.

Various Tests of Remoteness

There are many tests for remoteness, but in the end, it comes down to common sense, pragmatics and
policy. Canadian courts use a combination of WM1 and Hughes v. Lord Advocate (with a dash of WM2
thrown in for good measure when the defendant has failed to account for "real risks").

Canadian Principle of Negligence: As between a person without fault who has suffered a loss, and a
person with fault whose departure from the norm has caused certain damages, the person with the fault
should bear the loss - except where the fault is insignificant or the damage is so extensive that it is not
proportional with the fault.

Fault-based Compensation: Negligence law is meant to impose liability where there is fault, and not
merely to compensate. Is it just to impose liability on a defendant for bizarre damages which he could not
have reasonably foreseen (i.e. for which he may have no fault)? No-fault compensation - if any - should be
governed by insurance & the legislature, not the courts.

Historical Directness Test (Re Polemis, 1921)
Once an act is considered negligent, all that damage that flows directly from it is recoverable - because
damage of some kind would have been anticipated and avoided by the reasonable person.
     Damages need not be "intended", "natural and probable" or the type which one "might reasonably
        be expected to result".
     Defendant is not be liable for damages which are indirect consequences of new intervening causes
        which break the causal chain
     Overturned in Wagon Mound (No. 1) as "directness" was not clearly defined.

Reasonable Foreseeability (Probability) Test (Wagon Mound #1, 1961)
If defendant is negligent, he is only liable for the probable consequences which were reasonably
foreseeable.
      "Probable" not clearly defined.
      Pro-defendants (defendant only liable for consequences which were reasonably foreseeable).
      Note: WM1 arose when contributory negligence was still a complete defence - so defendant's
         contributory negligence (welding over oil-covered water) had to be hidden.
                                                                                                                18

Possibility of Injury Test (Wagon Mound #2, 1966).
If the defendant fails to take reasonable care (i.e. is negligent), he is responsible for all "possible" injuries
which result from his negligent act. A possible injury is any "real risk" which a reasonable person would
not have ignored.
      Much closer to Polemis directness test than WM1 reasonable foreseeability test.
      Pro-plaintiff (defendant is likely liable for all consequences, no matter how unforeseeable).

Type of Injury Test (Hughes v. Lord Advocate, 1963, Uncovered Manhole Burned Child)
If the defendant could reasonably foresee the type of damage, they are liable for all resulting consequences,
no matter how outlandish. The extent of the damage and manner of its occurrence are irrelevant. Pro-
plaintiff.
      Example: There was reasonable foreseeability of someone being burned by the paraffin lamp,
           therefore, the defendants in Hughes are liable for any resulting burn injuries - even if those burns
           occurred in a ridiculous explosion.

The Thin-Skull Problem and Remoteness

The thin skull rule is affirmed by the Hughes "type of injury" test which does not require reasonable
foreseeability of the plaintiff's specific injury, but only the type of injury. The tortfeasor must take his
victim as he finds him. So long as the tortfeasor could reasonably foresee a certain type of injury arising
from his negligence, he is responsible for all resulting consequences of that injury even if the consequences
are aggravated by the plaintiff's pre-existing condition. In Smith v. Leech Brain (burned lip becomes
cancer, 1962), it was reasonably foreseeable that the defendant's negligence would cause a burn, so the
defendant was responsible for all resulting consequences from that burn.

However, the courts will be specific about the type of injury: Where the type of injury was not reasonably
foreseeable, the courts will not impose liability for resulting consequences (Tremain v. Pike, plaintiff
contracts rare rat urine disease).

Novus Actus Interveniens: True Intervening Forces
A true novus actus involves questions of remoteness:
     Defendant's breach of duty has caused negligence which has injured the plaintiff
     Plaintiff's injury is exacerbated by a 3rd party, or by the plaintiff himself
     Defendant owes no duty to prevent subsequent injuries. But should he be liable for increased
         injuries which have occurred by virtue of his original wrongdoing?

2nd Accidents
General Rule: Defendant will be liable for all resulting injuries which are reasonably foreseeable (Wieland
v. Cyril Lord Carpets, injured collared plaintiff falls down stairs, 1969).
     Plaintiff injures herself further: Where the plaintiff's original type of injury was reasonably
          foreseeable, the defendant is liable for all resulting consequences, including any plaintiff-induced
          injuries (Wieland). But the courts will not compensate a plaintiff who acts unreasonably while
          injured (McKew, injured plaintiff jumps down stairs onto daughter, 1969)
     Plaintiff injured further by 3rd party: Defendant is liable for intervening forces which were
          within the reasonably foreseeable risk of harm set into motion by the defendant's negligence
          (Bradford v. Kanellos, Greasy Diner Idiotic Stampede, 1971). However, where the intervening
          force was not reasonably foreseeable, there will be no liability imposed on the defendant.

Duty on Rescuers: "Peril Invites Rescue"
General Rule: A defendant who has negligently created a situation of peril will be liable to injured
rescuers, if their rescue attempts were a reasonably foreseeable occurrence given the perilous situation.
       The situation of peril must have been brought about by the defendant's own negligence (Horsley
           v. MacLaren, MacLaren's-boat-driving-not-negligent, 1972)
       Rescue need not be successful in order to impose liability - even incompetent rescuers can sue
           for damages
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          Rescues which "aren't reckless or foolhardy" remain within the risk set into motion by the
           tortfeasor
          Professional Rescuers: The defence of voluntary assumption of risk does not apply to police &
           other professional rescuers on the job (Hambley v. Shepley). Tort litigation is not an appropriate
           economic response to inadequate compensation for injured public rescuers

Intervening Medical Errors
Traditional Rule: If subsequent medical treatment is negligent (i.e. not mere misadventure), then it is a
sufficient novus actus and severs the original tortfeasor's liability (Mercer v. Gray, 1941, OntCA)
      But if plaintiff used reasonable care to select a doctor and the doctor's non-negligent care further
         injured the plaintiff, the original tortfeasor is held liable for those subsequent injuries. Implies that
         doctor's non-negligent acts (and minor acts of malpractice) should be reasonably foreseeable.
      Outside Normal Experience: Original tortfeasor will not be liable if doctor's actions were
         "completely outside range of normal experience" (Kolesar, 1974, OntHC).
      Onus of Proof: Original tortfeasor must prove that the doctor was negligent on BOP
      Follows general reluctance to hold medical professionals liable for minor acts of malpractice. Is
         Mercer v. Gray out of touch with modern tort law and joint & several liability?
      Multiple Negligent Doctors: One negligent doctor can be held liable for the additional loss
         caused by a subsequent doctor's negligence, if it is reasonably foreseeable that additional
         negligence might arise from the first doctor's original negligence (Price v. Milawski, 2
         incompetent docs, 1977, OntCA).

Defences to the Negligence Action
Once the plaintiff has proven negligence on BOP, the defendant is fully liable for the plaintiff's injuries,
unless the defendant successfully proves one of 3 defences on BOP.

Contributory Negligence
Defence of Contributory Negligence: Unreasonable conduct on the part of the plaintiff which, along with
the defendant's negligence, has in law caused the plaintiff's own injuries.
      Victims owe a duty to themselves: Standard of care to be applied for plaintiff is the same as the
         standard owed by the defendant to the plaintiff
      Examine whether the plaintiff's negligence contributed to the injuries:
             1. By contributing to the accident itself
             2. By exposing the plaintiff to risk of involvement in the defendant's negligent actions
             3. By failing to take precautions to minimize possible injuries

Common law rule: Plaintiff's contributory negligence was a complete bar to recovery (Butterfield v.
Forrester, Violently Riding Plaintiff Trips Over Defendant's Pole, 1809. Note that contributory negligence
remains a complete defence in maritime law.

Last Chance Doctrine: Allowed a negligent victim to recover at common law if it was proven on BOP
that defendant might have prevented the injury by exercising reasonable care (Davies v. Mann, Bad
Donkey Killed by Defendant Wagon, 1842)
      As a test of causation: Was the plaintiff a proximate cause of the injury?
      As a test of comparative fault: Who was more at fault?

