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(1) DUTY OF CARE:
Court to determine whether claim governed by precedent. If so duty of care will be established if P’s injury was
reasonably foreseeable. No need to engage in full duty analysis Childs - [para. 15]
gen’l universal test: If harm is foreseeable (no duty if not foreseeable – Palsgraf) then there’s a presumptive duty
of care unless “some reason for holding otherwise” Home Office. End of Crown Immunity (FORESIGHT NOT
HINDSIGHT)
a duty of care can incl’ pure economic losses: Headley Byrne
there’s no tort of stat breach: Saskatchewan Wheat Pool; but a breach of a statute may be a factor in
determining whether there was a duty of care: eg. Stermer v. Lawson
a PLF cannot ground their claim in a duty the DEF owes to someone else: Palsgraf; Bourhill v. Young
The Re-formulated Anns/Kamloops Test
Onus of proof : P to prove prima facie duty. D to convince court of overriding policy considerations to negate,
exclude or limit duty [Childs].
Stage One: Prima Facie Duty of Care – “Reasonable Foreseeability of Harm Plus Something More”
Plaintiff to establish:
Reasonable foreseeability of harm to class of plfs (not necessarily the actual plf) (Palsgraf), and
Proximity – A relationship of such a nature that the DEF may be said to be under an obligation to be mindful of
the PLF’s legitimate interests in conducting his/her affairs: Hercules
- policy considerations focused on relationship b/n parties eg. whether it would be just and fair to impose a
duty upon the DEF, considering reas’ expectations, reliance, representations, ppty and other interests – The
relationship categories are NOT closed (Cooper)
Proximity will be established where parties are in a close and direct relationship to make it fair,
reasonable and just to impose a duty of care in the circumstances. Cooper.
Proximity: Incremental approach based on analogy: Cooper – (pro: certainty/predictability/simplified duty analysis.
Cons: anti-expansionist/harder for plf to est dofc/potential conflating stages 1 and 2 policy considerations)
Stage Two: Residual Policy Consideration: big picture policy factors will be considered: think “what would be the
effect of this potential duty on other legal obligations, the legal system and society gen’ly?”.
Notwithstanding the prima facie duty of care, are there residual policy considerations to justify denying or
otherwise restricting liability?
Misfeasance or Nonfeasnace?
What would be the effect of duty on other legal obligations, the legal system and society generally?
Factors to be considered include:
Whether the law already provides a remedy for the interest in question?
Indeterminacy concerns (# of potential PLF’s etc)
Where the D is a public authority or quasi-judicial body, whether the loss in question resulted from a policy or
operational decision
Broad policy reasons to make imposition of duty undesirable (burden on taxpayer/second guessing gov’t)
Statue duty? How does it affect the duty? Est direct causal link (odhavji) or negate it (Cooper)
Desirability of certain activities to be immune from tort law
Childs v. Desormeaux (SCC, 2006)
What is clear is that at stage one, foreseeability and factors going to the relationship between the parties must be
considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is
whether this duty is negated by other, broader policy considerations. [Childs, para. 12]
Refinements/Clarifications
Reasonable foreseeability may sometimes be sufficient to ground proximity but not always, even in cases
involving physical harm – [para. 12].
Depends on whether injury arose from active misconduct (misfeasance) or failure to act (nonfeasance)
Foreseeability of injury may be sufficient to ground a prima facie duty of care in misfeasance – but in cases of
nonfeasance, foreseeability of the injury alone may not suffice for a prima facie duty of care. In addition,
proximity b/n the parties may be required [para. 31].
Court identified 3 situations in which proximity has previously been recognized to impose a positive duty on
defendants to act – Uniting factors = DEF Controls danger + PLF relies on DEF
(1) D intentionally attracts and invites third parties to an inherent and obvious risk that D created or
controls [para. 35];
(2) D in paternalistic relationships of supervision and control with P. e.g. parent-child or teacher-student
[para. 36]; and
(3) D exercises a public function or engages in a commercial enterprise that includes implied
responsibilities to the public at large [para. 37].
MISFEASANCE/NONFEASANCE
General Rule: Cts will impose liability for injury caused by misfeasance, but not nonfeasance.
Negligence is focused on stopping people from putting people in danger by creating danger – Neg does not force
people to rescue people from harm not created by themselves. Obligations to act found in morality – not law (Horsely)
POLICY: Unwillingnes to compel altruism/Respect for Autonomy/Practicality
There is no general duty to rescue from harm that you didn’t cause.
Relationships where court has found element that makes them more than uninterested strangers, therefore positive duty
to act
Relationships of economic benefit
D invites 3rd parties to inherent & obviously risky situation that they have control over (creation of dangerous
situations)
Paternalistic relationship (of supervision/control)
Reliance relationships
Where D exercises a public function or engages in commercial enterprise
Statutory duties
DUTIES OF COMMERCIAL HOSTS: (misfeasance/nonfeasance)
eg. bar owes its patron a duty to take acts to rescue and assist Jordon House v. Menow: special rela’ship of invitor-
invitee and commercial host, knew Menow drunk that night, could have avoided the injury easily at low cost, therefore
had duty to assist – knowledge and ease of avoidance – HUGE here - affirmed in Crocker & Sundance (drunk guy
enters ski comp’, for econ benefit of host) (Econ benefit + liability clause = restive reading of the clause) (Crocker)
Commercial Hosts also have a duty to 3rd parties injured by drunken patrons: Schmidt & Sharpe: Here passenger of
Drunk driver’s car - It was reasonably foreseeable consequence that passenger would be injured – BUT Passenger
might be held contributory negligent, but it depends on whether they are capable of telling that driver was drunk (i.e.
a child wouldn’t be held liable)
Commercial alcohol vendors have a duty to all those that can be expected to use the highway: Stewart v. Pettie (but in
this case hotel not liable b/c 2 drunks left w. their sober wives, so std of care not breached)
DUTIES OF SOCIAL HOSTS: (misfeasance/nonfeasance)
Childs - SCC: This analysis = A new Duty analysis
Social Hosts, not analogous to Commercial Hosts: Comm Hosts better position to monitor consumption, they have
skills to do so, and there are expectations that exist in the commercial setting that don’t exist in the social setting
C. hosts are regulated and the Contractual nature between commercial host and patron is different from social host
and guest – ie Benefits of over consumption don’t flow to social host the way they would to commercial host
Here injury wasn’t reasonably foreseeable – Social host didn’t know or ought to know that injury could happen and
can’t infer reasonable foreseeability based on past instances of drinking and driving
Even if Reasonable foreseeability – No proximity – the difference between Misfeasance and Nonfeasance – only
three occasions where Ct’s inferred a positive duty to act (invites somebody into risky situation, paternalistic
relationship, public function/commercial function that includes an implied responsibility)
No evidence of reliance either—no evidence that guests relied on hosts to monitor intake of alcohol or monitor and
deter guests from driving
BUT - A host who continues to serve alcohol to an inebriated person, knowing he/she will be driving home, has
enhanced the risk of the situation (leaves door open for future cases where they could more effectively set out standard
of care and duty) - McL places high value on individual responsibility— don’t check their responsibility at the door
Other Social Host cases:
Baumeister v. Drake - Social Host not liable b/c not in control of alcohol/drugs or even party (‘rents were out of town
– no knowledge/control)
Wince v. Ball - Driver hit Pedestrian, who sued the sober driver, drunk driver and hosts. Ct: Social hosts had some
responsibility for preventing intoxicated guests from leaving, but not here b/c no supply of booze. However, the
crt has implied that social hosts might be liable if they have knowledge and actually provide alc/drugs to party-goers -
Hosts were not liable b/c left w/ sober driver, not foreseeable that he would switch cars
DUTIES RAISED IN THE CREATION OF DANGEROUS SITUATIONS: (misfeasance/nonfeasance)
General Rule: No Liability for failure to Act - But diff in the accidental creation of danger
Oke v. Weide - C of A says not liable because harm was not foreseeable - To be held liable, harm must be
foreseeable when you create a dangerous situation - Def. was in position of nonfeasance (Dissent: DEF was
different than the innocent motorist – would have called it misfeasance and held him liable – for failing to clean it up
and failing to alert the authorities – Commentators say dissent is probably right)
Stermer v. Lawson - 16-year-old Def. lent his motorcycle to 17-year-old Plf. TRIAL: 16 y old was held liable for
failing to instruct PLF on how to use it. Owner of Motor vehicle has a duty not to let someone drive their vehicle:
Ought to have know that Def didn’t have sufficient knowledge and experience - Statute is taken into consideration but
does not in itself create a duty - Apportioned liability 50/50 - On Appeal, reduced to 90/10 p/d – knew or ought to
know that def didn’t have the skills
Hempler v. Todd - D was owner of car and both P & D were drunk. No one knew who was driving. P was killed and
D was injured - Who was driving? Court says not important. P & D were 50/50 liable - Todd’s car (D): So he still owed
a duty not to place P in the dangerous situation, even if Hempler (P) was driving - Obligation not to let him drive drunk
Borsoski - P was an inexperienced 17 y old failed DL test a few times and was drunk driving (D knew this) - P took
D’s car without permission and drive it into ditch - P & D pulled car out of ditch with D’s truck - D tells P to get into
car and follow him - P is injured at an intersection - Court says: Negligent and foolhardy for D to tell P to get behind
wheel and drive - D had duty not to put P into dangerous situation - P found to be 20% liable
Hall v. Hebert - P & D drunk and driving - Car stalled and decided to start with rolling start (D pushed and P drove)
Got in accident and P injured - P sues for D permitting him to drive while impaired
DUTIES BASED ON UNDERTAKINGS AND RELIANCE – created by DEF (misfeasance/nonfeasance)
DEF has undertaken to assist/rescue – once done this – what is the extent of their liability?
If you tell someone that you will do something of legal benefit – you have a legal obligation to do it – if the promise
created reas’ reliance – but the Law distinguishes undertakings between private actors and government (see
IMMUNITIES)
Private Actor
Zelenko (1938) – Plf, falls ill in a store and taken to infirmary. They left her there for six hours and she died. - Store
found liable. They undertook to help her, AND no one else could help her as a result.
Mercer - D had installed safety devices, weren’t under obligation to have installed them, but since they had, public had
come to rely on them. Thus, they couldn’t be uninstalled without notifying public - Created a reliance relationship
Nord-Deutsche - As above, public relying on safety measures - Didin’t maintain lights, creating dangerous situation
Barnett v. Chelsea + Kensington Hospital – arsenic tea - Hospital opened its doors to let him in for treatment so they
had an obligation. - Case is important because it shows that even if you put yourself in danger, someone begins to
help – they can be liable -Plf is entitled to rely on the hospital - Distinguished from a previous case in which hospital
emergency department closed its door, and no duty is created.
Good Samaritan Act – C. law continues to recognize no duty to assist someone - GSA is designed to encourage
people to assist be reducing standard of care required of them if the try to assist someone in need of help -Want to
protect volunteer medical practitioners and laypeople who try to help - Distinguishes negligence from gross negligence
- Like intentional negligence - There was a concern that people were discouraged from helping others by potential
penalties - This gen’ly lower std. does apply to off duty medical professionals, but a determination of gross negli’ is
diff’ for such professionals.
STATUTORY DUTIES (misfeasance/nonfeasance)
o Some statutes create a duty to assist (e.g. MVact says you must assist when involved in accident) but this
doesn’t necessarily create a C.law duty
No tort for breaching a statute in Canada – (Sask Wheat pool)
nonfeasance becomes misfeasance in the case of public servants subject to statutory duties and legal oblig’s
stemming from the C.Law to act: eg. police have both stat duties and C. Law duties: O’Rourke v. Schacht
O’Rourke v. Schacht – Statutory duties in police act, also common law duties. Overall – Normal person – no conduct =
nonfeasance, but Positive duty here b/c of their office, both statutory and C.Law duties. Police could’ve easily dealt
with hazard, until ministry could get around to putting the signs back up. Thus both duties breached.
So, a statutory duty by itself does not create common law duty, but it can be used to create a C. law duty
DUTIES RELATED TO RELATIONSHIPS OF SUPERVISION / CONTROL: (misfeasance/nonfeasance)
the hallmark of relationships of control or supervision which positive action req’d - these rela’s are entered into
willingly - most obvious rela’ of control giving rise to duties is that btwn parent and child. Often, even if a child does
not wish to sue a parent can for insurance. Also, a third party involved in an accident with a child is entitled to bring the
negli’ parents into the action and seek contribution: Teno v. Arnold
Galaske v. O’Donnell -Father, driver, and eight year old son. Accident, son was badly injured. Driver said he didn’t
insist kid wear a seatbelt b/c he didn’t want to interfere with his friend’s child (father was in the car). They were both
found liable, 50-50. Father and child were in a relationship of care and supervision, but so was the driver with the child.
Driver is always responsible to take reasonable steps to provide for safety of their passengers. Driver who takes
children into their car has to take some responsibility for them. That duty is not negated by the presence of a parent.
other common rela’s of control/supervision incld. teacher and pupil, employer and employee, carrier and passenger,
prisons and inmates, hospital and patients. In all of these rela’s the freedom of action of the subservient party is
limited by the dominant party
Horsley v MacLaren Captain/passenger – duty b/c of authority and control – also implied assumption of concern for
passenger and reliance by passengers on Captain’s expertise.
if a person by his fault creates a sit’ of peril, he must answer for it to any person who attempts to rescue the person who
is in danger. If the rescuer is killed or injured in the attempt, he can recover dam’s from the one whose fault has been
the cause of it: Horsley v. McLaren duty must stem from the fact that a new sit’ of peril was created by
MacLaren’s neg which induced Horsley to act
So – Horsley = (1) Duty between Captain and all man overboard; (2) Captain liable to a rescuer where the
captains negligence created the need for a rescuer.
DUTIES RELATED TO ASSISTANCE AND RESCUE (misfeasance/nonfeasance)
gen’l rule of nonfeasance: no one has a duty to provide a benefit to another: Horsley v. McLaren. Exceptions to the Gen
Rule against no duty for positive action:
• boat operators have a duty to rescue. They are not, however, liable for shoddy attempts to rescue, even if they
haven’t followed std. regulatory boating procedures: Horsley v. McLaren (here the DEF benefited from the
emergency circumstances defence – the law won’t hold somebody to the same std. of reas’ness in emergency
sit’s that they do in nonemerg sit’s)
• if you start to help, you may be held liable if you don’t complete the assistance negligence free: Black v. New
York (railway under no duty at first, but undertook to remove PLF, therefore had to finish it w.out negli’)
• several relationship are now recog’d as giving rise to a duty to assist, eg. rela’ships of supervison and control,
rela’ships of reliance, rela’ships involving economic benefit
Foreseeability of injury may be sufficient to ground a prima facie duty of care in misfeasance, in cases of non-
feasance, foreseeability of the injury alone may not suffice for a prima facie duty of care. In addition, proximity
b/n the parties may be required. Childs
DUTIES RELATED TO PSYCHIATRIC INJURY:
gen rule psyc injury is characterized as a special kind of injury, similar to pure economic loss – NOT recoverable
the crts are reluctant to impose liability for psyc injury (aka. “nervous shock”): Bourhill v. Young.
Why?
difficulties of proof (misdiagnoses, misattribution of PLF’s condition to the DEF’s conduct). To address this
concern, crts have limited awards only to PLFs w. med’ly recog’d illnesses.
Also req’ that there must be some “scar on the mind”, ie. something very severe: Rhodes
floodgates, poss’ly huge number of potential PLFs
troubles w. proving causation
foreseeability concerns: it seems more difficult for DEFs to determine who might be adversely affected
psychologically, whereas it’s apparently easier to reas’ly foresee physical injuries
to assist in determining reas’ foreseeability, crts have created a distinction btwn primary and secondary victims
• primary victims are those who suffer physical and/or psychological injury that the DEF had a duty to protect
them against
• secondary victims are other in close rela’ships w/ the primary victims who might suffer psychiatric injury as a
result of injury to the primary victim (eg. close relatives, rescuers, certain types of bystanders)
to impose a duty of care for secondary victims:
• it must be reasonably foreseeable that the DEF’s negli’ would harm a secondary victim of reasonable fortitude
• secondary victims can only make a claim after primary victim has already been successful in a negli’ claim
against the DEF;
however a DofC to the primary victim does not mean there’s a duty of care toward the secondary victim. The
secondary victim must est’ an independent, nonparasitic duty (foreseeable harm + proximate relationship. Duty to
protect against psychiatric injury)
crts favour damage awards for primary victims b/c they’re injuries were suffered as a direct result of the DEF’s conduct
– therefore psyc injury w/i the realm of foreseeable injury; whereas secondary victims harm is an indirect result of the
DEF’s conduct
secondary victims cannot recover for “ordinary”/”normal” grief and sorrow caused by death/pain of loved one (the
primary victim), there must be something shocking and alarming (scar on the mind) about the circ’s surrounding the
primary victim’s injuries/death: Rhodes v. CNR (mother trying to get to son involved in a train accident)
for the secondary victim to est’ that the DEF owed them a DofC to protect against psychiatric injury, they must est’
foreseeability of psyc injury, that the event was horrifying/caused nervous shock and 3 types of proximity :
1) relational proximity – proximity in the rela’ship twn the primary and secondary victim
2) locational proximity – was at or close to the scene of the accident or its aftermath. Normally this req’s exact
physical proximity, but exception for close relatives attending the hospital where the primary victims were taken:
McLaughlin v. O’Brian. Watching media reports of the event does not qualify b/c there’s no locational proximity
(need to be “within sight or sound of the accident”), but crt left open the poss’lity of recovery if secondary victim
actually sees the primary victim in the media coverage: Alcock v. Chief Constable of South Yorkshire. No locational
proximity in Vanek (contaminated orange juice), therefore no recovery for parents
3) temporal (Causal) proximity – proximity in time btwn the event where primary victim injured and the secondary
victim’s resulting injuries. Watching even live media footage does not qualify, but crt left open the poss’lity of
compensation if they actually saw the primary victim in the media report: Alcock v. Chief Constable of South
Yorkshire. eg. case where no recovery b/c too temporally remote = Beecham v. Hughes (husband slowly watching
wife degenerate over yrs after accident caused by DEF’s negligence suffers depression. Crt refuses to compensate him
– depression the result of wife – not the accident itself). No temporal proximity in Vanek, therefore no recovery for
secondary victims.
Mustapha v. Culligan - the most recent case we have - OCA rejects the distinction between primary and secondary
victims - for a primary victim in Britain, if physical injury was reasonably foreseeable, psychiatric injury will also be
considered reasonably foreseeable – no matter how unreasonable (Page v. Smith) - but in Canada, the psychiatric
injury has to be reasonably foreseeable –
R.F. Test: is it R.F. that a person of normal fortitude/sensibility is likely to suffer some type of psych harm as a
consequence of the DEF’s neg conduct? + Proximity
Some Limits (Vanek)
• Psyc Injury must have been reasonably foreseeable - a "probable consequence" - Mustapha
• Recovery limited to serious psychiatric injury, that is, a recognizable psychiatric illness
• Psychiatric injury broadly defined to include mental illness, neurosis and personality change
Excluded :
• Fear, mental distress or grief (Odhavji)
• Grief compensable under some provincial legislation and in Quebec (Augustus)
• HYPERSENSITIVTY - Reaction must be 'reasonable' in the circumstances (unless the PLF had knowledge)
WHAT ABOUT CULTURAL SENSITIVITIES vs. 'reasonable man'? (Mustapha)
RELATIONSHIP BTW K AND TORT
Tort liability for neg statements not confined to non-K parties. - BUT Existence of K could be evidence of Proximity
Parties may K out of many common law duties. In cases where there is a neg misrep, we ask whether the tort law will
none the less apply.
"Unless there is something in the K that specifically negates liability for neg misrep, the mere existence of the K, albeit
that it deals with the same subject matter as the alleged neg misrep, does not limit or negative the duty." Linden &
Feldthusen, Canadian Tort Law, at 456)
Central Trust v Rafuse (SCC 1986, CB, Note 5 at 459)
"1. The common law DofC that is created by a relationship of sufficient proximity…is not confined to relationships
that arise apart from K." (CB at 460)
"2. A claim cannot be said to be in tort if it depends for the nature and scope of the asserted duty of care on the manner
in which an obligation or duty has been expressly and specifically defined by a K. Where the C.law DofC is co-
extensive with that which arises as an implied term of the K it obviously does not depend on the terms of the K, and
there is nothing flowing from contractual intention which should preclude reliance on a concurrent or alternative
liability in tort." (CB at 460)
"3. A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to
circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute
the tort. … [In all other cases] the plf has the right to assert the cause of action that appears to be most
advantageous…in respect of any particular legal consequence." (CB at 460, emphasis added)
Advantages of Tort
• K may be statute-barred eg limitation periods K run at breach, tort - discoverability (Central Trust. v. Rafuse)
• Products & Services - Warranty may have expired
• Possibility of Higher Damages in Tort
• With a bad K, sometimes expectation damages are not as good as Tort reliance damages (Rainbow Cleaners)
• Pre-K statements that do not become a term of the K
BG Checo v. BC Hydro (SCC 1993) Majority
• The existence of a K term does not outright negate tort liability
• If a breach of a K term also = a tort claim, PLF can choose which one is most beneficial, except where the K
indicates that the parties intended to limit or negative the right to sue in tort.
• This respect the freedom of the parties to K what they want
• BUT – the mere existence of a K term that deals with tort liability doesn’t negate it – it all depends on how the
parties dealt with it
• "We conclude that actions in K and tort may be concurrently pursued unless the parties by a valid contractual
provision indicate that they intended otherwise. This excludes, of course, cases where the contractual limiation is
invalid, as by fraud, mistake or unconscionability. Similarly, a contractual limitation may not apply where the tort
is independent of the contract in the sense of falling outside the scope of the contract, …"
The mere fact that something has been dealt with does not mean that an action of tort can not arise form it. The tort law
duty is always there, it is only diminished by what is expressly dealt with in the K. 3 scenarios:
1. where the K terms are actually more stringent than tort law. In such a case the P can still use the
tort law but would be illadvised to, b/c the K remedy would be better.
2. where parties have agreed to a term that exempts them form tort liability. In this case you do not
have a tort remedy. But the exemption must be very clear and specific
3. where the tort and the K liability are co-extensive. The P has the option to sue in either.
The facts of the case fall most closely into the third scenario. D had a common law duty not to make negligent
misrepresentations. This was distinct from the K duty to clear the lines. Thus they had a claim in both tort and K.
London Drugs v Kuehne & Nagel – SCC – 1992: as long as a relationship of proximity existed between the EE’s and
the client, a DofC was owed. It did not matter that the EE’s were performing the very essence of the K between their
ER and the client at the time of their careless act.
DUTIES REGARDING PURE ECONOMIC LOSS
• Consequential Economic Loss: financial loss causally connected to injury to P’s person or property
- e.g. a person who suffers physical/psychological injury may suffer consequential economic loss such as medical
expenses and lost earnings
• Pure Economic Loss: financial loss which is not caused by injury to P’s person or property
- e.g. defendant's negligence has resulted in plaintiff's financial loss
Cooper v. Hobart – a leading case – Generally damages for PEL = RARE
Problems with PEL
Neg that causes damage to economic interests of one person may have a ripple effect causing related economic harm
to many others – e.g., neg acts that: - sever the supply of electricity to a city - close major transportation routes -
disable communication networks - disseminate erroneous investment advice to the world via the internet
Recognition of neg liability in such circumstances raises the specter of “liability an indeterminate
amount for an indeterminate time to an indeterminate class” ( Ultramares Corp v. Touche)
Tort or contract? (Qualitative difference)
QUESTION Should tort law allow recovery for losses that party should’ve accounted for in a K?
o K obligations arise as a result of an agreement between parties
o Negligence is more general and is a duty towards people
o In K law, people can protect themselves thru their Ks (Privity and Consideration)
o Recognition of a tort liability strains boundaries between K & Tort law
o Central Question Should tort law provide remedies for losses in business
which the K should have already provided for?
Types of Economic Loss – exceptions to the Gen Rule that PEL is not recoverable
Negligent misrepresentation
Negligent performance of a service
Economic loss caused by defective products or structures
Public authority liability
NOTE economic loss cases are more about deterrence than compensation like injury. If were about compensation,
it’d really just be a transfer of wealth.
NEGLIGENT MISREPRESENTATION – the first and most Significant PEL
Neg Misrep issues: (1)Is a duty owed (HB and Queen); (2) if so – to whom does this duty extend and for what loss
(Hercules); (3) Other issues about concurrent Liability in Tort and K
(1)IS A DUTY OWED??
Hedley Byrne v. Heller (HL 1963) One can be held liable for neg misreps that result in PEL in cases where a “special
relationship” between plf and def gives rise to a DofC
DEF not liable due to disclaimer cause
Neg Acts and Neg Words must be treated differently: Neg’ly made item will only cause one accident – proximity is
easier to establish for physical injury. Neg Words can be broadcast and rebroadcast w/o the consent or foresight of the
speaker – bigger potential class of people affected.