Negligence Act abolished the Last Chance doctrine & Common Law Rule. The Act governs all
apportionment of liability based on fault, even in the event of contributory negligence
     Allows victim to recover partially even when there is contributory negligence. As long as the
         defendant was "material cause" of the plaintiff's loss, the plaintiff can recover (North King Lodge
         v. Gowlland Towing, Ship Tied to Boom Sinks, 2004)
     Onus of Proof: Defendant must prove, on BOP, that (1) plaintiff was negligent and (2) the
         negligence caused/contributed to the injuries which were sustained. The injuries must relate to the
         injuries caused by the original tortfeasor.
     Last Clear Chance Doctrine Abolished: The act applies even if a party had the opportunity to
         avoid the injury and negligently failed to do so.
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        Obvious and Avoidable Risk: In BC, a plaintiff can be held completely liable for their
         contributory negligence where the plaintiff is aware of the risk, has the time to contemplate the
         risk, and decides to proceed anyway (Scurfield v. Cariboo Heli Skiing, Plaintiff killed in
         Avalanche, 1993.

Seatbelt Defence: There is a general duty on all vehicle occupants to wear seatbelts (Galaske v.
O'Donnell). The defendant's liability may be reduced if the plaintiff's failure to use his seatbelt was (1)
unreasonable and (2) a contributing cause to the plaintiff's injury. A successful seatbelt defence generally
reduces the plaintiff's damages by 25%.
    1) Failure to use seatbelt may or may not be unreasonable, depending on the facts/excuses
             a. There is a general duty on all occupants of a car to wear their seatbelt, but this duty may
                   be negated by the circumstances
    2) Failure to use seatbelt must be causal factor in plaintiff's injuries
    3) Proof that failure to use seatbelt breached a statutory requirement is not conclusive evidence of
         contributory negligence - but it helps
    4) Failure of parents or drivers to ensure that children are buckled up may be negligent,
         depending on circumstances
             a. Drivers always have a duty to ensure that passengers under 16 are wearing their seatbelts.
                   Duty may be shared by other passengers (i.e. parents), but the presence of others does not
                   negate the duty of the driver, since the duty is in control of the car (Galaske v. O'Donnell,
                   Child Injured While Not Wearing Seatbelt, 1994)

Denning on Seatbelts: "Everyone is free to wear it, or not, as he pleases…Free in the sense that everyone
is free to run his head against a brick wall, if he pleases…..If he does it [not wearing a seatbelt], it is his
own fault; and he has only himself to thank for the consequences."

Voluntary Assumption of Risk
Defence of Voluntary Assumption of Risk: Defence occurs when there is an agreement between 2 or
more parties that (1) they will participate in an activity which involves a risk of injury, and (2) will give up
their right to sue in the event that a risk occurs. Either explicit (via words) or implicit (via conduct)
agreement which must be entered into before the activity begins.
      Complete defence: If successfully, will exonerate defendant of all liability.
      Onus of Proof: Defendant must prove on BOP that plaintiff (1) voluntarily assumed the risk and
          (2) expressly/impliedly agreed to absolve the defendant from any liability for negligence
      Underlying Rationale
               o Negates the Duty: No duty to one who consents
               o Negates the Negligence: No negligence when one acts in a way contemplated by and
                    agreed to by the participants
      Narrow Defence: Drastically narrowed since the 1950s. Rarely successful today
      Explicit Consent: Contracts can give explicit consent (i.e. waivers, sports, etc)
               o Must be clear
               o Brought to the parties' attention
               o Adequate for the purpose for which they are intended
               o Agreed to by the party
      Implicit Consent: Can one infer from the conduct of both parties that the plaintiff had impliedly
          agreed to waive the defendant's legal responsibility for injuries resulting from the defendant's
          negligence?
               o Usually applied in "drunk driver/willing passenger" cases
               o Requires examination of bilateral situation: both parties!

Illegality
The defence of illegality can only be used where a plaintiff is seeking tort damages in order to (1) profit
from an illegal or wrongful act or (2) evade a criminal penalty. Since Hall v. Hebert (Defendant Allows
Plaintiff to Drive Drunk, 1993), it has not been used successfully as a defence to a personal injury claim. If
the defendant is found to be negligent (duty/breach/cause), it is no defence to claim that the plaintiff's
                                                                                                             21

actions were illegal unless the plaintiff was seeking to profit from an illegal act or was seeking to evade a
criminal penalty.

#6: Damages

General Principle of Damages: Return plaintiff to original position but for the defendant's negligence.
Damage assessment test was established in Andrews (CNR Employee Quad, 1978).
    Physical Damage: Historically, actual physical damage was required for negligence to be
        established, so as to limit liability.
    Pure Economic Loss: May be recoverable, depending on circumstance

Psychiatric Damage: Courts began allowing damages for negligent infliction of "nervous shock" after
Bourhill v. Young.
    o Test: Was there reasonable foreseeability of shock? Did the tortfeasor's negligent actions actually
        cause the shock? (Marshall v. Lionel, 1972).
             o Must be "recognizable psychiatric illness" suffered, not merely an emotional upset
                  (Duwyn v. Kaprielian, 1978).
             o Plaintiff must have been endangered themselves or have witnessed the accident or its
                  immediate aftermath with their own unaided senses.
             o Seeing the immediate aftermath is generally meant to require being at the scene of the
                  accident (Devji v. Burnaby (District), 1999).
             o Not clear whether seeing an accident on TV is sufficient (Alcock v. Chief Constable of
                  South Yorkshire Police, 1991)
             o Class of plaintiff can include close relatives, loved ones, rescuers (Bechard v.
                  Haliburton Estate, 1991) or fellow colleagues of the injured persons
             o Mere bystanders are less likely to be able to recover.
             o "Reasonable robustness and fortitude" is expected of Canadians (Vanek v. Great
                  Atlantic & Pacific Co. of Canada, 1999)
             o Until recently, suffering psychiatric damage on being told about an accident was
                  insufficient to quality for damages, unless that person was also injured in the accident
             o May be able to claim compensation for negligent communication of bad news (Lew v.
                  Mount Saint Joseph Hospital Society, 1997)
             o False information negligently communicated & causing psychiatric damages is
                  compensable (Jinks v. Cardwell, 1987)
    o Australia: Plaintiffs can recover where there is foreseeability of psychiatric damage, unless policy
        reasons compel a different conclusion (Tame v. New South Wales). This might permit damages
        for someone hearing about a terrible accident.
    o England: Courts distinguish between primary victims and secondary victims. A primary victim
        is a person who actually suffered physical harm in the accident. A secondary victim is a mere
        bystander.

Assessing Damages for Multiple Defendants:
     One or the Other, or Both: Where both parties are to blame, but you cannot determine which one
        is more to blame, you can assess blame equally between the parties (Leaman v. Rea, two-cars-
        crash). This is different from Fontaine where negligence was unclear - in Leaman, there is
        plenty of negligence, but you don't know who caused it.
     One or the Other, but NOT Both: Where only one party is to blame, but you cannot decide
        which one, you cannot assess blame on both parties (because that would mean holding an innocent
        party liable for blame). The action must be dismissed (Wotta v. Haliburton Oil Well Cementing
        Co. Ltd., Trucks-Bump-Rears-but-only-one-is-negligent, 1955).

Joint and Several Liability: Liability can be apportioned between multiple tortfeasors via joint and
several liability (Negligence Act). This allows the plaintiff to seek full compensation from one party, or
separately.
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Crumbling Skull Rule: If plaintiff had a pre-existing condition, the court will not return them to a "better
position" than their original position. Thin skull rule & crumbling skull rule are two sides of the same coin
(causation versus damages).

Lump-Sum Payments: At common law, damages were awarded in a lump-sum payment, to run out on the
day of their death [excepting income contributions to the plaintiff's estate]. Parties may also agree to
periodic payments outside of court. Lump sum payments will be reduced by a Capitalization Rate (2.5%)
to account for potential returns on investments

Pecuniary Losses: Damages for quantifiable losses (i.e. medical expenses, income, etc)
     Special Damages: Damages which arise b/t accident and the determination of award at trial
     General Damages: Damages awarded for losses after trial
           o Loss of Earning Capacity: Based on an examination of the plaintiff's current ambition,
                educational background and current career path: what is the "average" position that the
                plaintiff will achieve? Loss of potential wages is calculated according to the plaintiff's
                normal pre-accident life expectancy.
                     1. Minorities Get Screwed Again: Plaintiff's gender & race will be factored in to
                          determine current earning capacity for a person of the same gender/race/etc
                          (McCabe v. Westlock, Girl Plaintiff Gets Less $$, 2001).
           o Cost of Future Care: Damages should put plaintiff back in their original situation absent
                the defendant's negligence. Plaintiff need not mitigate their cost of future care - if
                independent care is reasonable given the past situation of the plaintiff, the court will
                award that. Cost of future care is determined by plaintiff's life expectancy, given the
                injuries sustained by the accident. The cost of future care award may be reduced slightly
                if the earning capacity award is quite high (because a non-injured individual would have
                spent part of their income on their cost of healthcare).

Non-Pecuniary Losses: Damages for non-quantifiable losses (i.e. pain & suffering)
    Functional Approach: Court examines plaintiff's situation and determines a monetary amount
       which will compensate the plaintiff for "the need to make life more endurable". Capped at
       $100,000 in 1978 (currently $275,000 due to inflation)
    The court discarded the conceptual (objective) approach [a table equating injuries w/ monetary
       amounts] and the subjective approach [ask the plaintiff].

Contingencies: Contingencies can be both positive and negative (Andrews), and can include an adjustment
for changes in the cost of future care. Courts will be expected to show how they determined the
contingency amount, rather than simply pulling a number out of the air.

Taxes: Awards will be increased to account for future reductions of awards/investments caused by taxes
(Watkins v. Olafson, 1989)

Rich Lawyers: BC personal injury lawyers allowed max 30% contingency for motor vehicle accidents;
40% for non-motor-vehicle accidents. Contingency fee taken out of plaintiff's award.

Punitive Damages: May also be awarded, to punish defendants for outrageous, antisocial or illegal
behaviour (Whitens v. Pilot Insurance Co, evil-insurance-company)
     Used frequently in intentional torts, but also available under contract, nuisance & negligence
     Rationale: punishment, retribution, denunciation & deterrence
     Awards should be "rational", and be of the "lowest amount" necessary to forward the objectives of
        punitive damages.
     Proportionality Test for determining whether the award is proportionate to:
            o Blameworthiness of the defendant's conduct.
            o Degree of plaintiff's vulnerability
            o Actual harm or potential for harm suffered by the plaintiff
            o Need for deterrence
            o Other civil and criminal penalties given for the same misconduct
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             o    Advantages wrongfully gained by a defendant from the misconduct

Intentional Torts


Accidental, Negligent & Intentional Conduct
The continuum of accidental>negligent>intentional conduct can be distinguished by differences in
knowledge, foreseeability of consequences and means which ought to have been taken to avoid them.

Accidental Conduct: Where a defendant acts & produces consequences which were either not reasonably
foreseeable or not reasonably preventable (strict liability)

Negligent Conduct: Where the defendant ought to have reasonably foreseen and avoided the result, but
failed to do so (negligence)

Intentional Conduct: Where a defendant acts either knowing with substantial certainty what the
consequences of the act will be, or desiring those consequences. No reasonable foreseeability of injury is
required (intentional torts)
     Focus on Physical Consequences: Defendant must know (intend) that certain consequences will
         occur, but need not intend harm (Garratt v. Dailey, kid-pulls-out-chair, 1955)
     Mistake of law or fact is no defence to intentional torts
     Example: A man who walks onto another's land is liable for trespass if the man understands that
         his walking action would lead to the entering of some land [the man does not need to know, or
         intend, to enter another's land].
              o However, generally, most defendants who commit intentional torts know that their
                   conduct will detrimentally affect the victim and want to injure the victim - but knowledge
                   of and intention to harm is not required!

Volition and Capacity
Moral Blameworthiness: Intentional torts sets out to punish defendants for voluntary acts, therefore,
volition (control) and capacity are essential to tort law. Liability in tort law is based on the requirement
that the act which caused the plaintiff's injury was the defendant's act.

Volition: Whether you had control over your actions. Where the defendant is conscious of his act, and able
to control it, there is adequate volition (Gilbert v. Stone, man-forced-to-steal-horse, 1648). Where the
defendant has no control over his actions, he has no volition and cannot be held liable in tort (Smith v.
Stone, man-carried-onto-land, 1647).

Capacity: Whether the defendant appreciated the physical consequences of his act ("nature and quality").
Defendant need not appreciate the moral consequences, nor need he understand that the act is wrong. As
long as the defendant understands the physical consequences of his act, there is adequate capacity. Where
the defendant does not understand the physical consequences of his act, he cannot be held liable in tort
(Tillander v. Gosselin, child-drags-baby, 1967). Mental incapacity may render a defendant incapable of
appreciating physical consequences of his act (Lawson v. Wellesley Hospital, crazy-patient-attacks).

Assault
Tort of Assault: Protects one's right to be free from the threat of imminent physical harm.
     Objective Test: Did the defendant's conduct raise a reasonable apprehension of imminent
        offensive or harmful contact?
     Rarely raised in Canada since damages are often low

Actual contact is not required for assault, nor must the threat actually be carried out (Stephens v. Myers,
Man-Rushes-Chairman, 1830). It does not matter if the defendant did not have the actual ability to cause
harm. Because it is an objective test, the plaintiff need not have been in fear himself.
                                                                                                            24

Threatening words may constitute an assault if they raise a reasonable apprehension of imminent harm.
Look at the words to determine whether a reasonable person would apprehend imminent harm (Tuberville v.
Savage, assize-time, 1699; Police v. Greaves, come-one-step-closer, 1964).

Threatening acts may also constitute assault, if they raise a reasonable apprehension of imminent harm
(Bruce v. Dyer, lane-blocking-is-assault, 1970).

Transferred "Intent": If X aims for Y, but actually grazes Z, X is liable for assault of Z because he has
raised a reasonable apprehension of imminent harm.

Battery
Tort of Battery: Protects one's right to be free from offensive physical contact. The legal wrong is the act
of violating an individual's bodily security.
      Objective Test: Would a reasonable person find this contact to be offensive?
              o Question of Fact: Conduct which is generally accepted by society is not battery.
      Burden of Proof: Plaintiff must prove that defendant contacted them in an offensive manner.
          Defendant must then disprove intention by showing that they did not intend the physical
          consequences of their actions.

In order to be liable for battery, the defendant must be aware that their actions will cause the plaintiff to be
physically contacted in an offensive manner (this is intention). The defendant need not reasonably foresee
nor intend to cause harm (Bettel v. Yim, angry-store-owner-grabs-kid, 1978). The offensive conduct must
emanate directly from the defendant's conduct. The contact must be physical, but need not be person-to-
person. It can be committed either intentionally or negligently (Goshen v. Larin, escaping-ref, 1974). In
an action for negligent battery, the onus falls on the plaintiff to prove that the battery was committed by the
defendant. The onus then switches to the defendant to prove that his act was both unintentional and
without negligence.

Offensive  Harmful: The contact need not be physically harmful, nor need to cause any personal injury.
For example, medical treatment which is not consented to can be battery.

Sexual Wrongdoing
Sexual Wrongdoing: Offensive behaviour that encompass torts of assault, battery, intentional infliction of
mental suffering and breach of duty. Litigation usually revolves around limitation periods, damage
assessments and vicarious liability issues.
     Advantages of civil suits for sexual wrongdoing: Plaintiff gets to control the proceedings // less
        onerous burden // damages
     Disadvantages: Costly, timeconsuming, stressful

Sexual Battery: Sex is harmful or offensive if it is non-consensual. Sexual battery occurs where defendant
intended to engage in sexual activity which a reasonable person would have perceived to be non-consensual
(Non-Marine Underwriters, 2002, SCC). Defence of consent is vitiated by inequality coupled with
exploitation (Norberg v. Wynrib, Meds For Sex, 1992).