Innocent misrepresentation = no cause of action, there has to be something more to create a duty – namely a special
relationship – the speaker expressly/impliedly taken on some responsibility
o This becomes a limiter to the scope of parties you could be liable for - Not a
guiding principle
o On the facts, the factors that supported finding a special relationship
HB had requested a credit report
Def’s expertise (bank should know about their client)
Reasonable reliance by HB on the statement (Ct weighed this the
most)
Relationships where it is plain that the party seeking the info/advice was trusting the other to exercise a degree of care
= where it is reasonable to rely + the info giver knew/ought to have known that the inquirer would rely on the info
Info Providers can always: not answer/provide info; answer with qualifications (ie disclaimer); or just answer. If last
option taken, info provider can be held to have accepted some responsibility for his actions
Special relationship exists where it is REASONABLE for plaintiff to rely on defendants statements.
This won’t occur in a social situation (advice at parties) - If it’s reasonable for them to rely and I don’t give a
disclaimer, I have accepted some responsibility for my statement - Reasonable reliance is necessary
Queen v. Cognos Inc. (1993 SCC)
Facts - Plf alleged neg misstatements made to him during a hiring interview (length of emp’t etc) – but emp’t K
provided that employer could terminate plf at anytime - Plf quit existing job and moved to def’s company - Company
downsized and plf was reassigned and then laid off - Plf sued for PEL for his reliance on statements that were made in
job interview
SCC’s 5 requirements for successful negligent misrep claim
o Duty of care based upon a special relationship
o Statement or advice = untrue, inaccurate, or misleading
o The representor acted negligently in making representations
o The representee reasonably relied on misrepresentation and
o The reliance must have caused damages - EL
SCC holding - Disclaimer in the K did not save DEF - Special relationship arose from the context of the interview, not
the K – Description of the job coloured the PLF’s actions after inc signing the K – No evidence that the DEF would not
be responsible for the statements made in the interview = the disclaimer didn’t refer to these reps
SCC - Special relationship can be found by asking whether plf’s reliance reasonable and foreseeable OR did defendant
assume responsibility for the advice
Special relationship factors: skill of the advisor, skill of the advisee, the nature of the occasion, whether the advice
was solicited, whether DEF obtained and indirect/direct financial benefit, and what the advice was
(fact/opinion/speculation) - Failure to divulge information can lead to action (Spinks)
REASONABLE RELIANCE: Avco Financial Services Realty Ltd. v. Norman (2003 SCC)
makes distinction between reasonable reliance (DUTY) on advice and reasonableness of other aspects of the plf’s
conduct (contributory negligence) - Reasonable reliance existence of duty - Found that neg misrep and contributory
negligence can coexist - Questions re: other aspects of plf’s behaviour can go to contributory negligence
Plf’s contribution is not used in determining liability of def but may go to determine the extent of the loss
PROVING RELIANCE: The Pas (Town) v. Porky Packers Ltd. (1976 SCC) – Despite Neg Misrep – if loss not
caused by it (if no reliance) – no liability - Plf failed to prove reliance in this case - Plf’s burden in economic loss cases
is similar to burden in proving causation – Plf’s reliance on that info not reasonable
(2) IF SO – TO WHOM DOES THIS DUTY EXTEND AND FOR WHAT LOSS?
Hercules Management (SCC 1997)
Formula for establishing a DofC in negligent statement cases:
1. Does a prima facie duty of care (PFDofC) arise between the parties?
• PFDofC is based on RF and ‘special relationship’
• a ‘special relationship’ will exist when (1) the advisor ought to have reasonably foreseen that the advisee
would rely on the advice and (2) where that reliance would be reasonable – reasonable reliance – most impt
2. Are there any policy reasons that might negate or reduce the duty?
• in the context of negligent statements, these policy reasons generally relate to the problem if
indeterminate liability of a duty is imposed on the facts of the particular case
Factors of Reasonable Reliance:
(1) The DEF had a direct/indirect financial interest in the transaction in respect of which the representation was made;
(2) DEF is a professional – or – someone with a special skill/judgment/knowledge;
(3) The advice or information was provided in the course of the DEF’s business;
(4) The info was given deliberately, not in a social context;
(5) The info was given as a result of a specific inquiry/request
These – NOT a strict test for reasonableness – but help in distinguishing – the first (4) unquestionably PFDofC
Indeterminate Liability Factors: DEF must know identity of class + Loss must arise from Reas Rel on the statement
for the purpose for which it was created - knowledge of the class is not enough to subdue indeterminate issues, for if
the known class relies on the statements for purposes other than for the one prepared = indeterminate liability.
Here – here statements made for decision on how direct the company – not providing investment advice for investors –
Therefore, Floodgates and indeterminate if duty recognized, so DofC negated
Liability will be negated unless
• There was foreseeable reliance on the statement by a limited class of persons known to the D and P is a
member of that class; and
• Information was used for the purpose for which it was provided - (Hercules) - audit reports intended to
assess management, not for investment purposes.
Haskett v. Equifax (2003) claim: neg misrep btw plf and his credit reporting agencies (def); problem: here the neg
statements were to third parties – but which caused the PLF economic loss
A. Stage One: PFDofC if
(1) the relationship of the parties is one of proximity and damage was reasonably foreseeable from DEF’s conduct
(2) The policy of the law should recognize the relationship was one of proximity
(3) The cause of action is analogous to the recognized category of Neg Misrep or it is novel and ought to be made a
new category
1. Why is there an analogous duty? Have the elements of a neg misrep – w/o reliance by the affected party. And
the representor has effectively assumed responsibility for the accuracy of the information b/c of the potential
harm – similar to a reference letter in the emp’t context & indirect reliance is still reliance that could cause
financial harm
2. Why is there a new duty? Relational and causal proximity are present
B. Stage Two:
No indeterminate class – b/c class known to DEF/timing of harm not indeterminate, once mistake identified/purpose
of the reports known.
Alternative Legal Remedies – not the same b/c damages = punitive not compensatory and they are difficult to access,
costly and time consuming.
David v. Halifax Ct found in favour of the plaintiffs on the basis that a negl representation can be made in reference to
a future event
Neg Misrep Summary:
"1. A common law duty of care in tort will arise as a result of a relationship of sufficient proximity and it is
unimportant in this regard whether the relationship arises in a contractual or non-contractual setting."
– Applies to professionals giving opinions and advice and as well to others with special knowledge
(Cognos)
– D must foresee reliance and the reliance must be reasonable
– reasonableness assessment depends on relative skills of parties, the context, whether advice solicited and
the nature of the advice given
– Reliance not reasonable if made on social occasion or otherwise in circumstances in which care cannot
be assumed
– Reliance will not be found if P has as much or more knowledge or better access to it than D (Town of the
Pas v. Porky Packers).
– Omission to disclose may also be a basis for negligence
– Dispute exists over whether findings of contributory negligence are appropriate in these cases (Linden
(PFDofC + Contrib neg = OK) vs Klar (PFDofC + Contrib Neg = Contradictory).
– Liability for negligent misstatement constrained by requirement that to avoid indeterminate liability
courts require that not only is it reasonably foreseeable that there will be reliance and reliance is reasonable
in the abstract, but also
(a) that D. knew of the P. as one of an identifiable class, and;
(b) the statement is used by P. for the purpose for which it was prepared by D. (Hercules Management)
"2. A plaintiff can sue a co-contractant in tort for a pre-contractual negligent misrepresentation unless the terms of
the contract limit, modify or negate the duty which otherwise would have been owed."
"3. A plaintiff can sue a co-contractant in tort for a pre-contractual negligent misrepresentation, even if the
representation being relied upon as the basis of the tort claim has become an express (or implied) term of the
contract."
"4. A party suing in tort for a negligent misrepresentation which also consist of a breach of the contract will benefit
from those advantages offered by the tort claim, for example, the applicable limitation period or the manner of
assessing the plaintiff’s damages."
"5. The same principles apply, where appropriate, to post-contractual representations."
Breach of Duty
i. Untrue, inaccurate or misleading representation
ii. Representor acted negligently in making representation
iii. Representee must have reasonably relied on representation
iv. That representation must have been detrimental -- damages resulted
Untrue, Inaccurate or Misleading Statement
D’s statement must have been untrue, inaccurate or misleading –
Cognos Courts should adopt flexible approach
David Told they would get surplus back… UNTRUE
Liability may also arise from failure to disclose relevant information – Spinks v. Canada
Standard of Care – Cognos
Reasonable person standard – What a reasonable person would do to ensure accuracy of information in the
circumstances to ensure accuracy of statement.
IF PROFESSIONAL: Ordinary/competent solicitor - or other member of profession… not required to know everything,
although “must have sufficient knowledge of the fundamental rules or principles of law applicable to the particular
work undertaken.
must “bring reasonable care, skill and knowledge to the performance of professional service which he has undertaken”
(Central Trust v. Rafuse)
Causation
P must show that s/he in fact reasonably relied on the negligent information to his or her detriment
Queen v. Cognos
Hercules v. Ernst Young
Porky Packers
Damage caused by Reliance
P must have suffered economic loss as a result of reasonable reliance on D’s negligent statement
REMEDY?
Restore the D to the position they would have been had the representation never been made (Cognos)
Contributory Negligence
As a matter of fairness and justice, should P be held contributorily negligent where reliance was foreseeable but P
failed to exercise due care in her/his reliance on the information
AVCO D led P to believe they didn't need to renew their life insurance, but court found that the Plaintiff also shared
some of the blame… contributory negligence
NEGLIGENT PERFORMANCE OF SERVICES
Situation may arise where:
1. P suffers economic loss from the negligent performance of gratuitous services;
OR
2. 3rd party beneficiaries suffer economic losses due to the negligent performance of a contractual
undertaking b/n P and another person. Privity of K precludes non-contracting parties from suing on K
I.Prima Facie Duty/Special Relationship Established where
1. D assumed responsibility to perform the service in question
2. There is a foreseeable and reasonable reliance
3. D was negligent in the performance of the service
4. P suffers economic loss as a result of D’s negligence
II.Policy Factors - Indeterminacy ?
i. Gratuitous Services - indeterminacy unlikely b/c liability ltd. to beneficiary
ii. 3rd Party Beneficiaries - REAL DANGER of indeterminacy - extent of loss could be unlimited
If a real risk, courts w. negate liability and find no D.O.C.
Factors that may negate liability
# of potential claimants
Whether P was an intended beneficiary of K, and
P's reasonable reliance D’s undertaking to his/her detriment (BDC Ltd. v. Hofstrand Farms, [1986] SCC
The policy concerns:
The extent to which non-K third parties should be able to recover PEL – suggests that they are in almost a K
relationship – where the third parties have been influenced by the Neg Misrep – inderminacy is greater in neg misrep
than here
Hofstrand v. BDC – 1986 – SCC (Currier failed to deliver crwon grant to plf on time, plf deal w/ 3rd party fell apart)
Ct: there was no actual/constructive knowledge of the contents/class – so injury of late delivery not reasonably
foreseeable. Also, not a proximate relationship between PLF and DEF – DEF K with Crown, and the risk to PLF arose
because of its K with a third party – Also, no reliance on DEF by PLF. To make DEF liable – indeterminacy issues and
broad scope of liability
Wilhem v. Dixon SASK CA - 2000: Writing of wills
DEF = lawyer, who failed to investigate title that a testator devised in his will – the title actually had been transferred to
a corp years ago – so the gift failed, and the intended beneficiaries sued.
Issue: Liability of a lawyer to disappointed beneficiaries
This relationship = difficult to fit into HB, because the work was done for the testator, not the beneficiaries – also the
beneficiaries did not rely on the work of the lawyer
Other problems with extending the liability of a lawyer to disappointed beneficiaries:
• Privity of K – beneficiaries = third parties, terms of K insured between the lawyer and client
• Claim here is for a loss of an expectation, not the loss of a right
• Possible indeterminate class
• Illogical to impose such a duty when even the testator doesn’t owe such a duty
Nevertheless, there are reasons why the duty should be owed:
1. The disappointed third party is often the only person to suffer a loss and the law should offer a remedy
2. The need to recognize the importance of people’s ability to bequeath property to whom they wish and to
recognize things that may frustrate this
3. No injustice to hold the lawyer liable
4. The public relies on lawyers to prepare wills, to not recognize a duty would negate this fact
This same reasoning can be used for other professions especially those that have internal regulating bodies.