Discoverability Rule: Limitation Periods for sexual battery based on incest run from the date when the
victim discovers the connection between the harm suffered and the childhood history (rebuttable
presumption that this arises in therapy) (M.(K.) v. M.(H.), Past Incest, 1992). Certain provinces have either
eliminated or redefined the limitation period for sexual assault.

Tort of Sexual Wrongdoing: It's hard to prove sexual wrongdoing under separate intentional torts. For
example, a female employee who faces daily verbal harassment or sees offensive photos on a daily basis at
work may not have a reasonable apprehension of immediate contact (assault) or ever be inflicted with harm
(battery).

Tort of Sexual Harassment: Unwanted behaviour of a sexual nature by one party against another
especially where it affects work performance, undermines dignity or endangers continued employment
                                                                                                            25

(Lajoie v. Kelly, Harassed-Waitress, 1997). Complicating issues include systemic secrecy, reasonable
belief of consent and the modified objective standard. No BC courts have followed Lajoie v. Kelly, nor has
the SCC considered the tort of sexual harassment. Victims of sexual harassment can go to the Human
Rights Board, Employment Standards Branch, or their professional standards board [Seneca College held
that there was no tort of sexual discrimination because such victims had the Human Rights system to go
through].

Vicarious Liability for Sexual Wrongdoing: Institutions can be directly or vicariously responsible for
sexual abuse committed by their agents, as in the case of Churches (K. (W.) v. Pornbacher, 1997) and
group homes (Bazley v. Curry, 1997).

Intentional Infliction of Mental Suffering: In Samms v. Eccles (1961, Utah), the plaintiff claimed
damages from the defendant for injuries which she allegedly suffered as a result of his persistent indecent
proposals. The court accepted her claim as being an intentional infliction of emotional distress even though
the plaintiff did not incur an actual physical injury.

Intentional Infliction of Mental Suffering
An act or statement calculated to produce harm (Wilkinson v. Downton, prankster-husband, 1897)
    1) An act or statement
              a. Statement need not be false to be actionable // No publication required // Speech must be
                  extreme
              b. Acts can be broad and may include sexual harassment (Samms v. Eccles)
    2) Calculated to produce harm
              a. Defendant must have desired to produce mental suffering or known that such suffering
                  was substantially certain to occur. Defendant need not have foreseen full extent of injury.
              b. Reaction of the victim must be "normal"
    3) Harm: Mental suffering must result in a definite physical manifestation or recognizable
         psychopathological harm (Frame v. Smith).

False Imprisonment
Occurs when a person is imprisoned without lawful justification. Protects one's right to go where one has a
lawful right to be. The legal wrong is the restriction of the plaintiff's liberty. Used most frequently against
police officers, store owners and mental institutions.
     o Objective test: Would a reasonable person feel compelled to stay?
     o Burden of Proof: Plaintiff must prove imprisonment. Defendant must then prove that
         imprisonment was justified.
     o Actionable w/o proof of damage
     o Damages: awarded for loss of liberty and damage to reputation. Damages may be mitigated by
         certain facts (Campbell v. SS Kresge Co, plaintiff-compelled-to-avoid-embarassing-scene).
     o Tort of False Arrest: When a person is placed under arrest without justification.

Test for False Imprisonment:
    1) Imprisonment: Imprisonment occurs when the plaintiff is prevented from going where he has a
         lawful right to go. There is no imprisonment if there is a reasonable alternative route (Bird v.
         Jones, regatta-blocks-man, 1845). Imprisonment can occur by actual physical force, threat of
         force or psychological coercion (Chaytor, spying-employees, 1961). The presence of alternative
         escape routes is a defence only if such routes were reasonable.
    2) Directness: False imprisonment must occur as a direct result of the defendant's conduct.
         Difficulties are raised where defendant only detained plaintiff on another's orders.
    3) Knowledge: Plaintiff need not be aware that they are being confined

Malicious Prosecution
Used by a person who have been wrongly persecuted. Rarely successful. 4-part test (Nelles v. Ontario,
Nurse Falsely Charged with Quad-Kid-Murder, 1989)
    1) Proceedings must have been directly initiated by the defendant
    2) Proceedings must have terminated in favour of the plaintiff
                                                                                                           26

             a.   It's how the proceedings ended, and not why - even if plaintiff gets off on technicality, he
                  meets this requirement
     3) Plaintiff must show that the proceedings were instituted without reasonable cause
              a. Defendant must not have had an honest or actual belief in the accused's guilt, nor
                  reasonable and probable grounds upon which to base his belief
     4) Defendant must have been motivated by malice
              a. Defendant must have some motive other than the pursuit of justice
Abuse of Process
Where a person uses the process of the court for an improper purpose and where there is a definite act or
threat, extraneous to the court action itself, in furtherance of that purpose.
      Test: Proof of overt conduct (an act of threat) & purpose other than pursuit of justice
      Not actionable without proof of damage
      Plaintiff does not need to show that proceedings ended favourably, or that defendant lacked
          reasonable or probable grounds for initiating court process

Invasion of Privacy
No clear tort of invasion of privacy - the right to privacy is generally protected under other torts. Most
courts hold that invasion of privacy should be dealt with under public and private nuisance (Ontario (AG) v.
Dieleman, 1994). However, one Ontario court established a tort of invasion of privacy, as long as certain
elements were met (Roth v. Roth, warring-cottagers, 1991):
     Intrusion must be substantial and of a kind that a reasonable person of normal sensitivity would
         regard as offensive and intolerable.
     Whether the invasion of privacy of an individual will be actionable will depend on the
         circumstances of the particular case and the conflicting rights involved.

No Tort of Privacy in UK: UK deals with these actions under nuisance, since the plaintiff’s enjoyment of
their property is being interfered with.

Statutory Tort of Invasion of Privacy: The Privacy Act establishes a tort of invasion of privacy which is
negated by certain defences.
    o Section 1(1): It is a tort, actionable without proof of damage, for a person, wilfully and without a
        claim of right, to violate the privacy of another.
    o Section 1(2): The nature and degree of privacy to which a person is entitled in a situation or in
        relation to a matter is that which is reasonable in the circumstances, giving due regard to the
        lawful interests of others.

Tort of “Appropriation of One’s Personality”
First recognized in Krouse v. Chrysler Canada Ltd. (1974) OntCA. Also codified in the statute (Privacy
Act, s.3, unauthorized-use-of-name-or-portrait-of-another).

Sales versus Subject Distinction: Actionable only if the celebrity's image or persona is being used for
commercial exploitation (Gould Estate v. Stoddart Publishing Co. (1996) Ont.Gen.Div, Glenn-Gould-
Sues).

Tort of Inducing Breach of Contract
Motive is irrelevant in the tort of inducing breach of contract, so long as the defendant knows (or ought to
know) that their actions would lead to breach of contract. There is a 4-part test for this tort (Verchere v.
Greenpeace, Hippies Make Loggers Mad, 2004):
    1) There was a valid and enforceable contract
    2) The tortfeasor knew of the existence of the contract
    3) The tortfeasor caused the breach of contract
    4) There was a breach of the contract which was wrongful and damages resulted.

Defenses to Intentional Torts
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The person who alleges must prove: Once the plaintiff has established that the defendant has interfered
with their interests, the defendant must prove the defence in order to escape liability. Defences may prove
(1) no wrong (i.e. consent), (2) an excuse (i.e. self-defence) or (3) justification (i.e. provocation).

Consent
Defence of Consent: Where defendant argues that the plaintiff consented to the actual interference.
    o Not Voluntary Assumption of Risk: In VAR, plaintiff only agrees to accept the risk of
        interference, not the actual interference
     Objective Test: Whether the plaintiff made any "overt acts" or displayed the "manifestation of
        their feelings" to lead the defendant to reasonably assume that they had given consent (O'Brien v.
        Cunard, Doctor Vaccinates Without Consent, 1891).
     Consent must be free, full and informed. Plaintiff w/o capacity cannot give consent.
     Consent need not be in any specific form (can be express/implied, oral/written)
     Silence/Compliance  Consent

Vitiating Consent: Consent obtained under duress is invalid. Consent obtained under fraud/mistake may
be invalid depending on the nature of the fraud. Consent may be rendered ineffective by the exploitation of
a relationship of unequal power (Norberg v. Wynrib, sex for drugs).
          1) Proof of inequality between parties: ordinarily occurs w/in context of special "power
              dependency" relationship
          2) Proof of exploitation of that inequality: based on factors such as type of relationship &
              community standards of conduct

Consent in the Sporting Context: Participants who engage in physical contact sports consent to the
ordinary risks of physical contact and unintentional, non-malicious injuries (Wright v. McLean, mud-ball-
fight) including those which result from "frequent infractions of the rules" (Matheson v. Dalhousie,
borden-ball-rules). Mutual fighters cannot complain unless the force is excessive or unnecessary.

Consent in the Medical Context: Battery is a valid cause of action where there is no consent at all to a
treatment, or where the treatment is misrepresented.
     o No Informed Consent: Use negligence as cause of action (Reibl).
     o Contact need not be harmful: As long as the contact is out of the ordinary, it does not matter
        whether the treatment is beneficial.
     o Legal Effect of Consent: Doctors must seek consent before performing treatment (Malette).
        Withdrawal of consent requires termination of treatment. Doctor has no duty to treat or resuscitate
        a patient unless a court order is imposed.
     o Emergencies: If the patient has not expressly or impliedly consented or refused treatment, a
        doctor can administer treatment even if the patient is unable to give consent at the time of the
        emergency. This is based on the presumption that the patient, as a reasonable person, would want
        emergency aid. Treatment must be lifesaving, necessary and not just convenient (Marshall v.
        Curry, Emergency Testicle Removal). However, if a person has expressly or impliedly refused
        treatment in an emergency situation, that refusal must be respected. Consent can be withheld in
        advance of an emergency. A doctor is not free to disregard a patient’s advance instructions any
        more than he would be free to disregard instructions given at the time of the emergency (Malette v.
        Shulman, Jehovah's Witness).
     o Withhold Treatment? Presumption must be in favour of life. It is not within the perogative of
        any parent or of this court to look down upon a disadvantaged person and judge the quality of that
        person’s life to be so low as not to be deserving of continuance (Re Supt. Of Fam. & Child
        Service and Dawson, parents-try-to-withhold-treatment).

Self-Defence
Self-Defence: The right to sue force to protect oneself from an actual/threatened attack.
     o Defendant must prove that (1) there was a situation of immediate actual/threatened harm which
        necessitated the use of force and (2) the amount of force used was immediate and proportionate to
        the threat (Cockcroft v. Smith, biting-finger, 1705).
     o Complete Defence: Completely exonerates the defendant of liability.
                                                                                                             28

    o    Don't Wait: Defendant need not wait for the first blow in order to defend himself.
    o    Fact-Driven: The less threatening the plaintiff's conduct and the easier it is for a defendant to
         avoid harm, the smaller the amount of tolerable force. Not measured with "complete nicety"

Provocation
Defence of Provocation: Conduct has occurred which causes the defendant to lose his power of self-
control and which occurs at the time of, or shortly before, the tortious act of the defendant.
     Immediacy Not Required: Lacks the same immediacy of self-defence
     Usually insulting words or conduct short of an assault requiring immediate self-defence
     Mitigation of Damages: Will not exonerate the defendant completely

Necessity
Defence of Necessity: A situation of great and imminent danger to life or property has arisen which can be
averted by the defendant sacrificing the plaintiff's lesser interest (or the interests of the defendant, a 3rd
party or the public).
    o Objective Test: Defendant must have taken reasonably necessary steps to avert the threatened
          harm. Defendant's act must be deemed tortious, and all other defences discarded before necessity
          will be considered. Rarely raised.
    o Limited Defence: Will not help the hungry or the homeless (Southwark London Borough,
          homeless-squatters, 1971; R. v. Dudley, cannibalistic shipwreck survivors, 1884).

Common Law Rule: In times of imminent peril - such as when fire threatened a whole community - the
sovereign could, with immunity, destroy the property of a few that the property of many and the lives of
many more could be saved (US v. Caltex).

Necessity in Canada: Public welfare outweighs private interests. Canadian defence of necessity excuses a
defendant from liability where they have no other choice than to commit a tort in the course of acting in the
public interest (Dwyer v. Staunton, driving-through-snowy-fields, 1947).

Necessity in US: Private property interests win out over public welfare: to invoke the defence of necessity,
you must show that there was an "unavoidable accident" (Vincent v. Lake Erie Transport, ship-damages-
wharf, 1910)

Legal Authority
Defence of Legal Authority: Legislative authority exists which entitles the defendant to engage in conduct
which would otherwise be tortious and actionable. Usually arises against assault, battery or false
imprisonment. Broadest & most frequently raised defence.

To claim the defence of legal authority, you must prove that:
    (1) you had legislative authority to exercise those powers
    (2) you exercised those powers reasonably (Bahler v. Marwest Hotel, Trader Vic Patron falsely
        imprisoned for not paying for wine, 1969).

For example, Criminal Code, s.25 gives general authorization for using reasonable force to arrest when
authorized to by legal authority.
    a. Police Officers can arrest if plaintiff is doing something for which they may be arrested. Police
         can only use force if they believe on reasonable grounds that force is necessary for officer or
         citizen safety (protection from imminent/future death or grievous bodily harm)
    b. Private Citizens (s.494): Any one may arrest without warrant a person whom he finds committing
         an indictable offence; or who you reasonably believe has committed an offence.

Strict Liability
Strict Liability: Imposed for injuries caused by non-negligent conduct (even if reasonable care was taken
to prevent injury). Usually included in an action for nuisance & negligence.
      Onus of Proof: Plaintiff must simply prove that defendant has caused their damages. Defendant
         must prove defences in order to escape liability.
                                                                                                              29

        Damages: Claims in both property damage and personal injury allowed

Escape of a Dangerous Substance being used for a Non-Natural Purpose
A defendant is strictly liable if he brings on his land a non-natural use which is likely to cause mischief if it
escapes (Rylands, D's reservoir causes P's mine to flood, 1868).
    1) Non-Natural Purpose: Any use which is hazardous, unusual or special in the sense that it is not
         one ordinarily conducted on land. Does not include ordinary or socially useful activities, no
         matter how dangerous (Rickards v. Lothian, exploding toilet, 1913; Tock, sewer-system-floods-
         basement, 1989). But strict liability may be used to shift cost of dangerous activities onto those
         who profit from them
    2) Escape: Object must actually escape from a place which the defendant has occupation of, or
         control over, to a place which is outside his control (otherwise, occupier's liability) (Read,
         exploding shells in factory, 1947). No intention to release is required.
    3) Anything Likely to Do Mischief: Only uses which are both unusual and dangerous will qualify

Defences to Strict Liability

Consent of the Plaintiff
Plaintiff consented to the presence of the non-natural use and agreed to assume the physical and legal risks
of escape. Express consent is easy to determine. Implied consent is determined by whether the plaintiff
benefited from the presence of the object (i.e. did plaintiff get water from exploding pipes?).

Default of the Plaintiff
If plaintiff contributed to the escape of the dangerous use, they can be held contributorily negligent and
have their damages reduced. However, if the defendant could have reasonably foreseen and guarded
against the plaintiff's negligent or intentional act, the defence will fail.

Act of God
A natural and extraordinary event which could not have been reasonably foreseen by the defendant, even as
a possibility, and thus could not have been guarded against, will excuse the defendant from strict liability.
Rarely successful.
     Foreseeability Test: No human foresight can provide against and of which human prudence is not
         bound to recognize the possibility.
     Onus of Proof: Defendant must show that occurrence was not reasonably foreseeable.

Deliberate Act of Third Person
If the escape was caused by deliberate or intentional act of 3rd party, defendant will be excused from
liability. However, if defendant reasonably foresees and could have prevented the 3rd party's conduct,
strict liability will still be imposed (Hale v. Jennings Brother, chair-o-plane goes wild, 1938).