ECON LOSS CAUSED BY DEFECTIVE PRODUCTS AND STRUCTURES (KEY= DANGEROUSNESS)
Someone suffers economic loss because of a defect in the product. Usually concerns subsequent purchasers, and not a
party to the original K.
Policy – no indeterminacy, deterrence, purchaser no position to protect themselves, d is better position to insure against
the risk
Rivtow Marine Ltd. v. Washington Iron Works 1993 SCC
The DEF knew of the structural defect at least a year before, and hadn't warned the PLF and others that they had been
contracting with.
The PLF sued for special damages for the cost of repairing the crane and the loss of its use during the repair period.
Ct MAJ: The PLF denied the cost of repairs, they were covered explicitly by the K; they were awarded for the failure
of the DEF’s duty to warn; awarded for the cost to remove the crane during the season, BUT not for the lost profit
DISS: if a defect in a product poses the risk of physical harm, as opposed to not being able to operate properly, the
plaintiff should be able to recover all types of economic loss to ensure that the product did not actually cause physical
harm (this dissent was adopted by SCC Maj in Winnipeg Condo)
Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. 1995 SCC
Is a builder of a condo liable to a subsequent purchaser, to whom to K duty is owed – for costs of repairing defects as a
result of neg construction?
Neg here – not merely shoddy construction – it was dangerous. The level of dangerousness is the cornerstone of the
policy analysis in determining if costs of repair are recoverable in tort – there is a difference between shoddy and
dangerous – and builder should be liable for the repair of dangerous defects
Where a contractor is neg in the planning/construction of a building, and where that building is found to contain defect
resulting from that neg which pose a real and substantial danger to the occupants, the reasonable cost of repairing the
defects and putting the building back into a non-dangerous state are recoverable in tort by the occupants.
Was there a proximate relationship between the builder and subsequent purchaser – insofar as the builder knew or
ought to know that neg could adversely impact subsequent purchasers?
YES – a lack of privity of K between the builder and inhabitants when the defects manifest doesn’t make the potential
for injury any less foreseeable – the tort duty = protect the bodily integrity and property interests of the inhabitants -
allowing recovery would encourage socially responsible behaviour.
Any policy considerations that ought to negate either the (a)scope of the duty; (b) to whom it was owed; (c) the
damages which a breach may give rise?
2 issues: (1) concurrent liability in tort and K + indeterminate liability
(2) Cavet Emptor
(1) Concern with overlap between tort and K duties
Here – the obligation to create a safe (non-dangerous) building = separate from any K responsibility – therefore doesn’t
make sense to allow builder to protect himself with a K, when this duty = separate
The tort duty to construct a safe building is a circumscribed duty – that is not parasitic upon any K duties between the
builder and the original owner.
No indeterminate liability because (1) no indeterminate class – because the building was built for inhabitants and the
duty is owed to them; (2) no indeterminate amount – it is whatever it costs to place the building in the realm of
reasonable safety – ie free from defects that present a real/substantial danger - Burden here is on the PLF to show that
there is a real/substantial danger caused by the DEF neg construction; (3) no risk of indeterminate time, because the
builder will only be liable for the cost repairing dangerous defects that arose do to the neg construction during the usual
life of the building – as time passes, it will be tougher to show that the builder’s neg = cause.
(2) Cavet Emptor
This cannot serve as a complete shield for the tort liability of a builder, this concern hinges upon inspection, to discover
latent defects and have them assessed – but this requirement obscures the modern market – the builders, because of
their skill, knowledge, expertise – are in the best position to ensure/assess the reasonable structural integrity of the
building and the freedom from latent defects
To impose liability – provide important incentive – PLF attempted to inspect, but this defect = impossible to know via
reasonable inspection.
Hasegawa v Pepsi 2002 BCCA – claim failed because PLF failed to show that the water = dangerous to human health
Liability here only impose for economic loss where the product is dangerous
IMMUNITIES
MOM TO UNBORN CHILD?
No DofC unless harm = foreseeable and PLF DEF in a proximate relationship – this = PFDofC, but it can be negated
on policy grounds - Cnd’n crts have consistently held that fetuses are not juridical/legal persons until born alive (Born
alive doctrine reaffirmed in Winnipeg Child and Family Services v G)
Once child born alive, law MAY recognize life began before birth, for limited purposes
One purpose – third party neg causes harm to pregnant mom, if child born alive, child can sue 3rd parties for
damage accrues at birth since an unborn child is w.in the foreseeable risk incurred, for eg. by a negligent
motorist: Duval v. Seguin May be tough to prove causation in this context, but to deny recovery here, runs
against Donoghue
Is the fetus a Reasonably foreseeable victim? Yes – a D of C exists only: (1) if DEF owed preg mom a D of C; (2)
Child is born alive – the D of C is to the born alive child for injuries suffered in utero
Dobson v Dobson – SCC
Can a child sue mom for injuries suffered while in utero? – Should tort law impose of DofC on moms to avoid injury to
fetus? - Maj: affirmed third party liability – if dad was driving – OK, but denied DofC to mom because of different
relationship and policy grounds
Duty Analysis
Stage 1: Is the relationship proximate that harm = reasonably foreseeable? Assumed but not decided – Policy to
negate? Yes: (1)Privacy/Autonomy of women would be inappropriately violated because they could be liable to baby,
even though no duty owed to a third party – this is different than any other party’s duty to fetus – also, this could
adversely impact the family unit
(2)Difficult to articulate the standard of care – 2 proposed (i) reasonable preg woman std – rejected because could lead
to unjustified scrutiny of women’s lifestyle choices and a single standard is tough to formulate because it’s a
heterogeneous population – also would be arbitrary in some respect. (ii) lifestyle choices particular to parenthood –
these distinctions unworkable
If DofC wanted, must come from Gov’t – carefully crafted leg, not broad tort duty – the existence of insurance claim
should not drive the development of tort law – the pressing social issue here is the lack of support for special needs kids
– tort aint the way to provide this support
Diss: mom should owe a DofC if she knows or ought to know that she was preg – and doesn’t affect the autonomy of
women because here a duty already owed to public not to drive neg – so the question is should the rights of moms
prevail over kids equally valid rights? Policy reasons, not substantial
Crits of Maj/Diss – see other outline
Post Dobson – Alta govt created leg (Maternal Tort Liability Act) exception that is narrow and focused – crit = shifted
the state’s obligation to fund these kids to insurance companies.
GOVERNMENT IMMUNITIES:
Because of the unique position of government, compromise reached - can sue government for operational activities –
NOT policy decisions – but this is not straight forward "There is no apparent pattern in the judgments or any way to
predict whether a court will decide that a specific governmental activity is a matter of policy or operations." Klar,
Historically, Crown could not be sued at common law –but this changed during the ‘50’s, through the leg enactment
Proceedings Against the Crown Act
5.1) Except as otherwise provided in this Act, and despite section 11 of the Interpretation Act, the Crown is subject to
all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, in respect of a tort
committed by any of its servants of agents.
Municipalities = creatures of statute – not immune, but the statute that creates them limits their liability
Problems with suing the government
(1) Enabling legislation sets specific conditions to sue – eg limitation periods/immunities etc
(2) Policy/Operational distinction – determines what should and shouldn’t be held to negligence law. Some are easier
than others – eg Public officials driving a car/building a building owe the same duty as everyone else. The distinction is
tough is other contexts – the question is not IF the court should apply a DofC – the question is whether they ought to
Courts a reluctant because:
(a) Political activities should not be subject to judicial scrutiny – for the government is accountable to the electorate in
this respect
(b) Government and Government officials – assess public interest and balance between various interests – invariably
someone losses
(c) Budgetary concerns/Scarce resources
(d) Policy decisions require high level of expertice/advice – courts are hesitant to second guess because it is not their
role to do so, and it would be time consuming in the courts if all of a sudden it started to do this
(e) Concern that a duty of care to every decision = FLOODGATES
(f) A large duty of care could restrain government action, could paralyze government decision making
Despite these concerns – government liability has expanded – ie through statute/negligent advice (similar to negligent
misrepresentation for private persons ie hedley byrne)
Statute – rarely express statutory duty – Cts apply the Anns (Cooper) test – but the first step (foreseeable harm +
proximate relationship) is a tough one for a government analysis – ie Cooper v Hobart, no proximity
But even if a PFDofC found – can be negated on policy considerations (2nd step) – big deal here – the courts cannot
second guess government policy decisions – this concern led to the policy/operational distinction
if no express statutory duty, then use the Anns/Cooper test to see if a new Crown duty should be imposed:
1) rela’ship of foreseeability and proximity (proximity policy analysis)
2) residual negativing/limiting policy considerations = (policy/operational framework)
Just v B.C. SCC 1989 Boulder Plf sued the gov’t – said was neg in implementation of inspection plan and preserving
the safety of the highway
Maj, complete crown immunity = intolerable – but must remember that the government is a peculiar party, different
than people and corporations –must be free to act/make decisions without being constrained
But a DofC should apply to public authority unless there is a valid reason for its exclusion
Policy decisions: initial or threshold decisions as to what needs to be done - made by high-ranking government
officials, but can be made at all levels. Policy decisions are reasonable exercises of bona fide discretion –
decision must be reasonable – this is the std of care
Operational decisions: re how to implement a policy; operations decisions include secondary level decision-making re
the delivery of services - may be subject to a tort duty of care
Although a DofC exists, that may be the same as one owed by a person, the corresponding standard of care may be
different – eg, maintain ones sidewalk vs maintain the prov’s highways – the duty = same and the standard ie
inspection frequency = different.
When assessing the standard, must make note of the actual context in which D had to operate, gov’t must be
given the chance to demonstrate that it balanced the appropriate concerns/issues including
financial/personnel/equipment.
To determine a DofC: are the parties in a relationship of sufficient proximity to warrant the imposition of a duty:
exemption here = statutory restraints and the policy/operational distinction
Policy decisions, the characterization rests on the nature of the decision, not the identity of the maker –
budgetary allotments; bona fide discretion
After this – look to see if the standard was met – the manner/quality of an inspection system – clearly part of the
operational aspect of government – decisions here were manifestations of the gov’t decision to inspect, therefore –
operational.
-----
There is no liability if: (framework Just – negligent in maintaining rock face)
Statutory immunity: E.g. Local Government Act
The decision is a policy decision:
• Although can occur at all levels – usually occurs at the higher levels (Just)
• Budgetary allotment for departments or agencies are usually classified as policy decisions (Just)
• Was the decision made a bona fide exercise of discretion (Just)
• Policy decisions are those that are threshold or initial decisions regarding what needs to be done (Just) – the
light house example – not to maintain policy, if decide to but implement poorly.
• The decision to operate a summer schedule of road maintenance in late fall was a true policy decision (Brown)
• Classic policy considerations of financial resources, personnel and significant negotiations with unions (Brown)
• Governmental decisions involving social, political and economic factors (Brown)
• The decision to inspect and identify diseased trees was a prelinary step in decision making process and was thus a
true policy decision (Swinamer)
• Inaction for no reason or inaction for improper reason cannot be a policy decision taken in bona fide
exercise of discretion. If city had contemplated what to do and decided not to do anything then there would be no
fault. (Kamloops)
• even if gvt conduct is immune b/c it is policy, it is still poss’ for liability to be imposed if it can be shown that the
policy decision was made in bad faith or was so irrational that it was not a proper exercise of discretion:(Kamloops)
• even if a duty is found, the std. of care may be diff’ for the Crown vs. what it would be for a private individual
Compare with operational decisions where there is liability –
• once a policy decision is made the courts are free to inspect the scheme (of inspection) to ensure that it is
reasonable and reasonable carried out in all circumstances] (Just)
• Decisions on how to implement policy are operational (Just)
• A non policy decision is one that is the product of administrative direction, expert of professional opinion, technical
standards or general standards of care.(Just)
Distinction between duty of care and standard of care
• Reasonableness of operational decisions must be assessed in light of the actual context which the D had to
operation including financial and political restraints (Just)
Examples:
Swinamer – policy to identify dangerous trees on highway (economic)
Swanson – operational: safety regulation enforcement decisions made regulatory body
Brewer Bros – operational: failure to ensure sufficient bond
O’Rourke, Jane Doe, Odhavji – doc imposed on police officers (not policy)
Local government act – placed limitation of liability
Post Cooper – likely that the policy operational distinction will be replaced with relationships of proximity
Brown v. BC – gov’t decision to maintain the summer schedule of road inspections through the winter – deemed a
“classic” policy decision – took into account money, people, and government negotiations (ie social, political and
economic concerns)
Swinamer v Nova Scotia Prov identified trees that needed to be removed – a different one fell of the Plf’s car – Court
held that the identification was a preliminary step to making a policy decision, done to help set priorities for available
money – the subsequent decision would have been a “classic” policy decision – because no irrationality/bad faith/neg
in the operational aspects of this decision – no liabilty
One place to attack a policy decision was found in Kamloops v Nielsen – where the policy decision was made in bad
faith with improper motives – misuse of discretion - The decision was not a policy decision, for it was not a bona fide
exercise of discretion – the City could have done many things (injunction\court order) even if the city considered the
problem and decided not to do anything, it would not have been held liable – but because it didn’t do anything – liable.
But shortly after Kamloops - BC Local Government Act - Municipalities can't be sued for building codes/by-laws,
notice of damage must be given w/in 2 mos., action must be commenced w/in 6 mos.
Post Cooper v Hobart – going to be tough to make a claim against the government – Courts not likely to find sufficient
proximity to find a prima facie duty of care. And if this is net – the policy/operational distinction takes place in the 2nd
stage of the test (residual policy decision)
This situation is said to limit finding a duty on government – for finding a relationship of sufficient proximity =
tough, and if make that – the policy/operational distinction – wildcard.
2. STANDARD OF CARE:
Central question once DofC established – did the DEF deviate from what the RP would have done in similar circ’s?
PLF to prove that DEF departed - Objective Std set by the Cts
Std content of the Std of Care
Unreasonable risk – balance the dangerousness of Def’s activity versus the social utility/usefulness of it - an
unreasonable risk is created when the danger of the DEF’s conduct outweighs its social value. To figure out whether
the danger is greater than the social value, balance the following considerations:
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was the risk of such a nature and degree that the reas’ person would take steps to protect against it? The risk
must be substantial/unreas’ if the RP was going to take such precautions: Bolton v. Stone
If probability of injury is low – Ct may say risk is reasonable – if utility is high, risk that would be unreasonable may be
reasonable - There is no one std for everyone – age mental illness – professionals all have diff stds of reasonableness
4 main factors in assessing the relevant Std: Unreasonable risk/seriousness of harm/cost of avoiding/utility of activity
1. Unreasonable Risk
statistical probability of injury occurring. Reasonable foreseeability of risk per se is not sufficient to ground a
negligence action. The likelihood of injury occurring must also to be considered. D is required to guard against
substantial risk of injury but not mere possibilities of injury. Bolton v. Stone
Bolton test here: whether the risk of damage is so small that a RP in the circs would have thought it was ok not to
do anything that would have prevented the danger
2. Seriousness of Harm
The adequacy of precautions taken by the D is assessed in relation to the severity of the harm that is likely to occur
should risk materialize. The more serious the threatened injury the greater the degree of care expected of D –Paris v.
Stepney.
Gravity harm of seriousness of injry - assessed in RP std
-If the injury is serious, even if the chance was statistically low, then there is an expectation that precautions will be
taken to prevent that injury - Bolton-
3. Cost of Avoiding/Eliminating Risk
Courts balance the likelihood and severity of injury against the measures (and costs thereof) necessary to eliminate the
risk in determining the reasonableness of the D’s conduct in particular circumstances - Botting v. B.C
Cost-benefit analysis
USA judge in United States v. Carroll Towing came up w. a formula to calculate remedial costs to determine whether
the risk was unreas’ - P = probability of injury; L = degree of loss; B = burden of remedial measures
if P x L < B, then no unreas’ risk, therefore no liability / if P x L > B, then unreas’ risk, therefore impose liability
Rationale/Crit see big one
4. Utility of D’s Activity
The degree and likelihood of risk must be balanced against the social utility of D's activity in deciding whether or not
the D has taken all reasonable precautions to avoid injury to others - Bolton.
What is the D doing; is there social value; is it worth the risk; is it more of a risk to forego the activity than to take
benefits as a society from taking the risks -Driving: benefits outweigh the risks; shouldn’t stop driving because there
are accidents -Argument often arises in context of emergency circumstances (addressed under special std)
REASONABLE PERSON – THE SUBJECT OF THE STANDARD OF CARE
Tort law does not req’ the wisdom of Solomon; All it req’s is that people act reasonably in the circ’s: Stewart v. Pettie.
is not an extraordinary or unusu’l creature; is not superhuman
is not a paragon of virtue: Arland (but sometimes the reas’ person std. is so high that one wonders…)
is not req’d to display the highest skill of which anyone is capable
is not a genius who can perf uncommon feats
is not possessed of unusu’ powers of foresight
Kodar’s caveats – it is not appropriate for the decision-maker (ie. judge) to use herself as the measuring stick for what
the reas’ person would do. However, the critique of the reas person std. asserts that this is exactly what judges do, since
the reas person is simply a legal fiction.
Vaughan v. Menlove - RP = Objective Std. Just b/c the DEF honestly thought that hay wouldn’t catch fire and damage
neighbours prop – doesn’t mean a RP in similar circs would have done so.
Justification for objective vs. subjective standard:
(1) Subjective was no standard at all b/c it would vary with the length of a foot;
(2)Suggests there is minimum standard of socially acceptable knowledge/intelligence below which you cannot fall
Blyth v. Birmingham Plug had worked for 25 years – then extreme frost, plug failed and house flooded
Ct: Neg = the omission to do something which a RP, guided upon those considerations which ordinarily guide human
affairs, would do or do something which a prudent RP would not do – b/c plug worked for so long, and failed b/c og
the most severe frost – this was not neg – no liability
Rationale for Objective Reasonable Person standard
Sets minimum for others; Provides consistency; Predictability; Promotes public safety; Decision making not left to
what judge/jury would have done b/c this would be inappropriate; Reasonable person – formed by collective notion of
reasonableness determined by the courts
Critiques: Inequality AND THE RP STD: See Big Outline – Feminist/cultural diffs and Disability Critique
INDICES OF REASONABLENESS: CUSTOM AND STATUTORY DUTIES
CUSTOM (GENERAL PRACTICE)
can look to external indicators of reas conduct, such as custom, industry practice and stat/reg stds: Ryan v. Victoria
custom/gen’l practice affects the law’s view of what an appropriate std. of care should be in a given circ’, but according
to Waldrick v. Malcolm, DEF claiming gen’l practice must prove:
1. existence of the gen’l practice
2. reasonableness of the practice
PLF must try to show that the gen’l practice was not reas’, or that the DEF departed from it. A departure from gen’l
practice may give rise to a presumption of failure to meet std. of care: eg. Brown v. Rolls Royce (emp’r didn’t supply
cream - but here, failure to supply cream, reasonableness supported by med testimony and no evidence that failure to
supply caused disease)
No amount of repetition of a careless practice will make it any less careless: King v Stolberg
Whether compliance with custom is evidence of due care depends on
1. Duration of practice /custom
2. Universality of practice
3. Status and reputation of the profession or trade and its members
4. Degree of difficulty of the conduct in question, and
2. Evidence of additional precaution that may have been available
crts are more likely to recog’ gen’l practice as setting an appropriate reas’ness std. in the professional arena, complied
simply to practice of people in a given locality: Warren v. Camrose (City). Why? b/c it prob’ly evolved over time
thru group consensus and is, therefore, potentially reas’ – Generally, courts are deferential to customary practices.
However, they retain power to decide whether a practice is reasonable in the circumstances notwithstanding customary
practice in particular industry.
STATUTORY STANDARDS
it’s rare for breach of a statute to give rise to private liability, w. the exception of alc. vendors (eg. s. 67 of Ont. Liquor
Licence Act).
In Sask Wheat Pool, SCC refuses to est’ a new separate nominate tort of stat’ b., saying that to do so would be to est’
liability without fault . - statutory b. may be evi’ of negli and statutorily imposed std’s may afford useful std. of care,
but b. of statute does not release the PLF from task of proving all other aspects of negli’ (duty, damages, causation, no
remoteness, no defences)
also a DEF can’t simply claim compliance w. statutory std’s b/c leg’tion cannot remove duty to act reasonably.
Compliance w. leg’tion doesn’t remove nec’ity for compliance w. C.Law : Ryan v. Victoria
a statute will gen’ly replace C. Law std only if it demands more caution from the DEF: Ryan
LIMITS OF STATUTE: PLF claiming b. of stat std. must:
be part of the group the leg’tion meant to protect: Kelly v. Henry Muhs Co. (firefighter down elevator shaft), see crt
stretching interp of stat to compensate PLF in Paulsen v. CPR (baby)
and the Stat’ stds have to have been aimed at the injry that the PLF suffered: Gorris v. Scott (sheep pens)
also, the PLF must prove that the b. of statute was the cause of the injury: Schofield v. Town of Oakville (bridge
collapses under weight of truck); Peacock v. Stephens (both drivers b’d statute)
SPECIAL STANDARDS OF CARE
Some specific groups of people will be held to different standards. Still considered Objective, same std of
reasonableness, but with capacities and training factored in.
CHILDREN - cases where children are sued are rare. Usually sued for contributory negligence.
Canadian test is mixed objective/subjective as in McEllistrum (1956) SCC – a child of similar age, intelligence.
experience
Heisler v. Moke, Test for adults objective. Follows McEllistrum Test for children containing 2 parts:
(1) Assess whether the child has the capacity to be neg (if not – stop here no liability) Concerned here with the
particular child (subjective – if this child is aware of any DofC) age, but one factor – 7 = the age kids start to
take responsibility for their actions
(2) Would a reasonable child of similar age/intelligence/experience have taken the same risk in the same circs –
objective test – law does not assume infants to have full knowledge/responsibility
McErlean v. Sarel. The test = essentially a subjective one which recognizes that the capacities of children are
infinitely various and accordingly treats them on an individual basis and out of public interest in their welfare and
protection – treats them more leniently than adults
Kids under 5 or 6 probably totally immune from negligence. By 15 or 16 adult liability will be assumed.
When young people engaged in adult activities – they will be held to an adult standard, eg driving a car, b/c one
cannot tell if the person driving the approaching vehicle is a child or adult. b/c of the inherent risks of driving motor
vehicles – kids held to adult standards. (Ryan v Hickson - Snowmobile accident case)
Nespolon v. Alford. Drunk dropped-off teen case. In this case, driving an adult activity, but dropping friend off on the
side of the highway near his house, this wasn’t an adult activity, therefore reduced standard.
Driving is a privilege not a right – comes with responsibility
Parental Liability for Tortious Conduct of Children
USA – some states allow parents of small children to be sued for the tortuous conduct of their kids. This allowed in
order to encourage supervision
Parents are neg for the conduct of the kids, if conduct is committed w/o Consent supervision knowledge
Ryan v Hickson - Snowmobile accident case. Father found liable for allowing unrestricted access without safety
instruction to his child. Father himself negligent.
Parental Responsibility Act (QL). Generally, for property damage in B.C.:
Parents liable in small claims court up to $10,000. Aggregate total - even if more than one child causes damage.
Parents jointly and severally liable; S.9 provides defense of proper supervision with reasonable attempt to prevent
MENTAL AND PHYSICAL DISABILITIES:
Std adjusted based on the extent of the disability – both permanent and temporary
Mental Illness (MI) Tensions in tort btw compensation and fault, breaks down like volition and capacity
Slattery v. Haley Def has sudden heart attack while driving, hits a boy and kills him; Def was found not liable, as he
had no pre-existing heart condition, and no signs of the condition that a RP would have recognized, so no DofC to take
care of himself with respect to his heart condition
Gordon v. Wallace (1974) Def had a history of heart attacks, was found liable for driving even though Drs never
warned him against driving
Roberts v. Ramsbottom - driver had a minor stroke just before he got in the car and drove, ct held that he shouldn’t
have gotten in the car and driven
if someone is drunk to point they are unaware, they will be found liable (voluntary consumption of booze) it was
unreasonable for them to be so intoxicated that they are unaware of what they are doing
if they are unaware they have ingested a drug, and nothing to suggest they should have known, then they will not be
held liable, R v. King
MI – Issue: If Def is capable of knowing how to conform to a particular std of care and meeting a DofC – debate is
compounded with the purposes of tort liability compensation v fault
Test : In order to be relieved of tort liability when a def is afflicted suddenly and w/o warning with a MI, that D must
show either of the following on a balance of probabilities:
• As a result of MI: the D had no capacity to understand or appreciate the DofC at the relevant time;
• or the D was unable to discharge his DofC as he had no meaningful control over his actions at the time the
relevant conduct fell below the objective std of care
Fiala v. Cechmanek – 2001 Alta CA
MI – denied capacity to reason and appreciate the DofC. Never diagnosed as a manic/depressive, suffered an episode
while jogging, attacked a car driven by Def, who hit the gas as a reflex and hit the plf’s care, injured driver and
passenger
Usually RP std relaxed for MI where MI prevents him from meeting the std of care normally required
Args in favour of holding MI to a higher std – compensatory aspect of tort law; difficulties in specifying the precise
nature/extent of MI; would encourage care givers to exercise better care; slippery slope that could erode the obj std
But, this negates the fault aspect of tort law – which is still a HUGE deal. Also, accommodation already made for
physically disabled and kids
Given the biologically roots of MI, distinction btw epileptics and MI = unjustified. No excuse not to accommodate MI,
when Phys disabled and kids already.