Legislative Authority
Activities conducted pursuant to statutory authority are not subject to strict liability, unless the defendant
was negligent. Onus is on the defendant to show the (1) existence of legislative authority, and (2) that the
activity was conducted with reasonable care.
     1) Statute cannot cancel cause of action: Court will not assume that the statute cancels out a
         plaintiff's right to sue, unless there is clear and unambiguous language
     2) Express Authorization: Statutory activity in question must have been expressly authorized or
         necessarily incidental to the execution of the authorized activities
     3) Reasonable Care: Statute only authorizes the careful execution of its activities
     4) Damage must be unavoidable: Defendant must also show that the damage was unavoidable

Product Liability
Product Liability in Canada: Plaintiffs can sue manufacturers for product defects only under negligence
(Donoghue v. Stephenson, paisley-snail-ginger-beer).
                                                                                                           30

Product Liability in US: Plaintiffs can sue manufacturers in strict liability for dangerous defects,
regardless of their involvement or lack of negligence. (Greenman v. Yuba Power Products Inc. (1963)
California SC). The power imbalance between manufacturers and consumers is one reason for imposing
product liability. If strict liability is imposed, then manufacturers may take more care in creating their
products.

Intermediate Inspection
Where a product is used by the consumer without there having been the possibility of intermediate
inspection, the manufacturer is liable for any defects (Smith v. Inglis, 3 Prong Fridge, 1978)
     Contributory Negligence: Where the consumer's own negligent conduct worsened their injuries,
         contributory negligence applies. In extreme cases, the consumer's negligence will constitute a
         novus actus and sever the causal chain, thus imposing no liability on the original manufacturer.
     Intermediate Inspection is Reasonably Anticipated: If the manufacturer reasonably anticipates
         that the product will be inspected & adapted by an intermediary before it is used by the consumer,
         the manufacturer will not be liable for any injuries suffered by the final consumer (Viridian)
     Multiple Defendants: Where negligent intermediate inspection has occurred, the situation will be
         considered as one involving multiple negligent defendants (Ives, Gas Furnace Negligently
         Installed & Maintained, 1975)

Duty to Warn
Even if due care was used in the making of a product, a manufacturer still has a duty to warn its users of the
appropriate uses or the risks associated with the use (Buchan v. Ortho; Birth Control Pills). The
manufacturer knows or ought to know the dangers associated with its product.
     All Users: Duty is owed to all users who may be reasonably affected by potentially dangerous
         products - even if the users were not privy to the contract of sale
     Duty extends to (1) dangers inherent in ordinary intended uses & (2) risks which flow from
         foreseeable (not necessarily unintended) uses
     Proportionality: Adequacy of warning must be proportional to the gravity of risk of danger
     No duty to warn of obvious and apparent risks
     Continuing Duty to Warn: Duty can be triggered by information which is known after the
         product is put into use
     Clear Warning: Warning must be clear and understandable as to nature/extent of risks. Warning
         must be reasonably communicated and must clearly describe any specific dangers that arise from
         the ordinary use of the product (Hollis, Breast Implants Rupture, 1995)
     Sneaky Customers: A defendant who is aware that a non-negligent warning will be disregarded
         by the final consumer may still be partially liable for the plaintiff's injuries (Good-Wear Treaders,
         Seller of Dangerous Tires, 1979)

Warnings and the Learned Intermediary
Where the product must be purchased from a learned intermediary, an adequate warning given to the
intermediary from the manufacturer will satisfy the manufacturer's duty to the ultimate consumer.
      Highly Technical: Applies where the product is "highly technical" (i.e. prescription drugs), only
        to be used under supervision of experts, or where the consumer will not realistically receive a
        direct warning from the manufacturer before use
             o Learned Intermediary Rule doesn't apply to OCs: Unlike other prescription drugs,
                 there is duty to warn women directly of the risks involved in the use of prescription oral
                 contraceptives (Buchan).
      Clear, Complete and Current Warning: The learned intermediary should be a "complete and
        perfect proxy" for the manufacturer (Hollis)
      Disclosure to the intermediary = disclosure to the plaintiff: No defence for the manufacturer to
        claim that they adequately warned the intermediary, but that the intermediary did not then pass on
        the warning to the plaintiff
      Causation (Subjective Test): Plaintiff must prove that he would not have used the product, on
        BOP, had the warning been disclosed adequately to the learned intermediary
             o Lower threshold than modified objective test for duty to disclose for doctors (Reibl).
                                                                                                         31


Vicarious Liability
Liability is vicarious when it is based not on any personal wrongdoing by that individual, but on the
tortious conduct of someone else. There must be a relationship between the defendant and the tortfeasor.
Parties can be sued for both direct liability and vicarious liability simultaneously.
     o VL is strict liability: Because the defendant can be held vicariously liable without any evidence
          of personal wrongdoing.
     o History: Emerged in the 1990s as a new application of strict liability.

Multiple VL Defendants: 2 or more parties may be held vicariously liable, so long as they are in a
common enterprise. The party with more control will be "more at fault" and will have a larger penalty
imposed (Blackwater v. Plint, United Church & Canada held VL for rez school sex assault, 2005)

Charities & Non-Profits can be exposed to vicarious liability too, as nature of employer is irrelevant.
Non-delegable duties require clear and unambiguous statutory language to exist (Blackwater v. Plint; John
Doe, Newfoundland Priest Abuses Power, 2004).

Policy: To provide just & fair compensation to victims of wrongdoing, and to deter future harms. VL may
be imposed where liability is "fair and useful" (KLB v. BC, Foster Parent Abuse, 2003)
     Deterrence: Is there really deterrence in a strict liability regime?

VL generally raised in employer-employee relationships: Employer is held vicariously liable to 3rd
parties for torts committed by their employees in the course of their conduct (question of fact):
     1) There exists an employee-employer relationship between the tortfeasor and the person sought to
          be held vicariously liable.
     2) The employee's tort must have been committed "in the course of employment".

1) Who is an Employee?
   a. Control Test (Sagaz, Canadian Tire Independent Contractor): An individual will be considered
      an employee when the employer not only tells that person what to do, but how to do it. Employer
      must provide opportunity for employee to abuse power (Jacobi v. Griffiths, Club Director Abuses
      Kids, 1999). Look at whether the person who has been engaged to perform the services is
      performing them as a person in business on his own account (Sagaz). Factors which determine
      control:
           o Did the worker provide his/her own equipment?
           o Did the worker hire his or her own helpers?
           o The degree of financial risk taken by the worker
           o Degree of responsibility for investment/management held by the worker
           o Worker's opportunity for profit in the performance of this or her tasks
   b. Employers like independent contractors: Employers cannot be held vicariously liable for
      independent contractors, over whom they have little control

2) Course of Employment: unauthorized modes of committing unauthorized acts
    Vicarious liability attaches to the torts of employees which were not authorized by their employers,
      and for whom the employers cannot be held personally responsible, if these torts were committed
      within the course of the employee's employment.
    Policy: Employers should be held vicariously liable where the wrongdoing fell within the ambit of
      the risk created or exacerbated by an employee - where the wrong is so connected with the
      employment that it can be said that the employer introduced the risk of harm (Bazley)

Bazley/Curry Test (Children Foundation kids abused, 1999)
    1) Is there precedent (principles) which unambiguously determines whether vicarious liability
        should be imposed in this case?
    2) If there is no precedent, would it serve policy concerns to impose vicarious liability?
            a. Is there a "strong connection" or "nexus" between the enterprise and the employee's
                 torts? Did the enterprise "materially enhance" the risk rather than provide the "mere
                 opportunity" for the employee to commit the tort?
                                                                                                           32

                       1.   Opportunity that enterprise afforded the employee to commit the tort
                       2.   Extent to which the wrongful act furthered employer's aims
                       3.   Extent to which the wrongful act was related to friction, confrontation or
                            intimacy inherent in the enterprise
                       4.   Extent of power conferred upon employee by the job
                       5.   Vulnerability of victims to wrongful exercise of that power

Principles, rather than Facts: Precedents can be used as guides to pull out principles, rather than as a
method of applying caselaw on the facts. Majority ruling appears to place emphasis on precedent, rather
than policy. Bazley factors are used to determine principles from past precedent (EB v. Oblates, No VL for
Rez School Baker abuse, 2005).