Also, scientific breakthroughs in the identification of MI = precise enough, and complexities and difficulties exist in all
aspects of modern litigation.
If you want to encourage caregivers to take more care, make them liable
Std to find neg, the act causing the damage must have been voluntary and the def must have the capacity to commit the
tort. The burden of showing the absence of these: Def, if def knew of and could discharge duty = volition and capacity,
therefore liability, def must demonstrate either MI = (1) no appreciation or (2) no discharge. This wont erode obj std.
Here, MI sudden, w/o prior knowledge (if was opposite = liable) so no fault, no liability.
Buckley OCA
truck driver crashed while under delusion his car was under control of remote control, Def previously unaware of MI
held: MI prevented him from understanding DofC, and discharging that obligation (no fault); as such no liability
Wendon v. Trikha 1991 -- Def escaped from locked psychiatric ward, was delusional, car accident, injured someone,
who sued hospital and psychiatrist, def held liable even though he was delusional at the time, knew of MI, didn’t take
meds and previously warned not to drive
EMERGENCIES:
Def’s acting in response to emergency that they didn’t cause; Ct’s sympathetic to people that do their best, they apply
the “sudden emergency doctrine” if a decision made that wouldn’t have been reasonable in non-emergency situation,
or if in retrospect the decision made wasn’t the best one – Def wont be held liable (Horsely v McLaren) -
Must balance the risk against end to be achieved – Watt
But this std won’t be applied if someone contributed to the emergency – a reasonable risk is determined differently
btw an emergency and non-emergency situation – Watt
Watt v. Hertfordshire County Council – in the case of emergency – the saving of life or limb justifies the taking of
considerable risk. The ends here are different than commercial/non emergency ends. Ends of risky action = impt in
assessing their reasonableness
Hogan et al v. McEwan et al - D swerves car away and hits people, while trying to miss a dog on the road, Ct: D
actions = least dangerous of the three options, all of which contained some risk, therefore conduct seen as reasonable in
the circs
Law Estate v. Simice - Medical Emergencies – Drs decision not to take CT scan of plf, causes death. Decision made
b/c Drs felt it was too costly to use. BIG criticism by Ct, conduct here = deplorable – when it comes down to choosing
btw saving a life or responsibility to medicare system as a whole, the former takes priority - greater financial harm if
afflicted patient goes undiagnosed than scanning an un-afflicted patient
PROFESSIONAL STANDARDS - LAWYER
Generally, higher std applied to people presenting themselves as possessing special skill/knowledge, b/c public likely
to rely on those representations
Duty of lawyer used to be only based in K, law used to prohibit concurrent liability in tort and K, but Central Trust--
you can now sue in both - concurrent liability – applied in Brenner v. Gregory
GR - Std of care for lawyer: Solicitor not required to know all law, as part of working knowledge in given fact situation
Must have sufficient knowledge in the fundamentals to allow them to know they need to do more research or that it is
outside their skill set (Central Trust)
Lawyer will be liable if ordinary competent solicitor would not have made same mistake
As long as it was reasonable to chose one of many choices, will not be liable if not "best" choice
Wechsel v. Stutz – lawyers CAN be liable:
• For way of treating client - Boudreau v. Benaiah
• Failed to meet or confer w/ client
• To third parties - if other party is represented, less likely that you owe a duty…(BUT Willhelm)
• Can owe duty, particularly in property transactions, if you don't do something you were supposed to do…
Whittingham v. crease &co.
Notes:
• a higher standard is demanded of specialists in their area of expertise (Elcano Acceptance)
• no greater standard expected of city lawyers than of country lawyers
• UK lawyers used to be immune, CDN never
• Judges are IMMUNE from tort liability - re Clendenning and Bd. Of Police Commrs of City of Belleville
• Only recourse is complaint to the judicial council - bias for way they were treated, intoxicated judges on bench
Brenner v. Gregory 1973 – in an action against a solicitor for neg, not enough to say that he made an error in
judgment or show ignorance on some particular part of the law, but he will be liable for damages if his error/ignorance
was such that an ordinarily competent solicitor would have avoided it. If the lawyer discharges the general approved
practice followed by solicitors in the area, he is OK – Neg not ignorance, must be gross to impose liability
a lawyer must have sufficient knowledge of the fundamental rules or principles of law applicable to the particular work
she has undertaken to enable her to perceive the need to ascertain the law on relevant pnts: Central Trust Co
lawyers are under an obligation to refer a matter if they lack the nec’ expertise to perf the task undertaken: Henderson
v. Hagbloom
a criminal defence lawyer can be held negli’ for bad wrk, even if the verdict would have still been the same, if the PLF
can prove mental suffering caused by the lawyer’s negli: Boudreau v. Benaiah
solicitors have been held liable to 3rd party beneficiaries for negli’ in drafting wills: Whittingham v. Crease; Ross v.
Caunters
it’s usu’ly hard to prove a lawyer’s been negli’, usu’lly b/c hard to show lawyer’s conduct caused trial outcome:
Wechsel v. Stutz
3. CAUSATION:
Factual issue of the connection between the def neg conduct and the plfs loss
2 types of causal links twn DEF’s conduct and PLF’s injury:
1. Factual causation – the physical link twn conduct and injuries
2. legal/proximate causation – this is actually REMOTENESS(see below sect. on remoteness)
PLF to est’ on bal of prob’s (Horsley v. McLaren) and usu’ly won’t be successful if only shows it’s a mere poss’lity
that the DEF caused the injury (eg. of failures in proof: Kauffman v. TTC – escalator ; Davidson – antirabies serum)
Snell v Ferrel - SCC – causation is the relationship that must be found to justify compensation - causation need not be
proved with scientific precision – BUT FOR IS DEFAULT, START WITH IT ALWAYS
TEST:
D F IN P C
EF O C R A
IN R A O- SE
IT F N PL S
IO A A F IN
N: C D O P
T A? R N
SI P T:
T’ R
: O-
D
EF
:
1. THE “BUT FOR” (AKA. CAUSE IN FACT)
PL be Y pr Sn
F st ES o- ell
m if th D v.
ust ca e EF Fa
sh us std , rel
o ati . bu l
w on tes t (E
th cle t is ye
e ar in no su
los an Ca t rg
s d na to er
w on da be y,
ou ly ap go
ld a pli es
no sin ed bli
t gl w. nd
ha e sci )
ve D en
oc EF tifi
cu in c
rre vo pr
d lv eci
bu ed sio
t n
for (S
th ne
e ll)
D
EF
’s
co
nd
uc
t
CONTRIBUTION
2. MATERIAL
PL for Y pr At
F w ES o- he
to he for PL y
sh n us F (2
o 1+ e ca
w D w r
th EF he ac
e or n ci
D m bu de
EF ult t nts
m ipl for th
ate e no en
ria fa t ba
lly ct ap ck
co or pr pr
ntr s op ob
i’d lea ria le
be di te ms
yo ng (A )
nd to th Bo
a sin ey nn
de gl )– in
mi e ie gt
ni inj an on
m ur er Ca
us y ro sti
ra of ne ng
ng PL ou s
e F s (a
– or dd
es un s
se fai de
nti r mi
all re ni
y su m
a lt us
bu re
t/f q’
or mt
for )
m W
ult al
ipl ke
e r
ca Es
us tat
es e
(H
IV
scr
ee
ni
ng
)
3. MATERIAL INCREASE IN RISK (CND’N VERSION – INFER CAUSATION) if if N pr In
PL m O, o- th
F ult bu PL e
ca ipl t F U
n e re K:
sh wr pl est
o on ac ’d
w gd ed in
th oe w. M
at rs crt cG
th w ’s he
e ho ab e,
D se ilit rej
EF b. y ect
m of to ed
ate du inf in
ria ty er W
lly to ca ils
in plf us he
cr oc ati r,
ea cu on bu
se rre for t
d d ha rei
th at rd nst
e dif pr ate
ris f’ oo d
k ti f in
of m ca Fa
inj es se irc
ur (e s hil
y g. (e d
(lit ex g. (as
tle po m be
ev su ed sto
id re ’l s
en in m ex
ce wr al po
to k pr su
jus pl act re)
tif ac ice .
y e ): In
dr to Sn Ca
aw dif ell n’,
in f’ . ab
g ha Si ilit
inf rm mi y
er ful lar to
en su to inf
ce bst m er
), an ax est
th ce im ’d
en s: res in
thi M ips Sn
s cG a ell
is he lo ,
en e) qu bu
ou ita t
gh M r. m
an ed ate
d ic ria
th al l
e M in
on al cr
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to e ris
th k
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D t
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er
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,
do
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on
us
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sa
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th
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is
a
ref
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pr
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m
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on
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th
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De
f
m
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ref
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to
av
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4. LOSS OF CHANCE if go N pr rej
PL od O o- ect
F for PL ed
ca w F in
n he – La
sh n na fer
o th tur ier
w e e e
th PL of v.
e F th La
D ha e ws
EF s inj on
de tro ur (br
pr ub y ea
ov le is st
ed est be tu
he ’in in m
r g g ou
of ca ch r)
a us an an
ch e ge d
an an d Ca
ce d he br
to eff re al
av ect v.
oi re: G
d inj up
th ur ta
e y
inj
ur
y,
th
ey
’re
go
ld
LIABILITY
5. ALTERNATIV
PL 2 Ye pr Co
F po s o- ok
pr ss’ (e PL v.
ov ca g. F Le
e us Co wi
bo es, ok s
th bu & (gr
ne t Le ou
gli do wi se
’, n’t s) hu
th kn nti
en o ng
D w );
EF w Su
s hi m
bo ch m
th er
he v.
ld Ti
lia ce
bl
e,
un
les
s
on
e
ca
n
pr
ov
e
ot
he
rw
ise
6. MRKT SHARE LIABILITY
PL for N Ve Si
F cir o- ry nd
pr c’s on pr ell
ov w ly oP v.
e he se LF A
th re en – bb
at PL so so ott
th F far m (D
e ca in uc ES
D n’t th h ca
EF rel e so se)
co y U th
m on S at
pa alt A th
ni ’ for er
es lia D e
he bil ES wa
ld ity ca s
a b/ se an
sh c s ex
ar it’ tre
e s m
in for el
th a y
e sm vi
mr all go
kt. nu ro
A m us
pp be dis
ort r se
io of nt
n D in
m’ EF Si
t s, nd
of all ell
lia of
bil w
ity ho
is m
ba m
se ust
d be
en br
tir ou
el gh
y t
on to
co crt
m
pa
ny
’s
mr
kt
sh
ar
e
Facts from Freya – in Sindell, the crt imposes mrkt share liability b/c of the essential tort principle that wrong-doers
should provide compensation to innocent parties (essentialism), also, an instrumentalist would say mrkt share liability
makes sense b/c companies have a better ability to spread loss, bear costs and allocate risk (ie. Serves deterrence
functions)
Professor Osborne But for analysis:
(1)Identify the harm
(2)Isolate the specific actions (or acts of negligence)
(3)Trier of facts must adjust facts to see what would happen if D met the standard of care
(4)Would the same harm occur anyway on the adjusted facts?
If contributorily negligent P, then will adjust in circumstance
For the Athey material contribution test :
• if DEF part of cause, they’re liable for all injuries caused / contri’d to (beyond the de minimus range (25%ish:
Bonnington Castings) by their neg.
• if multiple causes, but DEF’s is the only tortious cause, then DEF entirely liable, b/c to split btw tortuous and
non tortuous would deny the plf 100% compensation, for no compensation for non tortious cause;
• if multiple tortious causes, then DEFs will be jointly and severally liable, plf still get 100% compensation.
• if injuries are separable/divisible, DEFs will only be responsible for the ones they cause.