Residential Schools and Sexual Abuse: The only tort that plaintiffs can litigate for in relation to
residential schools is sexual abuse, because of the lack of limitation periods [unless you go under equity
and argue breach of fiduciary duty]. Plaintiffs cannot litigate cultural genocide, mental suffering, physical
abuse, loss of future earnings, etc, even if those harms were more serious than the sexual abuse.

Nuisance
Give and take, live and let live: Tort of nuisance balances competing property-holder interests.
     Strict Liability: Defendant is liable if plaintiff proves unreasonable interference with the use of
        their property interest.
     Remedies: Generally, injunctions are granted unless the damage to the plaintiff was small, easily
        compensable by money and where an injunction would be oppressive to the defendant.

Public Nuisance
Public Nuisance: Any activity which unreasonably interferes with the public's interest in questions of
health, safety, morality, comfort or convenience (Ryan v. Victoria, Motorcycle Stuck in Old Tracks, 1999).
Most public nuisance cases today deal with the interference of transportation (i.e. roadways, waterways).
     o "Public" (question of fact): A nuisance so widespread that it wouldn't be reasonable to expect one
          person to initiate proceedings to stop it.
     o "Nuisance": When proprietary interest of mankind has been interfered with. The more harmful
          and less useful an activity, the more likely it will constitute a public nuisance.
          1) Trouble caused by activity
          2) Ease or difficulty required to lessen or avoid risk
          3) General practice of others
          4) Utility of activity
          5) Character of neighbourhood

Private Actions for Public Nuisance: Generally, an action for public nuisance must be initiated by a
public body (provincial AG). Private actions for public nuisance may only be brought when the plaintiff
establishes special or particular damages (Hickey, Placentia Bay pollution, 1970).
    o Directness: This must be an injury which was particular, direct and substantial; over and above
         the injury suffered by the general public (particular  more). The plaintiff's injuries must be
         directly caused by the defendant's actions (Burgess, Polluted Bay Hurts Fishermen &
         Businessmen, 1973).
    o Simultaneous Actions: An activity can constitute both a public and private nuisance at the same
         time - simultaneous actions are allowed (Sutherland). Plaintiffs suing under public nuisance are
         not required to hold their own property interest.

Private Nuisance
Tort of Private Nuisance: Any activity which results in an unreasonable and substantial interference with
the right of use and enjoyment of land (Pugliese). The tort of nuisance protects interest in land from
indirect and continuing interferences emanating from neighbouring lands. The nuisance must be caused by
some thing or conduct traceable to the defendant. One-time events do not generally constitute nuisance.
Nuisance is generally continuous behaviour (Pugliese). The type of injury must be a reasonable
foreseeability of the defendant's activity.
                                                                                                          33


Plaintiff must have interest in land: Civil actions for private nuisance are restricted to those with an
interest in land. Children of homeowners cannot be included in an action for private nuisance (Sutherland,
YVR runway).

Objective Test: Is the defendant using his property reasonably, having regard to the fact that he has a
neighbour? (Pugliese) Would the ordinary and reasonable resident of the locality in question view the
disturbance as a substantial interference with the enjoyment of land (Tock, Obstructed Sewer Floods
Basement, 1989)?
      Reasonableness in nuisance  standard of care: Reasonableness in nuisance turns on what an
         ordinary resident would put up with in the locality in question.

Doesn't Matter Who Came First (Miller v. Jackson, Cricket Balls In Backyard, 1977): Whether the man
went to the nuisance or the nuisance came to the man, the rights are the same (Russell). It is no defence for
the defendant to show that the plaintiff brought the nuisance upon himself by moving to the locality in
question. Progress demands change - people will always move.

Determining Factors in "Substantial Interference"
 a. Severity of harm: Physical damage is always unreasonable & a substantial interference. Less
     tangible interferences (i.e. noise/air pollution) must pass objective test.
 b. Reasonableness of use to which property is being put by defendant
      i. Test: Whether it is reasonable for the defendant to use the property in the disturbing manner,
          given that they have neighbours (not reasonableness as in standard of care)
     ii. Sometimes socially useful activities will constitute a nuisance so as not to place the entire
          financial burden on a single plaintiff.
 c. Character of locality
      i. Would an ordinary resident in the neighbourhood in question complain about this particular
          disturbance as being substantially different from everyday disturbances? Where a particular
          trade is carried on by the local traders in an established manner not constituting public nuisance,
          the same trade will not be actionable as a private nuisance (Russell, Foundry Damages Cars,
          1952)
 d. Special sensitivities of the plaintiff, or the enterprise which he wants to protect: But an
     interference with something of "abnormal" sensitivity or delicacy does not, on its own, constitute a
     nuisance unless the reasonable person would consider it an interference (Nor-Video, small town TV,
     1978).

Defences to Nuisance
    1) Contributory negligence
    2) Consent
    3) Acts of normal husbandry: Minor nuisances which arise from the ordinary use and occupation of
        residential property (i.e. burning weeds) are not actionable, if performed reasonably and not to an
        excessive degree (Pugliese)
    4) Defence of Statutory Immunity

Defence of Statutory Immunity
If the legislature expressly or implicitly states that a work can be carried out which can only be done by
causing a nuisance, then that legislation has authorized an infringement of private rights. Where the action
complained of is the inevitable consequence of what the statutory scheme has authorized, Parliament must
be taken, by implication, to have authorized the nuisance as well (Sutherland, YVR Runway Causes Noise
Pollution, 2002).
     o Narrow, but complete defence: Exonerates defendant of all liability
     o Onus on Defendant to establish (1) unambiguous statutory authority and (2) inevitable
          consequence

Traditional test for defence of statutory authority: (cited by Sopinka in Tock; aff'd in Ryan)
                                                                                                        34

    1) Does the legislation expressly or implicitly authorize the defendant's actions? Is the
       authorization permissive or mandatory?
           a. Reasonable Inference: If the legislation does not explicitly authorize the defendant's
                actions, the courts will determine whether the statute is such that the only reasonable
                inference is that this activity was authorized.
           b. Statutory Purpose is Irrelevant: Just look at the legal effect of the statute.
    2) The actions complained of must be the inevitable consequence of the legislative authorization in
       question.
           a. Once the authorization is established, the defendant must then prove that there are no
                alternative methods of carrying out the work. An inevitable consequence occurs when
                the necessary causal connection exists between the work authorized and the nuisance
                complained of. It is no defence to claim that the chosen method was less expensive, or
                that the defendant used all reasonable care.

Wilson J.'s modified defence of statutory authority (discarded by Ryan)
    1) If authorization is mandatory, action complained of must be the inevitable consequence of the
        legislative authorization.
    2) If authorization is permissive, the defendant need only show "inevitable consequence" if the
        statute in question was detailed in terms of how and where the action should be done.
             a. Where permission authorization is not detailed, the defendant must only "avoid creating a
                  nuisance".

Defamation
The law of defamation seeks to protect the reputation of individuals against unfounded and unjustified
attacks, but must be balanced with the need to protect freedom of speech. Consistent with Charter
protection of individual dignity and self-worth.
    o Strict Liability: If plaintiff proves 3 elements, defendant is liable unless valid defence
    o Damages: Compensatory and punitive damages
    o Sources: Common law, Libel and Slander Act

Libel or Slander? (Historical Distinction)
Slander: Defamation by the spoken word (transitory)
     Actionable only upon proof of special damage - actual losses must result from slander
     Exception: 4 classes of slanderous statements are actionable w/o proof of special damages
             1) Imputation of the commission of a crime
             2) Imputation of a loathsome disease
             3) Imputation of unchastity to a woman
             4) Imputation of unfitness to practice one's trade or profession

Libel: Defamation by the written word
     Actionable without proof of damages since general damage are presumed
     Actions for libel are more prevalent in defamation law today.
     Many CL jurisdictions have passed provincial defamation statutes which abolish distinction, but
        not the BC Libel and Slander Act
              Broadcast: Defamatory words in a broadcast are published and constitute libel.
              Mitigation: In an action for libel in a newspaper or other periodical publication, the
                 defendant may plead in mitigation of damages that the libel was inserted in the
                 newspaper without actual malice and without gross negligence, and where the defendant
                 publishes an apology (modifies Vizetelly)

3 Elements of Defamation

(1) Material was Defamatory
Objective Test: Words tending to lower the plaintiff in the estimation of right-thinking members of society
generally (Murphy v. Lamarsh, Press Gallery Tell-All Book, 1971)
     Question of law: Whether the material would have lowered the plaintiff's rep
                                                                                                             35

        Very low threshold: Virtually all critical comment which portrays person in an uncomplimentary
         light is considered defamatory
        Actual Effect Irrelevant: The effect on the actual listener/reader is unimportant. If objective test
         is met, material is still considered defamatory even if the plaintiff's reputation is unaffected by the
         material
        Presumption of Falsity: Law presumes that defamatory material is false, unless truth is pleaded
         as a defence
        Intention/Knowledge is Irrelevant: Defendant need not have any intention to defame, nor does
         he need to know that the material is defamatory

(2) Material Refers to the Plaintiff
The defamation must have been "published of and concerning the plaintiff".
     Question of Law: Is the material capable of being regarded as referring to the plaintiff?
     Question of Fact: Would a reasonable person know that material was referring to the P?
     Intention not relevant: It is irrelevant whether the defendant intended to refer to this particular
        plaintiff, so long as a reasonable person would think that the material referred to the plaintiff
        (Hulton v. Jones, Another Artemus Jones, 1910).
     Defamation  Negligence: No defence for defendant to say that he took all reasonable care to
        avoid defaming plaintiff, or that he had never heard of plaintiff.

(3) Material must be published
The defamatory material must actually have been published - i.e. communicated to at least one person
who is not the person defamed. Private communications don't generally constitute defamation as there is
no widespread damage to the plaintiff's reputation.
     Awareness: In order to be published, the person receiving the material must have been aware of it
        and understood it.
     Accident  Defamation: Accidental publication of defamatory material will not lead to liability,
        but the burden of disproving fault rests with the defendant who must rebut common sense
        presumption that ppl intend natural consequences of their acts by showing on BOP that (1) he did
        not intend that anyone other than the P should hear him, (2) did not know or have reason to expect
        that anyone else might be within hearing distance, and (3) he displayed all reasonable care in not
        foreseeing the probability of someone being within hearing range (McNichol v. Grandy,
        Eavesdropping Employee, 1931).
     Dissemination of Knowledge Doctrine: If parties who played a subordinate role in disseminating
        defamatory material can show that they did not and could not have reasonably known of the
        libellous material when they disseminated the material, they will not be considered to have
        published it (Vizetelly, Library Unknowingly Circulates Libel, 1900). Slightly modified by BC's
        Libel and Slander Act as defendant need now only show that they published without actual malice
        and without gross negligence

Defences to Defamation

Charter
Both defamation law and the Charter are meant to protect individual dignity & self-worth. But the Charter
does not apply to defamation law, as it is inapplicable to all common law litigation between private parties,
even if one of the parties suing happens to be a government employee (Hill v. Church of Scientology,
Scientologists Defame Crown Counsel, 1995)
    o Charter as Guide: Private litigants can argue that the common law of defamation is inconsistent
         with Charter values, although under this principle, courts should only use the Charter as a guide
         and should not make far-reaching changes to the common law
    o Onus of Proof: Party alleging that common law is inconsistent with the Charter must prove (1)
         that the common law fails to comply with Charter values and (2) that a balancing of the values
         requires a modification of the common law.

Truth
Truth is a complete defence to defamation
                                                                                                          36

    o    Burden of Proof: Defendant must establish that the statement is true, on BOP

Consent
Consent is a complete defence to defamation.
    Always Get Consent: Consent must be given for each publication separately.
    Pop Stars: Presumption that famous entertainers consent to self-referring media statements

Absolute Privilege
Absolute Privilege is a complete defence to defamation
     A successful defence of absolute privilege will exonerate the defendant of all liability - even if
         the material was false/malicious and the plaintiff has proven all 3 elements
     Examples of AP: Parliamentary proceedings // judicial proceedings and reports of judicial
         proceedings // acts of the high executive in their official capacity // statements made by
         committees in the House of Commons // statements made between spouses.

Qualified Privilege
Qualified Privilege exists for publications "fairly made by a person in the discharge of some public or
private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is
concerned" (Toogood v. Spring, 1834).
    o Protects defamatory material published on certain occasions.
    o Occasion, not Communication: Attaches to the occasion upon which the communication is made,
         and not the communication itself.
    o Notion of Reciprocity: The publisher who publishes and the person who receives the defamatory
         material must have a legal/moral duty to publish/receive it.
    o 4-Part Test: Whether a person of ordinary intelligence and moral principles would have
         considered there to have been a duty (do 4 categories exist?). Whether defendant honestly
         believes that duty existed in irrelevant.
         1) Protection of one's interest
         2) Common interest or mutual concern
         3) Moral or legal duty to protect another's interest
         4) Public interest
    o Onus of Proof: Defendant must show that the occasion was one of qualified privilege. Onus then
         shifts to the plaintiff to defeat the defence by proving malice.
    o QP defence fails if (1) defendant exceeded the purpose for which the QP was created or (2) the
         defendant was malicious
         o Exceeds the Purpose: Defendant loses QP if he uses words which were not relevant to the
              occasion, or communicated material to those who were not entitled to receive it (Pleau,
              Plaintiff's Photo Posted as Cheque Forger, 1976)
         o No Malice: (1) ill will, (2) ulterior motive other than the protection of one's own interests, or
              (3) lack of honest belief in impugned material (whether reasonable or not)

1) Protection of one's interest
Statements which are fairly made by a person in the conduct of his own affairs in matters where his own
interest is concerned are prima facie privileged, so long as they are not made in malice, ill will or with an
ulterior motive (Sun Life Assurance, Sun Life Crushes Mutinous Insurance Agents, 1965). QP can protect
both economic and personal interests.

2) Common interest or mutual concern
A communication is protected by QP if it is made in furtherance of a common or mutual interest shared by
the publisher and recipient of the communication (Bereman, Union Paper Defames Scabs, 1933)
      Must be reciprocity of interests between the parties
      Legal, moral or social interest or duty to communicate
      Publication must be made in good faith, and made to members of a common group

3) Moral or legal duty to protect another's interest
                                                                                                             37

Qualified privilege applies where an individual has, by his situation, a reasonable legal or moral duty to
protect the interests of another (Watt v. Longsdon, Don't Tell Your Friend's Wife of Infidelity, 1930)
     Information given to a person with respect to the character, competence or credit-worthiness
          of the plaintiff can qualify for a privilege on the basis that there is a duty on the part of the
          publisher to protect the interests of the recipient of that information
     Reciprocity: Those who receive the communication (if not actually the person being protected)
          must have some interest or duty in receiving the information

4) Public interest
Qualified privilege attaches where there is a duty or interest on a publisher to convey information to the
public, which has a reciprocal duty or interest in receiving it.

A newspaper has the same right as any other person to report truthfully and comment fairly upon matters of
public interest, but has no special duty to do so. No right of qualified privilege attaches to communications
made about a candidate during an election campaign (Globe and Mail v. Boland, Tory Candidate Defamed
as Anti-Communist, 1960). This lack of special protection for the media is gradually being whittled down.

Fair Comment
Defence of fair comment allows people to comment on matters of public interest, even if their comments
are defamatory of other people. "Fair comment" is not necessarily the same as fairness under the law of
negligence. Fairness includes both honesty and relevancy, and must not be malicious: it cannot be pure
criticism (McQuire, Theatre Critic Trashes Play, 1903).

Media generally protected under fair comment: Hence the lack of movement towards QP for the media.
Libel and Slander Act also protects fair comment, and letters to the editor (Cherneskey v. Armadale
Publishers Ltd, Newspaper Sued for USask Students's Letter to Editor, 1979).

Fair comment arises in two categories: (1) public affairs in which the public has a legitimate interests and
(2) works of art displayed in public. Certain elements are required:
     1) Comment must be on a matter of public interest
     2) Comment must be based on fact
     3) Comment, though it can include inferences of fact, must be recognizable as comment
     4) Objective Test: Could any man honestly express that opinion on the proved facts?
     5) Malice: Defence can be defeated by proof of express malice.

								
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