Inferring Causation
Requires CAUSAL UNCERTAINTY and KNOWLEDGE IMBALANCE
A. Causal Uncertainty - evidence points to a number of possible causes of P’s injury including D’s negligence
but there is no conclusive evidence that any one factor was a probable or necessary cause of P’s harm. Injury
could have occurred even w.out D’s negligence
B. Knowledge Imbalance - facts lie uniquely within the D’s knowledge - Medical malpractice and industrial
diseases are examples of such situations where Ds may have superior knowledge than P. Inference causation is
intended to balance the inequality of information or knowledge between the parties
Principles of Inferred Causation (Snell v. Farrell)
1. The legal or ultimate burden remains with P,
2. BUT if P can show at least an “inference” of causation (i.e. either caused or materially contributed to the
harm) even though cannot show positive or scientific proof of causation
3. and then D cannot show evidence to the contrary
4. then P has satisfied burden
the alternative liability theory is justified b/c it imposes liability only on those who were at fault (fault based theory of
tort liability) and b/c the DEFs are in a better position to prove/disprove and may have themselves destroyed the PLF’s
ability to prove one of them did it over the others. Similarly, in Athey, the SCC said that to release a DEF who contri’d
to the PLF’s injuries from liability would violate the essential purpose of tort law – compensation for fault.
DEF won’t be liable for injuries caused by independent intervening forces.
thin skull rule says DEF liable for full extent of injuries caused by negli, even if they are more serious b/c of
PLF’s preexisting condition; but the crumbling skull rule says if preexisting condition would have caused the
PLF’s injuries anyway, DEF only liable for losses suffered as a result of his negli’: Athey v. Leonati
4. REMOTENESS:
where duty asks whether the DEF should protect the PLF, remoteness asks how far they should go in doing so – is it
fair and just to impose liability on the def for these circs
T Di W Ty Po
E re M pe ss’
S ct 1 of lit
T: ne Fo inj y
ss re ur of
tes se y In
t ea fo ju
bil re ry
ity se fo
tes ea re
t bil se
ity ea
bil
ity
tes
t
D ne on If De
E gli ly ty f
FI ’ ho pe lia
N pa ld of bl
TI rti D ha e
IO es EF rm if
N: lia lia for co
bl bl es ul
e e ee d
for for ab ha
all for le, ve
da es D re
m’ ee EF as’
s ab lia ly
dir le bl for
ect co e, es
ly ns ev ee
lin eq en n
ke ue if th
d nc th e
to es/ e po
th da wa ssi
eir m y bil
ne ag to ity
gli es ge an
’ of t d
th th lo
eir er w
ne e re
gli wa m
’ sn ed
b/ ’t. ial
c D co
if on sts
no ’t to
t ne av
for ed oi
es to d
ee for it
ab es
le, ee
no th
t e
pr m
ev an
en ne
ta r,
bl pr
e eci
se
se
qu
en
ce
or
m
ec
ha
ni
cs
of
th
e
inj
uri
ou
s
ev
en
t
C Po W H W
A le ag ug M
S mi on he 2
E s M s (oi
S: ou v. l
nd Lo spi
1 rd ll
(oi A w.
l dv ot
spi oc he
ll ate r
an (la bo
d nt at
w er o
ha n w
rf an ne
o d rs
w m cla
ne an im
rs ho in
cla le) g);
im ; M
in La cK
g) uri en
tze zie
n (p
v. os
Ba s’l
rst ity
ea co
d un
(fr ts
ost so
bit lo
e); ng
dis as
se no
nt t
in fre
O ak
ke ish
(i );
m Bo
pa lto
le n
d); v.
W St
ei on
ne e
r
(fi
re
hy
dr
an
t);
As
sin
ib
oi
ne
Sc
ho
ol;
Fa
lk
en
ha
m
(st
ap
le
eat
in
g
co
ws
);
Jol
ly
(a
ba
nd
on
ed
bo
at)
U N Y Y Y
S O ES ES ES
E ov /N us ,
IT err O ed bu
? ul is in t
ed sti m it’
in ll an s
W “g y be
M oo ca en
1 d se cri
la s t’d
w” (se by
, e ac
bu ab ad
t ov e
ret e) mi
re cs
ats
…
P pr pr pr pr
R o- o- o- o-
O- PL D PL PL
P F EF F F
L –
F bu
O t
R no
P te
R th
O- at
D jus
E t
F: b/
c
ty
pe
of
inj
ur
y
for
es
ee
ab
le,
if
it
wa
sn
’t
act
ua
lly
th
e
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History
Re Polemis (1921)
Directness test: once having proved negligence, a claimant is entitled to compensation for all damages ‘directly
traceable to the negligent act’
Superceded by:
The Wagon Mound (No. 1) (1961 PC) CB 344
Foreseeability test: defendant is liable only for the reasonably foreseeable consequences of its negligence
“It is not the act but the consequences on which tortious liability is founded” (CB at 347)
Retreat from Wagon Mound:
1. Type of Injury - Hughes v. Lord Advocate (1963 HL) CB 354
Lord Reid: “[A] defender is liable, although the damage may be a good deal greater in extent than was
foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what is
foreseeable.” (CB at 355)
Lord Morris: “The fact that the features or developments of the accident may not reasonably have been
foreseen does not mean that the accident itself was not foreseeable. … [T]he defenders are not absolved
from liability because they did not "envisage the precise concatenation of circumstances which led up to the
accident"." (CB at 355)
Subsequent Cases - Liability Imposed:
Lauritzen v. Barstead (1965 Alta CA) CB, p. 356, Note 3
"Defendant should have foreseen "the dangerous consequences likely to flow from his negligent act in grabbing the
steering wheel. It does not seem to me that … the Wagon Mound case implies that recovery of damages should be
conditional upon foreseeability of the particular harm and the precise manner or sequences of events in which it
occurred." (CB at 356-57)
Weiner v. Zoratti (1970 Man QB), CB, p. 357, Note 5
"… it is not necessary [to speculate] about “the specific foreseeability of each specific event” … The plaintiff's
loss was a direct, probable and foreseeable result of the negligent breaking of the hydrant.” (CB at 357)
Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. (1971 Man. C.A), CB 358, Note 7
"It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the
damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensures is
foreseeable. In the case at bar, I would hold that the damage was of the type or kind which any reasonable person
might foresee." (CB at 358)
- example of linkage technique in which chain of events divided into sequence of foreseeable event
A narrative from step to foreseeable step allows the gulf from original conduct to harm
Falkenham v. Zwicker (1978 N.S.S.C.). CB 358, Note 9
- another example of linkage technique
"… damage was of the type or kind which a reasonable person might foresee. Damage to the plaintiff's wire fence
under the circumstances is what a reasonable person could anticipate. … Breaking of the fence, … indicates a
reasonable foreseeabiltiy of staples being ejected and eventually damaging the cattle that use this pasture."
Subsequent Cases - Liability Denied:
Doughty v Turner Mfg [1964 UK, CA] CB, p. 356, Note 2
- risk of burn from being splashed not of the same type or kind as burn from explosion
- although def owed a duty to not splash molten metal on plf, there was no evidence of a splash
Oke v. Weide Transport (1963, Man CA), CB 357,Note 4: (also excerpted on pp. 328-29)
Majority: Not reasonably foreseeable to defendant that someone would pass at a point in road where it was not legal
to pass.
Dissent: Defendant does not have to foresee “either the precise manner in which the accident would occur or that
the consequences would be so tragic." (CB at 357)
Tremain v Pike [1969 UK] CB 357, Note 6
"I do not accept that all illness or infection arising from an infestation of rats should be regarded as the same kind.”
(CB at 357-58)
Hughes v. Lord Advocate Recently Affirmed:
Jolley v Sutton London Borough Council (HL 2000), CB 359, Note 10
Lord Hoffman:… "[W]hat must have been foreseen is not the precise injury which occurred but injury of a given
description. The foreseeability is not as to the particulars but the genus. And the description is formulated by
reference to the nature of the risk which ought to have been foreseen. So, in Hughes v. Lord Advocate … the
foreseeable risk was that a child would be injured by falling in the hole or being burned by a lamp or by a
combination of both. The House of Lords decided that the injury which actually materialized fell within this
description, notwithstanding that it involved an unanticipated explosion of the lamp and consequent injuries of
unexpected severity…. I can see no inconsistency between anything said in The Wagon Mound No. 1 and the
speech of Lord Reid in Hughes v. Lord Advocate."
2. Possibility of Injury
The Wagon Mound (No. 2), CB, p. 359
"What is the precise meaning to be attached … to the word "foreseeable" and reasonably foreseeable" (at 359-
60)
"The findings show that he ought to have known that it is possible to ignite this kind of oil on water, and that
the ship's engineer probably ought to have known that this had in fact happened before. The most that can be said
to justify inaction is that he would have known that this could only happen in very exceptional circumstances; but
that does not mean that a reasonable man would dismiss such risk from his mind and do nothing when it was so
easy to prevent it." (CB at 362)
“Remoteness questions deal with how far liability should extend in reference to injuries caused to the plaintiff, once a
duty relationship and negligent behaviour have been established.” (Klar, Tort Law, 3rd ed., at p. 417)
"Simply stated, the issue here is whether the defendant, whose conduct has fallen below the accepted standard of the
community, should be relieved from paying for damage that his conduct helped to bring about." (Linden & Feldthusen,
Canadian Tort Law, 8th ed., at 376)
Linden arg’s that foreseeability is really just a value judgment involving policy considerations, like whether the DEF is
commercial or private actor, whether DEF has insurance, whether PLF’s injury was to person or ppty; Smith arg’s that
remoteness is really all about loss shifting, w. Cnd’n crts favouring PLF compensation for policy reasons, but hiding
this. He arg’d that judges should just admit policy rationales (eg. beh’ of parties, relative financial positions, whether
DEF’s conduct otherwise illegal, etc) and stop using all of this remoteness rhetoric.
Kodar’s caveats – these arg’mts really ignore the FAULT component of torts, which the SCC says is essential to tort
law. If Smith and Linden’s instrumentalist arg’mts are right, why even have tort law at all; why not just have a
universal insurance program?
Remoteness Problems
remoteness problems most clearly arise when there are what appear to be intervening acts/events: should DEF be
responsible for dam’s that arise as a result of the intervening act/event? 2 gen’l sit’s here
Intervening factors & Duty of care
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to protect the PLF from such harms/3rd parties. So the issue is
DEF is liable for harm caused by intervener if they had a duty
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(owed duty, but not after 6 days); Stansbie (decorator’s duty not to leave house unlocked); Canphoto (duty to secure gas tanks)
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Is the second accident within the scope of the risk created by the def negligent conduct?
Thin skull
Applies to pre-existing physical and psychological vulnerabilities - Malcolm v. Broadhurst – husband’s head injury
exacerbated wife’s nervous condition
liability – D is responsible for the extent of their neg – take your victim as you find them - cts. don’t have to analyze
“normal and foreseeable consequences of injury”
mental suffering is not too remote, therefore the thin skull rule survives WM1: Negretto (concussion psychosis).
Mental suffering is compensable under the thin skull rule just like physical injury (Malclom v. Broadhurst – eggshell
skull = to eggshell personality)
Crumbling skull
Gen’l principle of tort law = compensate plf to the extent that their condition was worsened by the DEF: Athey
this rule relates to the assessment of the damages - Smith and Leech Brain b/c the damages were reduced b/c of the
preexisting condition; Smith v. Maximovitch – rotting teeth
INTERVENING ACT
where the defendant has acted negligently but where the act of the P or 3rd party intervenes btw the neg. act and the
injury should the D be responsible for damages b/c of the intervening actions b/c those actions make the harm worse?
2 kinds of issues
Though often framed as “remoteness” issue, in many cases, especially those falling under #2, liability hinges on duty
D injures the P but a subsequent act of 3rd party or P exacerbated initial injury. Was it in the scope of the set of events
the D set in motion? [remoteness] - E.g., P commits suicide yrs later, court finds the D act factually caused the act, but
was it too remote?
Where the defendant has failed to protect the plaintiff from injury by the 3rd party (or act of the P) [duty] - often occurs
when the D has responsibility for the P (prison guard, parents)
Harris v. TTC - SCC: Driver liable - posting of warnings might meet standard of care, but not in this instance b/c there
was knowledge that kids still did it; therefore Plf contribution didn’t remove bus’s liability
Rational: where a D has a duty to prevent the injury and the injury is caused by the P or 3rd parties action, it is
not considered an intervening action
People in possession of dangerous objects have duty to take reasonable care that don’t fall into hands of person not
competent to use them: Mercer
Spagnolo v. Margesson’s Sports: - juvenile stole car from parking lot - 6 days later the thief gets in an accident,
victim sues parking lot. Appeal, no liability b/c of the length of time btw the theft and the accident. It is both duty and
remoteness argument, stronger duty argument = P was unforeseeable
Bradford v. Kanellos – fire and chicken little - D could not reasonably foreseen the conduct of the 3rd party, injury to
the P was not within the scope of risk created by the D negligence. Dissent: 3rd party reaction was reasonably
foreseeable. Point to take away: if the harm is not within the scope of the risk, then it is too remote.
also a suggestion that given the D acted responsibly by having a working fire extinguisher so reluctant to find them
liable b/c acting responsibly
Stansbie v. Troman: decorator left the house open and a theft occurred, owner sued for breach of DofC to leave the
premises in a reasonably secure state - theft was a direct result of that negligence
Canphoto Ltd. v. Aetna Roofing: left propane tanks in an unsecured position, 3rd parties medaled and caused a fire
D claimed that the 3rd party broke the chain of causation - D held liable b/c they had a duty to prevent the medaling of
3rd parties - criminal act of a 3rd party can be within the risk of the original negligent conduct – “w/n scope of risk
created by failing to secure tanks in accordance w/guidelines”
SECOND ACCIDENT
whether a the D should be liable for a second accident causing an injury
doctrine: if the second accident is within the scope of risk set in motion by the D negligent act then they will be
responsible, if “true” intervening act an the D is not liable
Wieland v. Cyril Lord Carpets Ltd - P was injured, had to wear a neck collar - diff to see through her bifocal glasses,
walking down stairs with assistance , fell = injured. D was liable, P doing ordinary activities, taking precautions, she
hadn’t had time to adjust - You are required to make adjustments when you know you should, but that doesn’t entirely
remove the D liability
McKew v. Holland - leg of P would give out sometimes due to negligent act of D P going down steep staircase
without handrail or assistance and fell - Court: P had an onus to act reasonably with regard to their injuries
If a person acts reasonably and carefully and still suffers an injury than the D will be liable - not unforeseeable that an
injured will act unreasonably, but it isn’t fair to hold D liable
Critique- maybe he should have been just contributory negligent
Priestley v. Gilbert leg injured b/c of D neg – dancing drunk, re injured leg court found it wasn’t reasonable to dance
no liability - again the critique of contributory negligent
RESCUE
general rule: if the rescuer is injured in the attempt, the person who created the perilous situation is potentially liable to
the rescuer if it is reasonably foreseeable that someone would try and rescue
Rescue cannot be foolhardy or reckless, or they could be found contributory negligent if it is on the border of being
reckless - Rescuer of the property, person creating the danger can still be liable, but assessment of
recklessness/foolhardiness is different (note 5, p. 386)
Horsley v. Maclaren D’s actions weren’t negligent, didn’t cause original dude to fall over, so he didn’t have a duty to
the subsequent rescuer
Corothers v. Slobodian - Woman injured when tried to get help - who was liable for woman’s injuries? court found
she was a rescuer while she flagged down the truck - driver that caused original accident was liable - truck driver
wasn’t negligent in trying to stop
Rescue to prevent injury damage to people treated differently to rescue for property:
Courts seem more sympathetic where rescue was to prevent personal injury rather than property damage - Toy v.
Argenti – P’s attempt to prevent damage found to be unreasonable b/c it endangered P’s life. P found partly liable for
resulting injury.
5.DAMAGES
A. No liability in negligence without proof that P suffered some injury or damage
I. Maxim: injuria absque damno (wrong or insult without damage) applies to exclude liability for wrongs that
do not cause legally recognised damage.
B. Policy/Rationale:
I. Compensatory rationale in tort law is dominant
II. Floodgates concern – “needless lawsuits must proliferate” Pfiefer v. Morrison
C. Requirements – damages that are sufficient to support a neg. action are discussed in one of the control devices:
DOC or Remoteness
6. NEGLIGENCE DEFENCES:
In defence, DEF can either:
Negate any of the 5 main elements of negli’ (ie. no duty; didn’t b. std of care; no dam’; no factual causation; or too
remote / no proximate causation)
Claim PLF contributory negligent
Contributory Negligence
Injury complained of resulted from the combined negligence of D and P.
Rationale
P expected to exercise reasonable care for his/her own safety and prevent injury to his/her own interests.
Background
Historically, apportionment b/n P and D was not permitted -
Contributory negligence was a complete bar to P’s action (recall Wagon Mound No 1, that the Ps avoided
the argument that fire was foreseeable from oil spill because it would have reflected their negligence in
having resumed work in spite of that risk. This would have been fatal to their claim).
Legislative Intervention
Contributory negligence bar abolished by legislation - – E.g. BC Negligence Act
Judicial Intervention – Current Canadian Common Law Position
SCC abolished contributory negligence bar in Canada – Bow Valley Husky (Bermuda) Ltd. v. Saint John Ship
Building Ltd. (1997) (SCC), CB, n. 2, pp. 413
Onus of Proof
D must prove that:
1. P was negligent - P’s conduct, objectively assessed, fell below reasonable conduct in the
circumstances.
a. P carelessly exposed him/herself to a foreseeable risk of harm; or
ie (Sundance)
b. P failed to take adequate precautions to avoid risk of injury,
e.g. failure to use a safety device such as a seat belt.
Here P’s negligence goes to the type and/or extent of injuries sustained.
2. Causation – P’s negligence contributed to or exacerbated their injuries.
Effect of Contributory Negligence Defence if successfully pleaded:
Partial defence
Apportionment
Liability apportioned b/n P and D(s)
Liability apportioned according to each party’s degree of fault –BC Negligence Act, s. 1(1) - D’s liability
limited in accordance with the P’s degree of fault
"the liability to make good the damage or loss is in proportion to the degree to which each person was at
fault" - s.1(1)
IF impossible to establish degrees of fault, liability is apportioned equally - BC Negligence Act, s. 1(2).
Joint & Several Liability
Where there are multiple Ds and P found contributorily negligent – no joint & several liability in BC.
P gets a several judgment – liability of each D limited to extent of their wrongdoing:
Leischner v. West Kootenay Power & Light -
BCCA held that the joint and several judgments provision under s. 4 of the Negligence Act is not
applicable in cases of contributory negligence - CB, p. 421 note 13(c).
Vicarious Liability
a form of strict liability, therefore no defence available and fault not nec’
does not displace the personal liability of the tortfeasor
is a form of liability that arise simply out of a relationship that one person has w. another. To hold someone
vicariously liable, the PLF’s got to show the necessary rela’ship btwn tortfeasor and deep pocketed/insured DEF
The most common rela’ships: master/servant, principal/agent, emp’R/emp’EE… not imposed btwn hirer and
independent k’r: Sagaz Industries (kworker bribed Cnd’n Tire. His “empl’R”/hirer not held vicariously liable)
new rela’ships will be added based on policy considerations which have been termed collectively fair recovery
and deterrence
who is in the best position to avoid the risk in the future b/c of a position of authority, power
over resources, ability to hire/fire and train
who is responsible for the risks; who is benefiting the most from the risks and should, therefore
bear the loss for the risks they create
has the tortfeasor been forced/coerced to engage in the tortious conduct by someone in a position
of power/authority? Then hold that powerful party responsible
who is in the best position to engage in loss spreading
who is most likely/best able to provide the plf w. compensation
will imposing additional liability on someone other than the tortfeasor encourage the adoption of
safer practices and accident prevention procedures
nonprofit org’s can be held v.liable: John Doe v. Bennet (bishopry held v.liable for priest’s sex’l abuse); no
charitable immunity : Blackwater v. Plint (Church held partially liable for sex’l abuse in residential schools)
Policy Justifications for Vicarious Liability
employer has the power to select, supervise, and control employees & can minimize the risk of wrongdoing and
the risk of damage.
employer takes benefits and profits of the business – should absorb losses created by wrongdoing of those who
are an integral part of the business
employers in better position than employees to pay judgments and provide real compensation to victims
employers in better position to absorb or spread the loss suffered by third parties (employees, who do not
normally carry liability insurance, are not good loss distributors) – e.g. through raising prices
deterrent effect – encourages adoption of safe practices & accident prevention measures
THE EMP’MT CONTEXT:
doctrinal test for vicarious in the emp’MT context:
1. The requisite relationship – specigfically an emp’R – emp’EE relationship
2. did the harm/wrong occur in the course of emp’MT?: Bazley v. Curry (Children’s Fnd’tn)
1. The requisite relationship
The Law differentiates between and Emp’EE and an Independent K’er w/I the Emp’mt context
GEN’L RULE: no v. liability if independent k’r
distinction twn emp’EE vs. independent k’r basically is diff’ in control (control is always a factor), but other factors to
consider (according to Sagaz) incld:
whether the worker supplies her own equipment
whether she is responsible for hiring her own staff
whether she is responsible for financial
investments/management
whether she takes on any financial risk
whether she has opportunities to make profit outside of
her salary
*this is list non-exhaustive – will depend on the facts
Kodar’s caveats – in the set of foster care v. liability cases, (eg. K.L.B. v. Brit Colum) the SCC maj fails to impose
liability b/c Prov’ doesn’t exercise enough control over these “indep’ k’rs” (Sagaz) and imposing v.liability here will
not have desirable deterrence effect. Arbour vigorously dissents, arg’ing that what’s impt is the right of control, not
nec’ly the actual control exercised in a given case and the gv’t does have increased right to control foster care parents.
Also, imposing v.liability would have a good deterrent effect and if apply the enterprise risk analysis, as we should, we
see more power and trust bestowed on the k’r and more vulnerability in the client, therefore the emp’MT materially
increased the risk and gv’t should be held v. liable accordingly
EXCEPTIONS to the gen’l rule that emp’ER not v.liable for ind k’ers: (Lewis v. British Columbia – Lewis’s husband
killed by falling rock after independent k’r hired by Ministry of Highways negli’ly did work on highway. Sues gv’t for
v.liability):
1) if the hirer / “emp’R” negligently hires or supervises the k’r
2) if the hirer / “emp’R” negligently supervises the work
3) if the k’r is hired to do unlawful work
4) if the k’r has been hired to perf a non-delegable duty
non delegable duties depend on statutory and C.Law conceptions of duty. In Lewis the crt. found a non delegable duty
b/c evidence showed:
(a) statute gave ultimate control to the gv’t;
(b) members of the public depend strongly upon the Prov’ to protect their safety;
(c) the public reas’ly expects the Prov’ to be responsible even if they do hired independent k’rs
(d) gv’t is free to leg’late that they aren’t liable for anything
2. Course of employment
when assessing the 2nd branch of the v. liability test, use the scope of employment/Salmond Test (Bazley v. Curry)
est’s that emp’Rs are vicariously liable when:
1. emp’EE’s actions were authorized by the emp’R
2. emp’EE does an unautho’d act that is so connected to the autho’d act that it can be considered a mode
of the authorized act (at issue in Bazley, where SCC found Fnd’tn v.liable b/c sex abusive conduct a mode of
doing authorized intimate acts in the emp’MT context)
Facts from Freya – in Bazley this test resulted in v. liability imposition, cf. Jacobi (bgc) where it didn’t b/c here emp’R
mandated group activites, such that link twn tort and emp EE’s mandated duties was too weak
McLachlin’s 2part approach to figure out whether an unautho’d act is a mode (Bazley)
a) look for clear precedents to see if it’s been treated as a mode before, if none, go on:
b) determine whether vicarious liability should be imposed for policy reasons (fair recovery and deterrence).
v. liability should be imposed if the emp’R’s enterprise created the risk (enterprise risk if emp’R intro’d the risk of
the emo’EE doing the wrong) creating the mere opportunity (ie. time and place) is not sufficient to impose v.
liability: B.E. v. Order of the Oblates of Mary Immaculate (Residential school not v.liable for sex’l abuse by manual
labourer) consider the power bestowed on the emp’EE by emp’R, could it be abused? To what extent was it wielded?
Also consider the vulnerability of the client
The basic question in emp’R v. liability is whether the emp’R has materially increased the risks that such tortious
wrongs would occur – this is the enterprise risk analysis
IF GIVEN A V. LIABILITY PROBLEM, HERE’S WHAT TO DO:
Applications of #2 Course of Employment Test:
NO V.L.:
-mandated group activities--sexual abuse only possible when Griffiths managed to subvert the public nature of his
duties-boys and girls club Jacobi
-manual labourer—not required to have contact with kids—went out of his base B.E.
YES V.L.
-pedophile unknowingly hired by group home --D given “care giver role”; employer (agency—Children’s foundation)
fostered risk Bazely
-Bishop exercise power over Priest (& power to discpline); grants him power and places in isolated situation, role of
psychological intimacy=substantial increase of risk John Doe v. Bennett (2004)
-DISSENT in B(E)—manual labourer-residential school—not required to have contact with kids—but “substantial
increase in risk” BE
